143 A. 585 | Md. | 1928
The two appeals in this case question the propriety of orders passed by the Orphans' Court of Washington County appointing an administrator ad litem and refusing one of several issues proposed for transmission to the circuit court for trial. The administrator ad litem was appointed to defend the will of Ellen Carpenter, deceased, against a caveat filed before probate. No reason for such an appointment is suggested by the record except the fact that none of the persons interested in sustaining the will appeared and answered the caveat in pursuance of the court's order to that end, though all were duly notified. This was not in itself a sufficient ground for the action of which the first appeal complains. The beneficiaries of the will were legally capable of defending it against the caveat, and, so far as the record shows, they were not entitled to have their defense made by an administrator ad litem at the charge of the estate. If the caveat had been filed after probate, it would have been *34
the duty of the executor to defend the will, and his reasonable expenses incurred in the litigation would be payable out of the estate regardless of the result. Parker v. Leighton,
It is only for the purpose of providing, when reasonably necessary, for the defense of the will offered for probate that the appointment of an administrator ad litem is permissible.Friedenwald v. Burke,
The order of appointment here contested was passed on the day designated by the court for the appearance of the parties summoned. The record does not disclose any inquiry or information as to the real cause of their failure to appear in response to the court's order, or as to any circumstances by which the appointment of an administrator ad litem might be justified. There is consequently no apparent and adequate basis upon which it can be sustained as an exercise of the court's sound discretion.
The appeal from the order appointing the administrator adlitem was not entered until he had filed his answer to the caveat and a replication had been filed by the caveators and issues had been proposed by them for transmission to the circuit court. It is contended that by thus proceeding the caveators conclusively acquiesced in the previous order and are thereby estopped from disputing it on appeal. In support *35
of this contention the appellee has cited the cases of Fisher v.Boyce,
The present appeal, from the order appointing the administratorad litem, was taken within the statutory time, and on the day after the filing of the replication and proposal of issues. The right of appeal thus promptly asserted was not, in our opinion, conclusively waived by the intermediate procedure. It would seem to be unduly extending the principle of estoppel to apply it to the facts of this case. *36
By the order against which the second appeal is directed, the court, in determining the issues to be submitted for trial, excluded one proposed by the caveators, which inquired whether a paper purporting to be the last will of the decedent was revoked by a subsequent alteration of his estate through the execution of a certain deed of trust. In lieu of that issue the court approved one which simply submitted the question whether the testamentary paper was revoked after its execution. The granted issue on the subject of revocation is in the precise form sanctioned by this court in Brewer v. Barrett,
Orders reversed, and case remanded.