Pilert v. Pielert

⁴⁰⁸ Sobelopp, C. J., delivered the opinion of the Court. Two sons of a decedent appeal from the refusal of the Orphans’ Court of Baltimore City to rescind the grant of letters testamentary to their uncle, a brother of the decedent. It is claimed that insufficient notice was given the appellants before the probate of the will and the grant of letters. j Edward Pilert, Sr., of Baltimore, died on December 22, 1951, survived by two sons — Marshall Lee Pilert of Wayne, Pennsylvania, and Edward Pilert, Jr. of Ormand Beach, Florida. On January 2,1952, Alfred J. O’Ferrall, Jr., an attorney, notified the sons, appellants here, by registered mail, that their father’s will would be presented for probate on January 15th at 11 A.M. These letters were delivered to the addressees in Pennsylvania and in Florida on January 4th and January 5th respectively.

On January 7th, the son living in Pennsylvania, asked Mr. O’Ferrall for a copy of the will and suggested that a copy be sent to his brother in Florida. On January 9th copies were mailed, but while the Pennsylvania son received his in regular course, the son living in Florida did not receive his copy until January 13th. Two days later, on the date mentioned in the letters, the will was offered and admitted to probate, and letters testamentary were granted to Charles W. Pielert, a brother of the decedent, who is named in the will as executor. On January 25, 1952, the appellants filed their petition to vacate the order admitting the will to probate and to revoke the letters testamentary granted to their uncle.

This appeal is from an order dismissing the petition. The appellants’ contentions are: first, that the notice given by registered mail to the non-resident appellants could not validly be made in that manner but should have been by publication; and secondly, that the notice received by the appellants did not give them a reasonable time in which to object to thé probate of the will. The preliminary quéstion to be decided is, who is entitled to notice? Section 373 of Article 93 of the Annotated Code of Maryland, 1951 Ed., reads as follows: ⁴⁰⁹ “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.” It will be noted that not all of the next of kin but only such as might conveniently be served with notice are required to be notified.

Section 375 is as follows: “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 cause 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.” Again it is to be noted that not all of the near relations need attend when the will is exhibited to the Orphans’ Court. The section provides that if none of the near relations shall attend and no notice