
    STEPHEN A. POTTS et al. vs. PHILIP E. POTTS ET AL.
    
      Appealfrom Orphans' Court — Finality of Order.
    
    To a petition in the Orphans’ Court alleging that a will had been obtained by fraud and undue influence, the executors filed an answer setting forth that they had passed a final . account distributing the estate and that the petitioners had executed releases. The Orphans’ Court adjudged that the answer was not sufficient and ordered the executors to answer further. Held, that no appeal lies from this order because it is not final.
    Appeal from the Orphans’ Court of Talbot County.
    The cause was argued before McSherry, C. J., Fowler, Page, Boyd, Pearce and Schmucker, JJ.
    /. Frank Turner (with whom was Joseph B. Seth on the brief), for the appellants.
    No appearance for the appellees.
   Fowler, J.,

delivered the opinion of the Court..

Perry Potts, late of Talbot County, died leaving a last will by which the appellants, Stephen A. Potts and William H. Potts, were appointed executors. It was duly admitted to probate, and the executors, having accepted the trust, proceeded to administer the estate. On the 19th of October, 1897, they passed their final administration account in the Orphans’ Court of Talbot County. The appellees who are children of the testator and legatees under his will executed a deed of release to the executors by which they acknowledged full payment of the legacies bequeathed to them, and released the executors from all claims on account thereof. But on the 12th of July last they filed a petition in the Orphans’ Court in the nature of a caveat alleging fraud, undue influence, want of testamentary capacity and that the will was not executed in due form as required by law. In their answer to this petition the executors, after alleging that they had fully administered the personal estate, and had passed their final account, set up and pleaded the foregoing release as an absolute estoppel. The Orphans’ Court, however, on the 27th of September last passed an order adjudging that the answer was not sufficient, and requiring the executors to answer fully. From this order they have appealed.

(Decided December 21st, 1898.)

It is evident, however, that the order appealed from is not final in its nature, and therefore no appeal lies from it. The fact that the Orphans’ Court by its order declared that the defence set up by the answer was not sufficient, and required a further answer demonstrates that its action was not final. It is possible that although the defence relied on was erroneously held insufficient, yet some other defence may have been set up which might have been held good, and the erroneous action now complained of would have been without injury. Hence the necessity and the wisdom of the provisions of our Code which have been held to allow appeals to this Court only from final orders or orders final in their nature. It was suggested that the order appealed from virtually decides that the executors have no right to rely upon the estoppel set up in their answer, and that they are entitled to have that question decided in order to avoid expensive litigation. But the difficulty is that the Orphans’ Court has no jurisdiction to pass upon the validity of the releases. That is the province of another jurisdiction. It was so held in Shafer v. Shafer, 85 Md. 561.

Appeal dismissed.  