Perrin v. Praeger

Digges, J., delivered the opinion of the Court. Marie Perrin died in Cumberland, Allegany County, Maryland, on July 30th, 1927, leaving a last will and testament. By this will all of her property of every description was devised and bequeathed to Leigh Hammond, a female associate and friend of the testatrix, but no blood relation to her. Saul Praeger, a member of the Cumberland bar, was named executor in the will.

On August 2nd, 1927, the executor, accompanied by the three witnesses to the will, presented it for probate in the Orphans’ Court of Allegany County, and on that day the will was admitted to probate by that court, and letters testamentary granted to the executor. At the time of the death of Marie Perrin she left surviving her a half-brother, the appellant, as her sole heir at law. On August 12th, 1927, ten days after the order of the orphans’ court probating the will and granting letters testamentary, the appellant filed a petition in that court, alleging the death of Marie Perrin, that he was her next of kin and only heir at law, that the will had been probated and letters testamentary granted on August 2nd, 1927; and further alleging that the orphans’ court erred in admitting the alleged will to probate without requiring compliance with the provisions of sections 353, 354 and 355 of article 93 of the Code, and that the alleged will is not a true and valid will,, it having been procured by undue influence practiced upon and against Marie Perrin. The prayers of the petition were, that the orphans court revoke its order admitting the alleged will to probate and granting letters testamentary, and require proper notice to be given to the near relations of the deceased, including the petitioner, so that they may have an opportunity to object to the probating of said alleged will and may enter a caveat before the same is probated.

An answer to this petition was made by the executor and Leigh Hammond, ⁵⁴³ the sole beneficiary, in which the allegations of the petition were admitted, except that “respondents neither admit nor deny that none of the next relations of the deceased were in .attendance in court at the time said will was offered, nor do they admit nor deny that no notice was given any of the next relations of the deceased of the proposed probate of said will,” and further denying that the conrt erred in probating the will and granting letters testamentary, and that the will Avas obtained by undue influence practiced upon the testatrix. After hearing testimony in respect to the allegations of the petition, the orphans’ court passed the following order: “Testimony was thereupon taken under said petition and answer, and it appearing to this court that the proceedings already had herein in probating said will and in granting said letters testamentary were in accordance Avith the regular practico in Allegany Oounty, the prayers of the petition are hereby refused, and the probabte of the said will of Marie Perrin and the letters testamentary granted thereon are hereby affirmed.” It is on appeal from this order that the case is now presented. It is clearly shown by the record that the will in this case Avas probated, and letters testamentary granted on the estate, AA'ithin three days after the death of the testatrix, and on the same day it was offered for probate; that none of the next relations of the deceased were in attendance at that time; nor did it appear that any notice had been given to such of the next relations as might conveniently be therewith served. The unoontradicted testimony demonstrates that no notice of any kind Avas given to the near relations of the deceased, neither were any of them present at the time the will was offered for probate and probated by the orphans’ court.

The order of the orphans’ court refusing the petition of the appellant, and affirming its former action in probating the will and granting letters testamentary, was based solely upon what the court stated in its order as being “the regular practice in Allegany Oounty.” The single question necessary for decision is whether an order of the orphans’ conrt, probating a will and granting letters testamentary, ⁵⁴⁴ under such circumstances as here shown, is a valid order for the reason that such was the usual practice in that court. The petition for the revocation of the order admitting the will to probate was filed within ten days after the passage of the order, and was for the direct purpose, and only for the purpose, as shown by the prayers of the petition, of having the court revoke the probate of the will and letters testamentary. The answer to the question presented by this appeal depends upon whether or not the provisions of sections 353, 354 and 355 of article 93 of the Code, applying as they do-to every portion of the state, prevent and prohibit the valid probate of a will under circumstances such as here shown. There can be no room for doubt that if the statute requires certain things to be done, or circumstances to exist, as conditions precedent to a valid order of probate, the failure to-comply with such statutory requirements cannot be justified by reliance upon a contrary practice in any orphans’ court of the state.

Section 353 of article 93 covers cases where-a will is exhibited for probate to the register of wills in the recess of the court, and provides: “If any will or codicil be exhibited for proof to the register of wills of the county wherein the same may be proved, in the recess of the court, and any of the next relations of the deceased shall attend and make no objections, or enter no caveat, or if it shall appear that reasonable notice of the time of exhibiting the same hath been given to such of the next relations as might conveniently be therewith served, and no person shall object or enter a caveat, the register shall proceed to take the probate thereof.” Section 354 of the same article applies to cases where the will is offered for probate to the orphans’ court when in session, and provides: “If any such will be exhibited for probate to the orphans’ court of the county where the same may be proved, and any of the next relations of the deceased shall attend, or if notice shall.appear to have been given as aforesaid, and no caveat shall have been made against the same, the said court may forthwith proceed to take probate thereof.” Section 353 authorizes the register ⁵⁴⁵ of wills to take probate of a will in the recess of the court. If the court is in session he has no such power. But whether the probate is taken by the register of wills or by the court, the conditions precedent to its valid probate are the same, namely: (a) That some of the next relations of the deceased be present, or (b) that there appears to have been given notice to such of the next relations as might be conveniently served therewith. Section 355 defines what is required to be done in cases where none of the near relations attend at the offering for probate, and no notice appears to' have been given.

This section provides: “If any will or codicil be exhibited to the orphans’ court, and none of the near relations of the deceased shall attend, and no notice shall appear to have been given, the court may either direct summons to the said near relations, or some one or more of them, to appear on some fixed day to show ca,use wherefore the same should not be proved, or direct such notice to be given in the public papers or otherwise, as they may think proper; and if no objection shall be made or caveat entered on or before the day fixed, the court or register of wills in their recess, may take the probate of such will; but if objection shall be made on or before the day appointed, the said court shall have cognizance of the affair, and shall determine according to the testimony produced on both sides.” When the will in question was offered for probate to the Orphans’ Court of Allegany County, then in session, there being no next relation of the deceased present, and it not appearing to the court that notice of the intention to offer the will for probate had been given to any of the next relations, it should have proceeded in accordance with the directions contained in section 355, by either directing summons to the near relations, or some one or more of them, to appear on some fixed day to show cause why the will should not be probated, or giving such notice, by publication or otherwise, as the court might think proper. The mandatory requirement of this section is that notice be given to some one or more of the near relations of the deceased, affording them ⁵⁴⁶ an opportunity to appear at some fixed day and show cause why the will should not he probated. The only discretion lodged in the court is as to the mode of giving such notice. This construction is inescapable when we read the language following in the same section: “And if no objection shall be made or caveat entered on or before the day fixed, the court or register of wills in their recess, may take the probate of such will.” There is a sound and just reason for these statutory provisions and the requirements to be enforced by the orphans’ court, the purpose being to provide a reasonable time within which one, who would take if there were no will, may object to the probate or file a caveat to the will.

If a caveat be filed to a will before probate, the devisees and