
    JACOB H. SNYDER vs. JESSE O. SNYDER, Executor.
    
      Probate of Will — Affidavits—Notice—Amended Petition— Effect on Original.
    
    Non-compliance -with, the provision of Code, art. 93, sec. 347, that every executor or other person exhibiting a will shall be examined on oath as to the manner in which the will or codicil exhibited came into his hands, does not invalidate the probate, when the orphans’ court has received from other sources evidence that the will is genuine and executed in compliance with all the requirements of the law by a qualified person, and properly attested.
    The probate of a will is not invalid because the subscribing witnesses, after stating that it was executed and attested' as required by law, and that the testator was of sound and disposing mind, memory and understanding, did not add that he was capable of executing a valid deed or contract.
    Allegations of fraud in procuring a will, while material in the trial of a caveat to the will, have no relevance in a proceeding to revoke a probate for fraud, which must be based on the ground that it, and not the will, was procured by fraud.
    That the executor failed to notify testator’s brother as to when he would probate the will, does not show fraud in the probate of the will, it appearing that the executor notified two sisters of the appellant, one of whom was present at the probate.
    That the executor of the will, in presenting it for probate, failed to tell the register of wills of a deed of trust made by testator to such executor, and of litigation in regard thereto then pending, did not show fraud in the probate.
    Charges of fraud unsupported by facts will not be recognized by courts of justice.
    
      Where, after the filing of a petition in the orphans’ court in the nature of a caveat, asking that the prohate of the will be set aside and that issues be transmitted to a court of law, the petitioner filed “an amended petition” praying a rescission of the probate, held that it was error to dismiss the original petition, since if it was still part of the ease the court had no authority to do so, and if it was out of the case, the court had no power to do so.
    The amended petition having been treated by both court and litigants as a substitute for the original petition, and the principal questions presented by the original petition not having been considered on the hearing of the amended petition, the court had not the power, and could not have intended, in disposing of the amended petition, to dispose also of the right of the petitioner or any other person to caveat the will.
    In view of the uncertainty produced by the reference to the original petition, in an order of the orphans’ court appealed from, dismissing an amended petition, held that the case should be remanded in order that all reference to the original petition be stricken from the order appealed from.
    
      Decided January 10th, 1923.
    
    Appeal from the Orphans’ Court of Washington County.
    Petition by Jacob H'. Snyder against Jesse O. Snyder, executor of Abrabam. K. Snyder, deceased, to set aside the probate of a will. From an order dismissing the petition, petitioner appeals.
    Order affirmed in part.
    The cause was argued before Boyd, C. J., Briscoe, Thomas, Pattison, Urner, Stockbrbridge, Adkins, and Offutt, JJ.
    
      Leo Weinberg and Charles S. Baker, with, whom was, Wilton J. Lambert on the brief, for the appellant.
    
      Albert J. Long, for the appellee.
   Offutt, J.,

delivered the opinion of the Court.

Abraham 3L Snyder*, a resident of Washington County, in this State, died on January 1, 1922, leaving as his only heirs at law his brother, Jacob H. Snyder and two sisters, Mary Hughes and Malinda Summers,' all x’esiding in the same county. On January 4th, 1922, Jesse O. Snydei’, also of Washington County, hut who was not -a relative of the decedent, produced, in the orphans’ court of that county, a paper purporting to he the will of Abraham K. Shvder in which he was named executor, and made oath as follows: “That the aforegoing, is the true and whole will of said deceased that has come to his hands and possession, and that he does not know nor has he heard of any other.” On the same day, which was in the recess of the court, the subscribing witnesses to the will appeared before the register of wills and made oath “that they did see the testator sign and seal said will; that they heard him publish, pronounce and declare the same to be his last will :and testament; that at the time of his so doing, he was to the best of their apprehension of sound and disposing mind, memory and understanding and that they subscribed their names as witnesses to said will at the ren ques-t and in the presence of the said testator and in the presence of each other.” Whereupon the will was admitted to probate by the register of wills in the presence of the executor and Mm Mary Hughes, a sister of the decedent, and at some time thereafter letters testamentary were issued to Jesse O. Snyder, the appellee.

On March 24th, 1922, Jacob1 H. ’Snydei’ filed in the sameeonrt a petition in the nature of a caveat to the supposed will, in which he asked that the probate of the will he set aside, that issues he framed on the pleadings and transmitted to a court of law for trial, and that an administrator pendente Ute he appointed to administer the estate pending the caveat. Answers and the general replication having been filed, the matter proceeded to a hearing. In the course of the hearing, on May 1st, 1922, the petitioner filed “an amended petition” in which he charged that the decedent was for some time prior to his death mentally deficient and that he had been paralyzed and that he was, on May 26th, 1921, in the Circuit Court for Prince George’s County adjudged to he of unsound mind, and a committee appointed for the care of his person and estate; that on January 29th, 1920, when the decedent was so “mentally unbalanced,” Jesse O. Snyder procured from him a deed in which he conveyed to the said Jesse O. Snyder his entire estate valued at about $135,000, in trust for the grantor during his life and then for the nse of such persons as the grantor should by will appoint and; failing such appointment, to the grantor’s right heirs; that Jesse O. Snyder was an attorney who1 lived and practiced law1 in Hagerstown, and that for twenty-five years he was the confidential agent, attorney and advisor of the decedent; that when the decedent’s committee learned of that, deed they brought suit against Jesse O. Snyder to have it annulled, and that suit was pending at the time Jesse O. Snyder, the executor named in the will, offered it for probate, and that he under that will took practically the whole estate; that Jesse O.' Snyder procured the will to be probated in the presence of the two sisters of the decedent, but did not notify the appellant, his only surviving brother; that the appellee did not inform the register of wills of the suit brought- to annul the deed of trust, nor of the fact that he was then administering the estate under that deed; that the will was prepared 'by the appellee and that it was probated at his request and letters testamentary issued to him. The petition then asks for1 this relief: “Wherefore, your petitioner prays, that the order ¡admitting to probate said paper writing, purporting ¡to be the last will and testament of Abraham K. Snyder, deceased, be rescinded and that the letters testamentary granted herein be revoked and that an administrator pendente lite be appointed.” An. answer to the amended petition was filed by the appellee, to which, the appellant filed the general replication. The case was heard, testimony taken, and on June 20th, 1922, the¡ following order was passed: “It is therefore ordered this 20th day of June, A. D. 1922, by the Orphans’ Court of Washington County, that the petitions of Jacob H. Snyder, filed March 24th, 1922, and May 1st, 1922, he and they are hereby dismissed.” From that order this appeal was taken.

The record contains -sixty-six pages, but all the -facts- which can have any possible relevancy to- th© question before ns can be -stated in a few. words. The nearest surviving relatives of the- decedent were his two sisters and his brother. He left a paper writing purporting to be his last will and testament, dated July 26, 1902, in which he named Jesse O'. Snyder as his executor. Snyder offered the paper” for probate and made the oath referred to- above. The subscribing witnesses also- -appeared and each took an oath in the form previously given. At -that time one of the decedent’s sisters was present and his other sister had heard the will read. Jacob H. Snyder, the brother, had not been notified and was not present. After the will had been proved in the way we have stated, it was admitted to probate, and the question before ns is whether, upon these- facts, the order admitting it to probate should he rescinded and the grant of letters testamentary revoked.

The appellant offers several objections- to the probate which m-ay he thus summarized: (1) that the oaths taken by the executor and the attesting witnesses did not gratify the requirements of the -statutes applicable in such cases.; (2) because tbe probate was procured by fraud.

Taking these objections in their order we will first consider the form of the affidavits in question. S’ection 341, article 93, Code Pub. Gen. Laws of Maryland, provides: “Every executor or other person exhibiting a will shall be examined on oath whether or not he knows, of any other will or codicil and in what manner the will or codicil exhibited came into his hands.” The executor when he exhibited the will was not examined on oath as to- how it came into- his possession. It is urged that this omiss-ion invalidated the probate. The effect of such an omission does not appear to have been passed upon by this Court and we must deal witb the question as one- of first impression. The evidence demanded by the statute is directed to two points, one of which relates to- the question as to whether the will exhibited is the last will of the testator, and the other' to its custody. The first point is jurisdictional to. this extent, that before a will can be admitted to probate tbe court must be satisfied that it is the last will of the testator, for otherwise it could not be admitted to probate art. all, but the failure of the register of wills to examine the person exhibiting the will in the manner provided by the statute, if the court has secured the information from other sources, would not, in our opinion, affect the validity of the probate. There is nothing in this section to indicate that a literal compliance with its terms was intended to be a condition precedent to vesting the court with the jurisdiction to admit wills to probate. It imposes upon the probate court the positive duty of examining; any person exhibiting a will as to the existence of any other will or codicil, and as to how it came into his possession, but can it be said that if, notwithstanding the imperative language of the law, the probate officer neglects or in any way fails to so examine the person exhibiting the will, that ipso fa-cto it be»comes ineligible for probate at all, even though the court received from other sources evidence showing1 that, the will was genuine and executed in compliance with all the requirements of the law by a qualified person, and properly attested ? We think not, for the mere statement of such a proposition destroys it. The statute does not expressly or by necessary implication make the probate of wills depend upon the performance of that duty, for when it prescribes in section 322 what qualifications are essential to enable a person to execute a good and effectual will, and, in section 323, the manner and form in which a valid will must be made, executed and attested, it- states every condition, compliance with which is essential to a valid will, and when in section 350 it provides that “in. proving a will or codicil all the witnesses thereto shall he examined” when they can he reached, and in section 353 it provides, for the proof of their signatures in the event that their presence cannot he had and fixes the weight and effect of such proof, it prescribes every condition essential to the regular probate of a valid will. The intent of this provision was no- doubt to empower the probate officer to test the bona fides of the persons offering the will in applying for probate, and to ascertain whether the will offered was the last will of the testator, hut it did not intend that the failure of the probate officer to so examine the person producing the will should invalidate its subsequent probate, because, in .addition to what has already been said, if the will were in all other respects valid, the fact that the person producing. it to the court had obtained it wrongfully would he wholly immaterial to any consideration of the right of persons interested to have the will probated. We do not think therefore that the failure of the register of wills to examine the executor as to how the will came into his possession affected the validity of the probate.

We will now consider the form of the oath taken by the subscribing witnesses. It is contended that it is defective because the witnesses, after stating that it was executed and attested .as required- by law, and that the testator was “of sound and disposing mind, memory and understanding!,” did not add that he was capable of executing! a valid deed or contract. But the statute does not require that such witnesses shall he examined as to the testator’s mental condition, nor does it indeed in any way limit or direct their examination, hut merely provides that, in “proving a will,” they “shall be examined.” Clearly their examination, especially at a time when there is no- contest as to the mental condition of the testator, is not necessary, since, in the absence of proof to the contrary, every testator will he presumed to» he of sound and disposing mind and capable of executing a valid deed or contract. Further discussion of this point would he needless, and indeed superfluous, in view of the recent decisions of this Court. Woodstock College v. Hankey, 129 Md. 675, &c., and Parker v. Leighton, 131 Md. 412. In the latter case we approved an affidavit in the very form to which the appellant objects.

Tlie next objection is that the- probate was- procured by fraud. But there is no evidence that there was fraud in obtaining the probate. The allegations of the petition do charge gross-fraud in procuring the will, and testimony was offered to support them, but. while such charges, if true, would be material in‘the trial of a, caveat to the will, they have no relevance in a proceeding to revoke a probate for fraud, which must be based on the ground that it, not the will, was procured by fraud.

Mow when we come to examine the facts of this case, the facts relied on to show fraud in obtaining the probate are without, any real significance or force. Beduced to their lowest- terms those facts are that the executor did not- notify the decedent’s brother when he would probate the will, and that he did not tell the register of wills of the execution of the deed of trust, uor of the litigation then pending in eonuecr tion with it.

In regard to these: objections it is sufficient to say that it was not incumbent upon the executor to notify all of the relatives and next of kin of the testator, and the fact that he failed to notify the brother, with whom he does not appear to have been on good terms, cannot be taken as proof of fraud, when it appears that he notified the appellant’s two-sisters and that one of them. wa:si present when the will was probated. M or is there any apparent reason why the failure of the executor- to- tell the register- of wills, of the deed of trust or o-f the litigation relating to- it should be regarded as proof of fraud. Those facts could not possibly have, affected the register’s official acts. They did not in themselves make it improper to probate the will, nor did they, if true, make the executor named in the will ineligible. Charges of fraud unsupported by facts will not be recognized by courts of justice. Charges without facts are mere vituperation. Miller's Equity, sec. 93. There was therefore, in our opinion, no error in so much of the order appealed from as related to the amended petition.

But the order also' dismissed the petition filed March 24th, 1922. Obviously the court had no power to dismiss that petition if it remained part of the pleadings in the case, because it was a valid and sufficient caveat to the will. An amended bill may under certain circumstances operate as a substitute for an original bill (Wagoner v. Wagoner, 77 Md. 193), and be dealt with as such (Carter v. First Nat. Bank of Pocohontas, 128 Md. 586), but the rule generally recognized has been thus stated: “An amended bill is. considered as an original bill, or rather as a continuation of the original, and with the original constitutes but a single bill and one record. The averments of the original and amended bills and the prayers of both will be taken together.” Where, however, the amendment is of such a character as to entirely supersede the original bill, the latter cannot be treated as remaining in the case. Just why the court therefore undertook to dismiss; the petition of March 24, 1922, is not clear. If it was still part of the case it had no authority to dismiss it, and if it was out of the ease, it bad no power to dismiss it. In either case there was error in so much of the order as dealt with the order of March 24, 1922. But as the amended petition was. treated by both court and litigants as a substitute for the original petition, and since the principal questions presented by the original petition were not even considered at the hearing on the amended petition, the court bad not the power and cannot have intended, in disposing of the amended petition, to disipóse also of the right of the appellant or any other person to caveat the will referred to on any grounds, and so much of the order appealed from as referred to the petition of March 24, 1922, must have been adopted under the mistaken impression that it was a part of the description of the amended petition. Because of the uncertainty caused by the reference to the original petition, it will be necessary to remand this ease in order that all reference to the original petition may be stricken from the order appealed from.

In view of the conclusions reached it becomes unnecessary for ns to inquire as to whether the petition was filed too late to obtain the relief prayed.

So much of the order appealed from as dismisses the petition of May 1st, 1922, affirmed, and cause remanded, in order that so much of said order as refers to the petition of March 24th, 1922, may he stricken out. The costs to he paid hy the appellant.  