Stanley v. Safe Deposit & Trust Co.

Boyd, J., delivered the opinion of the Court. This is the second appeal by these appellants from orders passed by thé Orphan’s Court of Baltimore County in relation to the will of Joseph Cox, deceased, which was admitted to probate by that Court on the 22nd day of December, 1896. In August, 1897, they filed a petition attacking the testamentary capacity of the deceased, and alleging that he was induced to execute the paper writing purporting to be his last will and ⁴⁰³ testament by undue influence practiced upon him, etc., and prayed that issues be framed and sent to a court of law for trial. After the appellee had answered, another petition was filed asking for issues on the preliminary question as to the residence of Joseph Cox.

The Orphan’s Court having dismissed that petition, an appeal was taken to this Court which affirmed the order (Stanley et al. v. Safe Deposit and Trust Co., 87 Md. 450 ), and the appellants then filed another petition asking for issues framed as follows: “ i. Was the paper writing dated November 13, 1896, alleged to be the last will and testament of Joseph Cox, and which is now in controversy, admitted to probate by the Orphans’ Court of Baltimore County, on the 22nd day of December, 1896, in accordance with the requirements of Section 329 of Article 93 of the Code of Public General Laws of Maryland?” “ 2. Was said paper writing admitted to probate ‘ in accordance with the requirements of the law of the State of Maryland, regulating and affecting and controlling the probate thereof? ’ ” We will not stop to discuss any technical objections to the form of these issues, as they have not been pressed in this Court, but will proceed at once to the consideration of the petition. The right to have these issues sent to the Circuit Court is based on the allegation that none of the relations of the deceased had any notice or knowledge that the will would be offered for probate and none of them were present when it was so offered.

The substance of the decision of this Court on the former appeal was that the Orphans’ Court of Baltimore County had jurisdiction to determine where the residence of the testator was and that inasmuch as it was necessary for it to determine that such residence was in Baltimore County before it could admit the will to probate, or grant letters, the remedy of the appellants, if there was error, was by an appeal from its decision or by a proper application made to that Court in due season to rescind the order admitting the will to probate, and that the question of ⁴⁰⁴ residence could not be raised in the way there attempted —asking for issues to the Circuit Court after the will had. been admitted to probate. It was there said: “ The evidence upon which it (the Orphans’ Court) based its decision could not be looked to by this Court (even if it were in the record) to determine whether the Orphans’ Court correctly decided the question of residence, except upon an appeal from that decision, and there is no such appeal before us. The subject being within the Court’s jurisdiction, all acts done as consequences of and pursuant to its decisions on a matter of fact that gave it the right to exercise that jurisdiction, are valid until' reversed on appeal or set aside by its own order, even though it should subsequently appear that the conclusion reached on that matter of fact was not actually warranted.” Under that decision the residence of the testator is no longer an open question so far as it affects the right of the Orphans’ Court of Baltimore County to admit this will to probate and if there be no valid reason other than the question of residence, it is conclusively settled and determined that that Court had jurisdiction in the premises. The first question to be now determined is how far do the principles announced in that case apply to this appeal?

That the reasoning of the opinion is applicable to the contention of the appellants that they are entitled to have these issues sent to the Circuit Court seems to admit of but little doubt. To enable the Court to proceed to take probate of a will, so as to bind the parties interested, some of the next relations of the deceased must attend when the will is exhibited for probate, or “ 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.” Art. 93, secs. 327 and 328 of the Code. Section 329 of that Article makes provision for a summons to the near relations, or some one or more of them, or for notice in the public papers or otherwise, as the Court may think proper, in the event that none of the relations attend and no notice shall appear to have been ⁴⁰⁵ given. There is thus imposed on the Orphans’ Court the duty of requiring the attendance of some of the next relations, or of satisfying itself that the notice provided for by section 327 was given, and that Court not only has jurisdiction but it is its duty to determine whether there was such attendance or such notice was given.

Sections 327 and 328 evidently do not contemplate a formal notice -such as a summons or something in the nature of an order of publication, as section 329 provides for that character of notice in the event of the other not appearing to have been given, but they refer to a notice to be given by the executor or other person exhibiting the will to the Court for probate, and if it appeared to the Court that such reasonable notice was given, as provided for in section 327, it unquestionably had jurisdiction to proceed to take probate of the will. Having the jurisdiction to decide that question and having decided it, as we must presume it did unless we assume that it wholly disregarded the express provisions of the law, which we would not be justified in doing, its decision cannot be reviewed in the way now attempted. In the other appeal we said: “ The question is not whether the Court rightly decided, but whether it had a right to decide what it did decide. If it had a right to decide the question of residence, then it had the right to determine whether it had jurisdiction to admit the will to probate, and if it decided that preliminary question erroneously its decision was subject to review upon appeal or to reversal by the Court itself upon proper application made to it for that purpose in due season.” What is there said as to the question of residence is equally applicable to that of notice and is conclusive against the right of the appellant to have this question submitted to a jury under issues to be framed by the Orphans’ Court whilst the probate still stands.

By the reference to the