| Md. | Nov 25, 1864
after having stated the case (ante pp. 34-7-349,) delivered the opinion of this Court, as follows:
By section 251, of Article 93 of the Code, provision is made that in case of an appeal from the final decree of an Orphans’ Court, any motion or application to the Court, and the order or decree therein shall be filed as part of the proceedings, and shall be subject to the judgment and revision of the Appellate Court. In view of the authority thus conferred, we shall consider the ruling of the Orphans’ Court in rejecting the petition of the caveators, in which they pray that another individual may be substituted as their next friend in the place of Leonard J. Mills.
This application was made by infant petitioners who are always regarded as under the especial protection of the Orphans’ Court. They allege a very sufficient reason for the interposition of the Court: that Mills was a material witness for them, and that the materiality of his evidence was discovered after the disclosure of the evidence of William H. Ward, the attorney who wrote the will in controversy. We think the Court ought to have granted the application upon terms, if any costs had been incurred for which Mills as a party to the record would have been answerable. In the case of Helms vs. Franciscus, 2 Bl. Ch. Rep., 550, it is said: “It is clear that any one so long as he stands before the Court as next friend of an infant or feme covert plaintiff, being liable for costs, is therefore an interested and incompetent witness. But where the object is not to favor the escape of such next friend from any liability, arising from the suits having been improperly instituted or conducted by him, he may be made a competent witness by being discharged, and
The analogy between proceedings in Chancery and in the Orphans’ Court, in this particular, would have justified the Court in ordering the substitution, and we think it was error in the Court to refuse to do so.
The Court also erred in dismissing the petition of the caveators in which they pray for a plenary proceeding, and that the parties applying for a probate of the will be required to answer under oath. This petition was designed to lay the foundation for a plenary proceeding, and would have secured to the caveators the benefit of the provisions of sec. 249 of the 93rd Article of the Code. See also the case of Cover vs. Stockdale, 16 Md. Rep., 11.
The Court also erred in refusing to order issues to be framed, at the' time the caveators prayed therefor. A substantial reason is assigned by them why issues should .be framed: “That they have material testimony to offer-affecting the probating of the paper writing, and that some of the witnesses who are competent, and whose evidence is material to the controversy, reside in the City of Washington, beyond the jurisdiction of this Court, that’ your petitioners have endeavored to procure their attendance up to this time, in vain, and that they are without any process to force their attendance.”
In the case of Barroll & Cannell vs. Reading, 5 H. & J., 175, Judge BucháNAN referring to the Act of 1798, ch. 101, sub ch. 15, secs. 15, 17, says: “The regular mode of proceeding in opposition to the admission of a will to probate is by a caveat; and it may often happen, (and probably most frequently does happen) that the necessity for a plenary proceeding and trial by jury is only discovered after a part, at least, of the testimony is taken; and at any stage of the proceedings, before final adjudication,
It is, however, contended by the appellees, that there is a difference between the above Act and the Code. We have carefully examined and compared them, and find no material difference. The right to have xdenary proceedings is equally secured by the Code.
The authorities referred to by the appellees as to waiver of prior rights by proceeding to final decree are cases at law. The caveators in this case, by temporarily submitting to the interlocutory orders of the Court, did not in our judgment debar themselves from any rights they might have, especially in view of the revisory power of this Court upon appeal under the 251st section of Art. 93.
Without expressing any opinion upon the merits of the case on the evidence, we shall reverse the decree of the Orphans’ Court, and remand the cause for further proceedings in accordance with the views expressed by this Court,
Decree reversed, with costs to tike appellants, and cause remanded,