Mrs. Ellen McKenney of Baltimore City died on March 9, 1907, leaving a paper writing, dated June 25, 1897, purporting to be her last will and testament, in which paper writing Richard H. Pleasants, the appellee, was named as executor.
On March 15, 1907, Mr. Pleasants exhibited and filed this alleged will in the Orphans' Court of Baltimore City for the purpose of probate.
Three days later, that is on March 18, 1907, before the alleged will had been admitted to probate, a formal caveat was entered thereto by Mrs. McKenney's two sons, William O. McKenney and George J. McKenney.
The caveat alleged among other things that the paper writing dated June 5, 1897, purporting to be the last will and testament of Ellen McKenney, was not the last will and testament of Ellen McKenney, but that said Ellen McKenney *Page 288 died intestate. There were also allegations of fraud, undue influence, want of mental capacity and want of proper execution of the alleged will. The appellant and Mrs. Emma Hedian, the only surviving daughter of Mrs. Ellen McKenney, were made caveatees and by citation from the Court, required to answer the premises.
It may be well here to state that by the provisions of the alleged will, a share of Mrs. McKenney's property was given to her only daughter, Mrs. Emma Hedian; a legacy of $100 to a Mrs. Mary S. Foley, and of the residue, one-half was given to her son William O. McKenney, above named, absolutely, and the other half to Edwin I. Hedian, in trust for the benefit of her other son, George J. McKenney, for life, and after his death to be divided amongst his children.
On April 10, 1907, the appellant, Richard H. Pleasants, as attorney for the executor, filed his answer to the caveat denying that Ellen McKenney died intestate, but averring that she duly and properly executed the paper writing purporting to be her will, dated June 25, 1897, when of sound and vigorous mind and body and fully capable of executing a valid deed or contract.
On May 18, 1907, the attorneys for the caveators filed the following order: "Mr. Register — Enter the petition and caveat of William O. McKenney, and George J. McKenney, as against Richard H. Pleasants, dismissed."
On May 27, 1907, the joint and several answer of Emma Hedian, Mary L. Foley and Edward I. Hedian, trustee, was filed, neither admitting nor denying the allegations of the caveat, but submitting their rights to the protection of the Court, and consenting to the passage of such order in the premises as should be proper.
On October 15, 1907, issues were framed in the Orphans' Court of Baltimore City, and sent to the Superior Court of that City for trial before a jury. By order of the Orphans' Court, William O. McKenney and George J. McKenney were made plaintiffs at the trial of the issues, and Emma Hedian, Mary S. Foley, and Edwin I. Hedian, trustee, defendants *Page 289 at such trial. The issues were six in number and of the following purport:
1. Was the paper writing dated the 5th day of June, 1897, purporting to be the last will and testament of Ellen McKenney, signed by her, or some other person in her presence, and by her express direction and attested and subscribed in the presence of two or more credible witnesses?
2. Was the same read to her or by her, or known to her at or before the time of the alleged execution thereof?
3. Was the execution thereof procured by fraud?
4. Was the execution thereof procured by undue influence?
5. Was she then of sound and disposing mind?
6. Was said paper writing, dated June 5th, 1897, and purporting to be the last will and testament of Ellen McKenney revoked by her subsequent to the execution thereof?
The issues were submitted to the jury in the Superior Court on March 20, 1908, and a verdict rendered in favor of the mental capacity of Mrs. McKenney, and of the due execution of the paper writing of June 5, 1897, also finding no fraud, or undue influence or want of mental capacity, but that said paper writing purporting to be the last will and testament of Ellen McKenney, had been revoked by her, subsequent to the execution thereof.
The appellant, as will be seen, was not a party to these proceedings, but on March 23, 1908, three days after the rendition of the verdict, he filed a motion in the Superior Court requesting it "not to certify the findings of the jury to the Orphans' Court." Notwithstanding these objections the findings of the jury were finally transmitted to the Orphans' Court on April 4, 1908.
On the same day, that is on April 4, 1908, the appellant filed a petition in the Orphans' Court praying that Court "not to receive or act upon the findings of the jury," for the following reasons, in brief:
1. Because the findings were had in reference to a paper writing dated June 5, 1897, while the paper filed purporting *Page 290 to be the last will and testament of Ellen McKenney was dated June 25, 1897.
2. Because the issues sent to the Superior Court were not raised by the pleadings.
3. Because the omission of the name of Richard H. Pleasants, executor, as a party to the proceedings, at the trial of the issues in the Superior Court, was a fatal omission.
4. Because there was no real contest in the Superior Court as the answer of the defendants as caveatees, neither admitting nor denying the allegations of the caveat raised no issues whatever.
5. Because the appellant had been eliminated by a dismissal of the caveat as to himself, and all the proceedings thereafter were had without notice to him, and that the entire proceedings were the result of collusion.
On April 20, 1908, the caveators filed their answer denying the right of the appellant to be considered a party in the cause, or as being entitled to object to any proceedings had or to be had therein, alleging that the error in the date of the paper passed upon by the jury was merely a clerical error and as the paper of date June 25th, was offered in evidence, the findings of the jury were upon that paper; that the issues were properly framed upon the pleadings in the Orphans' Court; and that the parties to the caveat were the proper parties; and denying that there was no real contest.
On April 23, 1908, Emma Hedian, Mary L. Foley, and Edwin Hedian, trustee, filed their answer to the petition of the appellant, denying that he had any standing whatever to be heard in the Orphans' Court in the premises; averring that all the necessary and proper parties were parties to the proceedings in the Superior Court; admitting that they had been advised that upon the indisputable facts of the case the paper writing of date June 25, 1897, had been revoked, and denying all and singular the other allegations of the appellant's petition.
The petition and answers were all sworn to, but, so far as the record discloses, no testimony in support of the allegations *Page 291 of either the petition or of the answers thereto was adduced.
Subsequently on June 29, 1908, all the parties to the caveat proceedings, to wit: Emma Hedian, Mary L. Foley, Edwin I. Hedian, Trustee, George J. McKenney and William McKenney, moved to dismiss the appellant's petition —
1. Because the petitioner had no interest in the controversy.
2. Because no letters testamentary had been granted to the said Richard H. Pleasants.
On the 31st day of July, 1908, the Orphans' Court passed an order dismissing the appellant's petition and, acting on the findings of the jury to the effect that the paper writing propounded as and for the last will and testament of Ellen McKenney, had been revoked by her subsequently to its date, refused probate thereof.
From this action of the Orphans' Court, the petitioner, Richard H. Pleasants, brings this appeal.
It should be here stated that pending the caveat proceedings, the appellant was appointed administrator pendente lite of the estate of Ellen McKenney, deceased, though no claim of right to participate in the caveat proceedings seems to have been made on that ground.
While the briefs of the counsel for the respective parties present several questions for our consideration, which were elaborately discussed at bar, we think we need only consider one of these questions, and that is whether or not the appellant, either in his individual capacity or as administrator pendentelite, was a necessary party to the proceedings connected with the caveat of the alleged will?
In this connection it should be remembered that a contest in the Orphans' Court, involving the validity of a paper writing purporting to be a will, is a proceeding in rem in which all persons interested may appear and be heard upon the question, and that the order of the Orphans' Court is the judgment of a Court of competent jurisdiction directly upon *Page 292 the subject matter in controversy. Worthington v. Gittings,56 Md. 542.
When a decision is made between opposing parties in such a contest it is a judgment in rem conclusively establishing either the validity or invalidity of the alleged will. Emmert v. Stouffer, 64 Md. 543.
The purpose of sending issues to a Court of Law for trial under Sec. 254 of Art. 93, is to enable the Orphans' Court to advertise itself of the real facts of the case. These when found by the jury are conclusive, and the Orphans' Court has no discretion, but must enter the judgment in conformity with the finding of the jury. Sumwalt v. Sumwalt, 52 Md. 338.
The proceedings are, however, all the while within the probate powers of the Orphans' Court. Warford v. Colvin, 14 Md. 532.
Though the jury may find affirmatively or negatively on the questions submitted, yet such finding may not determine the validity of the will, for there may be facts outside of the verdict and not inconsistent therewith which will decide the question, but when the jury find a fact which necessarily determines the invalidity of the will, the Orphans' Court are imperatively required to enter up judgment in conformity thereto, and the granting of any other issue would be a wholly useless and nugatory act. Pegg v. Worford, 4 Md. 385; Taylor v.Price, 21 Md. 356.
When issues are sent by the Orphans' Court to a Court of Law, the province of the latter Court is simply to submit to the jury the determination of the issues without reference to whether they were properly presented by proceedings in the Orphans' Court.Cooke v. Cooke, 29 Md. 103.
Whether all persons interested in the will are actual parties or not, the finding of the jury is binding and conclusive upon them as to all questions covered by the issues actually submitted to the jury for its determination. Worthington v. Gittings,supra.
There is no doubt but that a person named as the executor *Page 293 of a paper writing purporting to be a will, has such an interest in the proceedings relating to its probate as entitles him to be made a party to any contest in regard thereto, but where a caveat is filed and the contest takes place before probate, the person named as executor must, if he desires to defend the will, do so at his own cost and expense. Townsend v. Brooke, 9 Gill, 90;Gorton v. Perkins, 63 Md. 589.
He cannot therefore be regarded as a necessary party to such proceedings in his individual capacity, where the contest takes place before letters testamentary have been granted to him.
As to the necessity of the appellant being made a party to the proceedings as administrator pendente lite, this Court in a recent case, in a very satisfactory opinion by SCHMUCKER, J., held that: "It is not the duty in this State of an administratorpendente lite to conduct at the expense of the estate a litigation to establish an alleged will of the decedent or to defend caveats to papers purporting to be wills. The contest in such litigation is between the next of kin and the parties claiming under the alleged wills." Harrison v. Clarke,95 Md. 313. So that neither in his own right nor as administratorpendente lite was the appellant a necessary party to the litigation concerning the validity of the alleged will.
It is true that in his own right as the person named as executor, he had such an interest in the subject matter of the litigation as entitled him, if he desired to defend the alleged will, to be made a party to the proceedings, but although he filed his answer to the caveat as attorney for the executor and was, therefore, in the case as an attorney as well as in his own right, yet from the date of his dismissal, on May 18, 1907, till October 15, 1907, when the issues were made up and sent to the Superior Court for trial, he made no effort to have himself reinstated as a party to the litigation, although it would seem that by the exercise of ordinary vigilance he would have discovered the fact of his dismissal before the issues were made up. And even after the record was transmitted to the Superior Court, and the trial was proceeded with there, he *Page 294 seems to have stood by and allowed the case to be conducted to a conclusion, in that Court, and then, after verdict rendered, for the first time, interposed objections to further proceedings in the case. Whilst Courts are ever ready to aid vigilant suitors, they will not encourage laches. These objections being unavailing in that Court, were renewed by his petition filed in the Orphans' Court a few days later, that is, on April 4, 1908. In this petition it is not alleged that he then only recently obtained knowledge of his dismissal as a party defendant but only that after his dismissal the proceedings "were had without notice to him."
Had he promptly upon discovering the fact of his dismissal filed his petition in the Orphans' Court, setting forth that such dismissal had then only recently come to his knowledge, and that the same had been accomplished and suppressed by fraud and collusion, he would, upon proof of these facts, have been entitled to be reinstated as a party defendant and to have participated in all the subsequent litigation respecting the subject matter of the controversy; and notwithstanding the finding of the jury, the Orphans' Court would under such circumstances have been justified in rejecting such finding, and in sending the issues to be retried before a jury with the appellant as a party defendant to the proceedings.
But his petition filed on April 4, 1908, not only does not state when the fact of his dismissal first came to his knowledge, but neither does it allege fraud, and though it contains the statement that "the entire proceedings were the result of collusion," yet it does not set forth with sufficient particularity of what the collusion consisted, nor is there any proof, whatever, to sustain the charge.
Even if the proceedings be irregular in any respect, in the absence of fraud and collusion clearly alleged and proven, the appellant had not after the finding of the jury, and standing in Court to impeach them or call them in question. McCambridge v.Walraven, 88 Md. 378; Worthington v. Gittings, supra.
After carefully examining the record in the case and the *Page 295 authorities cited by counsel, we can find no ground for reversing the order of the Orphans' Court, dismissing the appellant's petition, and rendering judgment on the verdict of the jury.
We have not considered the motion to dismiss the appeal, because it does not clearly appear from the affidavits filed, whether the delay is transmitting the record was attributable to the fault of the Register or of the appellant, and we therefore express no opinion in regard to the legal question intended to be raised by such motion.
Order affirmed with costs to the appellees.