Berry v. Safe-Deposit & Trust Co. of Baltimore

• Decision Date: 14 March 1901
• Citation: 48 A. 502,93 Md. 240
• Parties: BERRY et al. v. SAFE-DEPOSIT & TRUST CO. OF BALTIMORE.
• Court: Maryland Court of Appeals

48 A. 502

93 Md. 240

BERRY et al. v. SAFE-DEPOSIT & TRUST CO. OF BALTIMORE.

Court of Appeals of Maryland

March 14, 1901

Appeal from orphans' court of Baltimore city.

Proceedings between Louisa C.E. Berry and others against the Safe-Deposit & Trust Company of Baltimore, executor, contesting a will filed as the last will of George R. Berry. From an order of the orphans' court rescinding an order revoking the probate of the will, said Louisa C.E. Berry and others appeal. Affirmed.

Argued before McSHERRY, C.J., and BRISCOE, JONES, PEARCE, PAGE BOYD, FOWLER, and SCHMUCKER, JJ.

Thos R. Clendinen and Wm. Colton, for appellants.

Wm Pinkney Whyte, Edgar H. Gans, and Chas. E. Hill, for appellee.

McSHERRY C.J.

This appeal is from the orphans' court of Baltimore city. The facts with which we have to deal are as follows: After the will of George R. Berry had been admitted to probate in that court, a petition was filed assailing its validity on the usual grounds of mental incapacity and undue influence. Issues were then framed, and sent to the superior court for trial. At the close of a protracted contest a verdict was rendered by the jury in favor of the caveators on two of the issues, and thereupon a motion was made for a new trial. This motion was subsequently heard, and was overruled on December 26, 1900. On the next day--the 27th--one of the counsel of the caveators took to the clerk of the superior court a copy of the docket entries, and of the issues, and a statement of the findings of the jury thereon,--which copy had not been prepared by the clerk,--and procured the clerk's signature and attestation thereto, and then carried the paper to the orphans' court. Very shortly after the counsel had secured the clerk's signature to this previously prepared document, and on the same day, an order was filed by the executor and caveatee in the superior court directing the record to be transmitted to this court on appeal from rulings of the superior court. On the 28th of December, at the request of the caveators' counsel, without notice to the counsel of the caveatee, and while the orphans' court was uninformed that an appeal had been prayed from the rulings of the superior court, the orphans' court passed an order revoking the probate which had been previously granted. Thereupon, the same day, a petition was filed by the executor asking the orphans' court to rescind its order of December 28th on the ground that it had been improvidently passed. The orphans' court very promptly rescinded its previous order of December 28th, and from that rescinding order, passed on January 9, 1901, this appeal was taken by the caveators.

The single question for decision is, was the orphans' court right in rescinding the order of December 28th, which had undertaken to revoke the previous probate? About the propriety of that action we entertain not the slightest doubt. When the issues were sent by the orphans' court to the superior court for trial, the case passed beyond the jurisdiction and out of the control of the orphans' court; and until nothing remained for the law co...