
    REBECCA H. FRENCH, Administratrix of Van Lear French, vs. THE WASHINGTON COUNTY HOME FOR ORPHAN AND FRIENDLESS CHILDREN and THE PRESBYTERIAN CHURCH OF HAGERSTOWN.
    
      Orphans3 Court; modification of orders; costs; discretion; no appeal; Code Pub. Gen. Laws, Art. 93, sec. 250.
    Under proper circumstances, and upon application made ■within a reasonable time, the Orphans’. Court has authority to modify or rescind its' orders. p. 311
    An Orphans’ Court, in its order rejecting a paper writing which had been offered for probate as a last will and testament, imposed the costs upon the eaveatees; a little over a month later the eaveatees petitioned for a modification of the order; the Orphans’ Court rescinded so much of the order as related to the costs and ordered that they be paid by the administrator out of such estate of the decedent as might come into her hands. Held, that until the estate was finally closed the Orphans’ Court could correct what it should deem a mistake in reference to its disposition of costs. pp. 316-317
    The fact that the petition to modify the order was filed a little over a month after the passage of the original- order was not too late. • p. 316
    By Article 93, section 250 of the Code of Public General Laws, the awarding of costs in the trial of issues from the Orphans’ Court is for that Court exclusively, and from its action in such cases no appeal will lie. • p. 316
    
      Decided April 4th, 1911.
    
    Appeal from an order of the Orphans’ Court of Washington County.
    
      The cause was argued before Boyd, C. J., Bbiscoe, Peabcb, Schmuckeb, Thomas, Pattison and Henee, JJ.
    
      Alexander Neill, JL, for the appellant.
    
      Charles D. Wagaman and William II. A. Hamilton, for the appellee.
   Thomas, J.,

delivered the opinion of the Court.

It appears from the petition of the appellees and the answer of the appellant in this case that a paper purporting to be the last will and testament of Van Lear French was offered for probate in the Orphans’ Court of Washington County, and that before said alleged will was admitted to probate a caveat was filed by Virginia H. French and others. The appellees, the Washington County Home for Orphan and Friendless Children and the Presbyterian Church of Hagerstown as legatees in said will, answered said caveat, and issues were framed by the Orphans’ Court and sent to the Circuit Court for Washington Court for trial. After the trial of the issues in the Circuit Court, the Orphans’ Court passed the following order:

“The finding of the jury on all the issues having been duly certified to this Court from the Circuit-Court for Washington County, it is this 29th day of July, A. D. 1910, by the Orphans’ Court-of Washington County, adjudged and ordered that the finding of the jury on all the issues be and the same are hereby ratified and confirmed with costs to the caveators, and it is ordered and decreed that said paper writing dated the 19th day of December, 1898, purporting to be the last will , and testament of Van Lear French, deceased, be not admitted to probate, and the same be and is hereby rejected.’’ On the 2d of September, 1910, the appellees filed a petition in the Orphans’ Court, setting out said proceedings in said Court and in the Circuit Court, in which they had been made defendants; alleging that they had been compelled to employ counsel and to incur costs in the conduct of said trial, and praying the Court to allow them a reasonable counsel fee and said costs out of the estate of the deceased. On this petition the Orphans’ Court passed an order directing a copy of the petition and order to be served on the administratrix, the appellant, and requiring her to answer the petition. The appellant answered the petition resisting the allowance of a counsel fee and costs to the appellees; setting out the previous order of the 29th of July, 1910, and alleging that at that time no assets had been received by her as administratrix of the estate of said deceased, and that because of certain proceedings which she was advised were about to be instituted in the Circuit Court for Washington County she did not know that any part of the estate of said d’eceásed would come into her hands. On the 23rd of September the appellees withdrew their application for an allowance of counsel fees, and on the same day the Orphans’ Court passed the following order from which the administratrix has appealed:
“The petition of the Washington County Home for Orphan and Friendless Children and the Presbyterian Church, in the above entitled matter, having been read and considered, solicitors for respective parties having been heard, it is thereby upon this 23rd day of September, A. D. 1910, ordered by the Orphans’ Court of Washington County, that so much of the order of this Court passed in the above entitled cause on the 29th day of July, 1910, as relates to the payment of costs in this cause, be and the same is hereby rescinded; and it is further ordered that all costs of the proceedings in the above entitled matter be paid by Rebecca H. French, administratrix, out of the estate of the said Van Lear French, deceased, which comes into her hands.”

The appellant contends that as the Orphans’ Court disposed of the question of costs by its order of July 29th, 1910, it had no power to modify or rescind that order; but the authority of the Orphans’ Court, under proper circumstances, upon application made within a reasonable time, to modify or rescind its orders has been so frequently recognized and sanctioned by this Court that it is only necessary to refer to a few of the cases. In the case of Montgomery v. Williamson, 37 Md. 421, there was an application to the Orphans’ Court to rescind an order ratifying a sale, and Judge Advey said: “It seems to have been supposed that as there is no express authority to be found in the statute, the rescinding of the order of ratification would be the exercise of constructive authority which the Court is forbidden to exercise. But this objection is fully answered by the Court of Appeals in Raborg v. Hammond, 2 H. & G. 42, 51, in considering the power of the Orphans’ Court to revoke letters of administration when improvidently granted, and where to the exercise of the power the same objection was urged as to the jurisdic-' tion in this case. The Court said: ‘But to this it may be answered that we deem the power of revocation, under such circumstances, as necessarily inherent in the Orphans’ Courts, and a part and of the essence of the power delegated to them, of granting administration.’ In confirmation of which, see 3 Bac. Ab. 50, where, speaking of the ecclesiastical tribunals of England, in reference to this power, it is stated that fit would be absurd to allow a Court jurisdiction herein, and at the same time deprive them of the liberty of vacating and setting aside an act of their own, which was obtained from them by. deceit and imposition.’ Whether the order of ratification was obtained by deceit and imposition is quite immaterial ; if by honest mistake, the power of revocation and correction equally exists, provided the application for its exercise be made within a reasonable time and under proper circumstances.” In the case of Stanley v. Safe Deposit Company, 87 Md. 450, Chief Judge McSherry, referring to the Orphans’ Court, said: “If it had a right to decide the question of residence, then it had the right to determine whether it had jurisdiction to admit the will to probate, and if it decided that preliminary question erroneously its decision was subject to review on appeal or to reversal by the Court itself upon proper application made to it for that purpose in due season.” Further recognition of this power of the Orphans’ Court will be found in Raborg v. Hammond, 2 H. & G. 42; Shultz v. Houck, 29 Md. 24; In re Estate of Stratton, 46 Md. 551; Dalrymple v. Gamble, 68 Md. 157, and Gallagher v. Martin, 102 Md. 115.

In the case of Edwards v. Bruce, 8 Md. 387, letters of administration were granted on the 17th of October, 1854, and a petition was filed on the 4th of June, 1855, asking for a revocation of the letters, and that letters of administration be granted to the appellee. The Court held that, “An application to the Orphans’ Court to revoke letters of administration can only be made within the same time after the party applying has Imowledge that letters had been granted as that provided by law, within which an original application for letters is to be made,” and Judge Eggleston said: “Because of the lapse of time between the date of the letters and the filing of this petition it is contended that the Court were wrong in granting the prayer of the petition. This, it is said, is only relying upon a principle which has been adopted in other cases, based upon the analogies of the law. And because the right of appealing from the order granting the letters is limited by law to thirty days, this application- to revoke the order should have been filed within the same time after the party had knowledge that the letters had been obtained.

“We think the principle of analogy should apply in the present case, but it applies with more propriety to the time provided by law within which an original application for letters is to be made than to the time of taking an appeal.”

This rule has been followed and applied by this Court in a number of cases. In the case of Redman v. Chance, 32 Md. 42, a petition was filed by the mother of the infants praying that the appointment of the appellee as guardian of her children might be revoked on the ground that it had been made without notice to her. In that case Judge Robinsou said: “But it is further insisted that the petition ought to have been filed within thirty days after actual knowledge on the part of the appellants of the order of the Court making the appointment. There is no statutory provision, it is true, directing within what period of time a party must appeal or institute proceedings attacking a judgment or order passed without notice. But the policy of the law which provides a time within which parties to a judgment or decree must appeal applies with equal force where they are seeking to set aside the same when rendered without notice. Hence it has been repeatedly held that, upon the principle of analogy, the Court will apply express statutory restrictions in regard to time to cases of similar character where no such express legislative provisions exist. * * * Now, the Code provides that appeals from the Orphans’ Court shall he taken within thirty days, and it must follow, from the principles laid down in the above cases, that a party seeking to set aside an order or judgment of that Court, because the same was passed or rendered without notice, must institute proceedings within the time limited for appeals. By this rule he has the same time, after knowledge of the order or judgment passed or rendered without notice, that he would have to appeal if duly summoned, and its application, therefore, can not work any injustice.”

In the case of In re Estate of Stratton, supra, the order appealed from modified a previous order of the Orphans’ Court fixing the commissions of the administrator. It was there contended that the Orphans’ Court had no power to modify its order, and in reply to that contention Judge Breht, after quoting from Montgomery v. Williamson, supra, “whether the order of ratification was obtained by deceit or imposition is quite immaterial; if by honest mistake, the power of revocation and correction equally exists, provided the application for its exercise be made within reasonable time and under proper circumstances,” said: “In the present case a reasonable time for the correction of the error is before the estate has been finally .closed; especially if, as here, its correction is just to all the parties interested.” This case was followed in Dalrymple v. Gamble, supra. In the case of the B. & O. R. R. Co. v. Canton Co., 70 Md. 405, this Court, referring to the rule stated in Bedman v. Chance, supra, said: “This is just and equitable, but it presupposes the existence of some other direct, appropriate remedy. By analogy the exercise of the one not limited is restricted to the same length of time within which the other must be exerted. But it by no means follows that a period, fixed by law, within which an appeal may be taken from a decree of a Court of equity to this Court, is to be adopted as an arbitrary and inflexible limit within which the exertion of a totally different right must be made. There is no analogy whatever between appealing from a decree of a Court of equity and filing a bill to vacate an award. In a case like this, where the only remedy was the one invoked, and where no other proceeding was open to the appellant, all the circumstances must be considered and the relief will be granted if the balance be in favor of the justice of the application, provided sufficient time has not elapsed to make it inéquitable to disturb the award.” Section 254 of Art. 93 of the Code provides that, “On such plenary proceedings all the depositions shall be taken in writing and recorded, and, if either party require it, the Court shall direct an issue or issues to be made up and sent to any Court of law convenient for trying the same, and the issues shall be tried in the said Court of law as soon as convenient, without any continuance longer than may be necessary to procure the attendance of witnesses; and the power of the Court of law and the proceedings thereto relative shall be as directed by law respecting the trial of issues, and the Orphans’ Court shall give judgment or decree upon the bill and answer and depositions on the finding of the jury, and may in all cases of contest award costs, in their discretion, and compel payment by attachment and fine, or by attachment and sequestration, or by fieri facias.” In the case of Levy v. Levy, 28 Md. 25, the Court said: “By the Code, Art. 93, sec. 250, the Orphans’ Court is vested with discretionary power to award costs and enforce their payment; and this Court has decided that a Court of law, to which issues are sent by the Orphans’ Court, can not enter judgment for costs, but that the established practice in such cases is to certify to the Orphans’ Court the verdict and the costs, leaving for that Court to enter the proper judgment.” In the case of Johns v. Hodges, 60 Md. 215, the Court said: “The awarding of costs in a case of trial of issues from the Orphans’ Court is for that Court exclusively. The Court of law, in which the issues are tried, has no power to enter a judgment for costs on the verdict of a jury, and this Court is equally without authority in this respect.” And in the case of Brown v. Johns, 62 Md. 333, the Court stated that it has been decided that the exercise of the power of the Orphans’ Court to determine the question of costs is for that Court exclusively, and that “as the exercise of the power is not only discretionary but exclusive, it is apparent that a remedy for any error of judgment supposed to have been committed can not be invoked by an appeal to this Court. The trust and confidence, which must be reposed somewhere, have been given by an exercise of legislative authority, to the Orphans’ Court, and the matter entrusted to the sound discretion of its jduges; and it is a principle, too well established to be now controverted, that when the legislature has given special and exclusive jurisdiction to a Court, and made no provision for an appeal, the decision of that tribunal is a finality, and the question in controversy can be carried no further.”

It is stated in the brief of the appellees that the order of July 29th was passed without any notice to them or an opportunity to be heard, but it does not appear when they became aware of the passage of the order. However this may be, the rule stated in Redman v. Chance, supra, has no application to this case, which should be controlled by the principle applied in B. & O. R. R. Co. v. Canton, supra. As we have seen, there was no right of appeal from the order of July 29th, and the only remedy open to the appellees was an application to the Orphans’ Court to modify that order. As was held In re Estate of Stratton, supra, the appellants were not prejudiced by the fact that the petition was not filed until a little over a month after the passage of the original order. Until the estate was finally closed, there was no reason why the Orphans’ Court should not correct what it deemed to be a mistake in reference to its previous disposition of the costs, and as there is no right of appeal from its judgment in the matter the motion to dismiss the appeal in this case must prevail. The order appealed from directs the administratrix to pay the costs out of the estate “which comes into her hands”. She is not, therefore, liable beyond the assets received by her as belonging to the estate.

Appeal dismissed, with costs.  