Mead v. Tydings

Briscoe, J., delivered the opinion of the Court. The first question to be considered in this ease is presented upon the motion to dismiss the appeal upon the ground: first, that the orders appealed from were in the discretion of the Orphans’ Court, and therefore not appealable orders; and second, because the orders were not so far final as to admit of an appeal. An examination of the record and of the orders appealed from, have satisfied us that the motion to dismiss must prevail. The facts essential to an understanding of the questions to be disposed of by us appear to be as follows: Sarah Elizabeth Wareheim died in Harford County, Md., on the 26th of March, 1916, leaving a last will and testament dated the 5th day of February, 1914.

She devised and bequeathed all her property to Mary Y. Callóse and named her and one Millard E. Tydings, as her executors. ⁶¹⁰ On the 17th of April, 1916, the will was filed and proved in the Orphans’ Court, but not admitted to probate, and ap'plieation was made for letters testamentary. On the 7th of August, 1916, the appellants filed a petition and caveat to the will, praying that the will be not admitted to probate and that Mary Y. Gallóse, legatee and devisee, be required to answer the caveat and petition. This petition was answered by the respondent, denying the allegations thereof under oath, and subsequently issues were directed to be sent to the Circuit Court for Harford County to be tried by a jury. Hpon the trial of the issues it was directed that the appellants should be plaintiffs and Mary V. Callóse, devisee and legatee named in the will, should be defendant.

On the 3rd of September, 1918, the appellees filed a petition in the Orphans’ Court asking leave to appear as executors named in the will to the petition and caveat of the 7th of August, 1916, and to defend the will. An order was passed on this petition on the same date making them parties to the proceedings caveating the will with leave to defend the will, “the same as though they had been originally made parties to the proceedings to defend, etc. On the 6th of September, 1918, the Orphans’ Court overruled a petition and motion of the appellants to set aside and-rescind the order passed on the 3rd of September, 1918, making the appellees as executors, parties to the caveat proceedings to defend the will, and it is from this order that the first appeal has been taken. While the proceedings in this case in the Orphans’ Court are somewhat irregular, no valid reason can be assigned, why the executors should not be made parties to the proceedings upon their application, and if they desired to defend the alleged will. It is well settled that when a caveat is filed after a will has been admitted to probate and letters testamentary have been granted it is the duty of the executor under such circumstances to defend the will thereby assailed.

Compton v. ⁶¹¹ Barnes, 4 Gill, 55 ; Glass v. Ramsay, 9 Gill, 456 ; Gorton v. Perkins, 63 Md. 589 ; Miller v. Gehr, 91 Md. 709 . Where a caveat however has been filed to tbe will and a contest takes place before the probate and before letters testar mentary have been granted, an executor is uot regarded as. a necessary party thereto hut he has. such an interest in the litigation as entitles him, if he desires-, to defend the will and to he made a party to the proceedings. Townshend v. Brooke,