delivered the following opinion:
I concur in the reversal of the decree appealed from' in this case, but not in the reasons assigned for such re*555versal. As I understand the opinion, it asserts that the action of the Orphans’ Court, in declaring against the validity of the paper purporting to be the will of Mrs. Stouffer, was simply void, because the paper had not in fact been propounded for probate by the parties producing it. In other words, because the parties producing the paper had not asked the Court to admit it to probate as a valid will, therefore the order of the Court rejecting the paper and granting letters of administration was wholly without effect upon the paper as a will, — the Court, as supposed, having assumed jurisdiction in the premises without warrant of law.
This ground for declaring the proceeding simply void and without effect, it strikes me, has too much of the appearance of a technical refinement, to be altogether sound; and I do not think it has proper foundation in.fact. The paper was certainly propounded for the action of the Court.
The two sons named as executors in the paper exhibited were the only children and heirs-at-law of the deceased, and they were made devisees and legatees for life, with remainder to their children. They produced the paper, purporting to be the will of their mother, to the Orphans’ Court, and submitted the same to the judgment of that tribunal, as they were bound to do under the law; but in their petition, they repudiated the nomination of themselves as executors, and submitted the paper with a disclaimer on their part, that they offered it for probate, for the reason, as they alleged, that the deceased was incapable, for want of mental capacity, to make a valid will; — -thus accompanying the exhibition of the paper with a caveat against its admission to probate. In the same petition, they prayed to have letters of administration granted to them upon the estate.
Upon this petition, the Orphans’ Court passed an order fixing a day for hearing and inquiring “into the matters and things set forth in said petition and gave directions *556for summoning the witnesses to the paper exhibited, and such other-witnesses as the petitioners might desire. On the day set, the hearing was had upon the testimony of witnesses produced at the instance of the petitioners; and the Court, upon hearing the evidence, then and there, passed the order of the 4th of February, 1885, whereby it is recited, that the Court having heard the testimony of witnesses, “concerning the paper purporting to be the last will and testament of the said Eliza Stouffer, and the Court being satisfied that at the time the said paper was executed by her, she was not capable of making a valid deed or contract, and that the said paper-writing is not her last will and testament,” — thereupon it was adjudged, ordered and decreed, by the Court, that the said Eliza Stouffer died intestate, and that letters of administration upon her estate be granted to Daniel B. Stouffer.
Now, with such a state of proceedings as this, disclosed by the record before us, it is rather difficult, I think, to say that the paper was not before the Orphans’ Court, and that the sons and heirs-at-law of the deceased did not invoke and obtain the judgment of that Court against the validity of the paper as a will, and so procured probate to be refused. The Court was one of competent jurisdiction, and the subject-matter was plainly within the jurisdiction ; and though the proceeding may not have been formal and regular, still there was a judgment evoked that binds and concludes the parties to the proceeding. Those parties could never be heard to contend, in the face of the proceedings had at their instance, that the paper should ever thereafter be admitted to probate. The judgment of the Orphans’ Court, therefore, is not a mere nullity, and without any effect upon the validity of the paper. It was necessary to adjudicate the paper invalid as a will, and to refuse probate thereof, before the Orphans’ Court could proceed to declare, as it did, that the deceased had died intestate, and to grant letters of administration as upon an *557intestate’s estate. Both the Orphans’ Court and the parties invoking its action, clearly understood that the paper exhibited had been finally refused admission to probate;
But, the question here is, whether the refusal ofprobateto this paper, under the circumstances of the case, will finally bind and conclude the parties entitled in remainder, those parties being non-residents, and some of them infants, and who were in no manner represented in the proceedings that took place in the Orphans’ Court in regard to the paper exhibited by the two sons named as executors therein,' — those proceedings being entirely ex parte f
The two sons named as executors repudiated the appointment, and opposed the admission of the paper to probate. It was their personal interest to do so, and it was their strict right also. But their assuming such position left the will of the deceased without a friend to vindicate it before the Court. It was produced and exhibited to the Court by its enemies simply and solely for the purpose of having its validity pronounced against; and, of course, in the absence of any representative of the deceased, or her estate, there was but small chance for the support of the paper as a valid will. ■ Where, as in this case, there is no party before the Court who has an interest in supporting a testamentary paper produced, the general principle is, that the Court, before it proceeds to act, will require the appearance of such a party, or some one to represent him (Redwill vs. Redwill, 3 Phillimore, 410); and that course would seem to be dictated by the first principles of justice. But with respect to the paper in question no such course was pursued.
But as the parties in interest were non-residents, and therefore beyond the reach of process from the Court, and were without legal notice of the proceedings, what course could have been pursued in order to make binding upon those parties the order of the Orphans’ Court declaring against the validity of the paper, and refusing probate *558thereof? In such case, according to my opinion, there ought to have been appointed an administrator pendente lite, charged with the special duty of defending the integrity of the paper produced, and securing for it admission to probate, if that was attainable upon full and fair investigation.. That there was an inherent power in the Orphans’. Court, as a Court of probate, to make such an appointment, and for such a purpose, I think there can he no doubt. Walker vs. Woollaston, 2 P. Wms., 576, 589; Davis vs. Charter, 2 Phill., 545, 550. Such a power would seem to exist from the necessities of the jurisdiction, and for the general purposes of justice ; and such has been the opinion of Courts of the highest authority.
In the very recent case of McArthur vs. Scott, 113 U. S., 340, a question very analogous to the present was largely considered. That was a case where a will was admitted to probate in common form, but afterwards the executors withdrew, and proceedings were taken to contest the validity of the will, and the result of the proceeding was that the probate was annulled and the will declared void. A question subsequently arose as to the effect of this proceeding upon the rights of unborn grandchildren entitled in remainder; and it was held, that, because the estate, and the rights of the unborn grand-children, were left unrepresented in the contest against the probate, the decree annulling the probate was absolutely void as against such grand-children, and that their rights were in no manner affected by the proceeding. And the Supreme Court in- that case, speaking of the power of a probate Court to appoint an administrator pendente lite, to defend a will or probate, say: “Nor can we doubt that the Court, in the exercise of the appropriate branch of its jurisdiction, (probate jurisdiction,) might in its discretion have granted administration limited to the single object of defending the will and the probate against the bill in equity of the heirs. Courts vested with the jurisdiction of *559granting letters testamentary and of administration have tbe inherent power of granting a limited administration, whenever it is necessary for the purposes of justice.” And they say, “that the powers exercised by the English Courts in this respect appertain to the Courts of like jurisdiction in this country, although not specified in the statutes under which they act.”
Assuming then that the Orphans’ Court had the power to make such an appointment, and that it was its duty to exercise the power for the protection of the parties interested in remainder, but neglected or disregarded that duty, should the ex parte order, pronounced against the paper, any more than the order passed in-more solemn form in the case just referred to, be regarded as binding upon the rights of the absent and undefended parties ? The order or decree in the case of McArthur vs. Scott was passed in the exercise of mere probate jurisdiction, expressly conferred by statute; and because the Court had failed to place some person in -a representative relation to the interests of the unborn grand-children, that decree or order revoking the probate and setting aside the will, was held to be a nullity as against those parties. For the same reason the same result would seem to follow in this case.
It is true, the paper produced in the Orphans’ Court could never have any effect until admitted to probate as a valid will. But there is no limitation as to the time within which a paper shall be propounded for probate, nor will any lapse of time exclude the inquiry, whether a certain paper constitutes the will of a party or not. Clagett vs. Hawkins, 11 Md., 381, 387. And though the Code provides (Art. 93, sec. 321,) that where the Orphans’ Court adjudicates against the probate of a will or codicil, such paper “shall not be received for probate in any other county, it by no means follows that parties not bound by the order refusing probate, shall be excluded from thereafter propounding the paper for probate in the same county. That *560would seem to be allowable, if not by clear implication from the terms of the statute, certainly from the necessity of the case, and upon general principles of justice; and that too upon the same principle that the Court may, at any time, be applied to to revoke or recall a probate previously improvidently granted, as in the case of Clagett vs. Hawkins, supra.
With this view of the case, and the rights of the parties interested in remainder, in having the paper admitted to prohate, I quite agree that the purchaser of the property, the present appellant, ought not to he compelled to accept the property under the sale made by the heirs-at-law ; and I therefore concur in the reversal of the decree.