
    In Re Estate of David McIntire, Deceased.
    Probate Docket.
    No. 1,532.
    Decided November 8, 1886.
    The Chief Justice and Justices Cox and Merrick sitting.
    1. The Supreme Court of the District of Columbia, in special term, sitting as an Orphans’ Court, has all the jurisdiction that the Orphans’ Court at any time possessed by virtue of the statutes existing anterior to the adoption of the Revised Statutes of the District.
    2. Lapse of time and laches (in the case at bar a delay of fourteen months) are not a bar to the filing of a caveat to test the validity of a will.
    Appeal from an order of the Orphans’ Court.
    The Facts are stated in the opinion.
    James M. Johnston for petitioner.
    As to the objection that the alleged order of probate is res judicata: it is positively denied by the petitioner that he had notice, actual or otherwise, of the proceedings instituted for the purpose of probating said will, until after the probate thereof.
    ■ Even if the legal notice had been given, the order admitting the will to probate was void, because the register of wills who signed it had no power to do so. He can only admit a will to probate during the recess of the court. Act of 1798, eh. 101, sub-chap. 2, sec. 6; Dennis’ Pr., 28, sec. 6.
    As to what constitutes a recess of the court, see Dorsey, Test. Law, p. 44, sec. 14. Also B. S. D. C., secs. 755, 757, 930; and 16 Stat. at L., sec. 4, p. 160; Act 1777, chap. 8, sec. 2; and chap. 9, secs. 4, 5.
    Even admitting notice, such notice, whether by publication, personal citation or otherwise, will not bar petitioner of his right to contest the validity of said alleged will, even assuming the probate thereof to have been regular and legal. It is not res judicata and binds no one, unless such probate be had after contest. An order for probate, when without contest, is, in effect, only an interlocutory order. See act 1198, chap. 101, sub-chap. 2, sec. 13 ; Price vs. Moore, 21 Md., 313, 314; Mason vs. Poulson, 40 Md., 361, 362, 363; Levy vs. Levy, 28 Md., 25,30, 31 ; Compton vs. Barnes, 4 Gill, 56, 51; Pegg vs. Warford, 4 Md., 393, 394.
    It is admitted by respondent’s answer that such probate was taken without contest. The record of this case distinctly shows that there has been no contest, within the meaning of the statute. Price vs. Moore, and other cases, supra.
    
    When it is desired to attack a will which has been admitted to probate without a contest, the course is by a “ plenary proceeding,” under the statute. This proceeding is a plenary proceeding under the act of 1198, chap. 101, sub-chap. 15, secs. 16, 11; the same having been required by the petitioner, the regular citation issued and served upon the parties, and a consent order having been passed requiring them to answer, as shown by the proceedings in this case, in pursuance of which respondents all appeared and answered.
    These acts are more than sufficient to satisfy the requirements of the act referred to. Pegg vs. Warford, 4 Md., 396; Peters vs. Peters, 20 Md., 118; Barroll vs. Beading, 5 Harr. & J., 115.
    Being a plenary proceeding, the issues are demandable as a matter of right, and the court is not at liberty to refuse them. Pegg vs. Warford, Peters vs. Peters, and Barroll vs. Beading, supra.
    
    The second reason set up by respondents why the issues should not be granted is, that petitioner is estopped by his knowledge of the proceedings in equity cause No. 9330, and in the Orphans’ Court and by his laches.
    A mere knowledge of the proceedings on the part of the petitioner, together with his silence and nonaction, can create no estoppel against his right to contest the matter subsequently. Ketchum vs. Duncan, 96 U. S., 666 ; Philadelphia, W. & B. E. E. Co. vs. Du Bois, 12 Wall., 64.
    Not even an express ratification of the genuineness of a will and the acceptance of legacies thereunder will bar a contest of such will by the one so ratifying the same, or accepting legacies thereunder, if the probate thereof was without contest. Clagett vs. Hawkins, 11 Md., 388.
    Although no sufficient excuse was made for the delay in instituting his proceeding, no lapse of time can bar petitioner’s rights in the premises. Clagett vs. Hawkins, 11 Md., 387; O’Neill ms. Smith, 33 Md., 574.
    The testamentary laws of this District clearly require the court to direct issues, if it has jurisdiction of the case for any purpose. The proposition'of appellant is that this court, holding a special term for Orphans’ Court business, has no jurisdiction of the case and no power to hold such a special term. The jurisdiction in such cases was formerly exercised by the Orphans’ Court for the county of Washington, but that court was abolished by act of Congress of June 21, 1870. Sec. 5, 16 Stat. at L., p. 161.
    All the jurisdiction of that court was, by the same act, conferred upon this court, holding a special term for Orphans’ Court business. Id., sec. 4; Keyser vs. Breitbarth, •2 Mackey, 332.
    ■ It is contended, by appellant, that section 4 of that act is now in force, because, by section 1.296, E. S. D. 0., p. 140, it is provided that all the acts of Congress, passed prior to December 1, 1873, any part of which is embraced in the revision, are repealed, and that parts of said Act of June 21, 1870, are embraced in said revision, but not the said section 4 of said act.
    Whether section 1296, E. S. D. C., repealed section 4 of the act of June 21, 1870, is a judicial and not a legislative question. The language of the act is not conclusive ; and whether it really operates as a repeal is to be determined by judicial interpretation, under the ordinary rules of construction. U. S. vs. Claflin, 97 U. S., 548, 549.
    It is submitted that, by a proper construction of the statutes, it will appear, 1, that there has been no repeal of the law giving jurisdiction to this court; 2, that there is express enactment sustaining it.
    Section 1296, R. S. D. C., provides that the revision “shall be subject to and governed by the provisions of chapter 74, of the Revised Statutes, U. S., entitled Repeal Provisions.”
    
    That chapter provides, inter alia, that the incorporation into the revision of a part of any act containing provisions of a private, temporary or local character, shall not repeal or in any way affect such private, temporary or local provisions in such act, but that such provisions shall remain in full force. R. S. U. S., sec. 5596, p. 1085.
    It is manifest that section 4 of the Act of June 21, 1870, was of a local character, and it is within the protection of the section of the Revised Statutes above referred to.
    Further, section 930 of the Revised Statutes of the District of Columbia recognizes the jurisdiction by providing for the record of the decrees and orders of the court holding this special term.
    Rut assuming the revision to have the effect of a repeal, there is express legislation sustaining the jurisdiction. Section 89 of the Revised Statutes of the District of Columbia provides that the judicial courts of the District remain as organized on the 21st day of February, 1871. The organization then existing, so far as orphans’ court business is concerned, was under the Act of June 21, 1870. In addition to this, the legislative recognition of the jurisdiction of the court in section 930 would suffice to sustain it — as a legislative recognition, under such circumstances, is equivalent to express enactment. Pease vs. Peck, 18 How., 596, 597.
    S. S. Henkle for respondent, appellant :
    
      The will was probated April 12, 1884. Decrees of probate as to wills of personalty are final decrees, and can only be reviewed on appeal. See Dennis’ Pr., p. 28, sec. 4; War-ford vs. Colvin, 14 Md., 582; Negro John vs. Morton, 8 Gill & J., 391; Raborg vs. Hammond, 2 Harr. & G., 50; Barroll vs. Reading, 5 Harr. & J., 175; Harris vs. Pue, 39 Md., 538; Ofl'utt vs. Gott, 2 Gill & J., 385; Cecil vs. Cecil, 19 Md., 78.
    The petition in this case was filed under the thirteenth section of sub-chapter 2 of the Act of 1798, chap. 101, on pp. 29, 30, Dennis, which relates to probate made under the twelfth section, and does not apply to this case. In this case the will was fully proven, and five out of the six next of kin were present and they all had notice.
    The decree of probate was a final decree, and could only be revoked for fraud or deceit in obtaining it. Munnikhuysen vs. Magraw, 57 Md., 172; Raborg vs. Hammond, 2 Harr. & G., 51; Montgomery vs. Williamson, 37 Md., 429; Edwards vs. Bruce, 8 Md., 387.
    The court erred in ordering issues without first passing upon the questions made in the answer showing cause, thereby ignoring the preliminary questions made in the answer. Rielly vs. Dougherty, 60 Md., 276; Brewer vs. Barrett, 58 Md., 587.
    In Cain vs. Warford, 3 Md., 454, the court decided that the object of the sixteenth section is to advise the court of the real facts in the case; and where there is no dispute, but simply a question of law, the court is not bound to order plenary proceedings. See also Smith vs. Young, 5 Gill, 204.
    The petitioner is concluded by laches. The will was probated April 12, 1884. The account was filed by the administrator c. t. a. for final settlement in May, 1885; during all this time petitioner had full opportunity for knowledge, and had knowledge. Munnikhuysen vs. Magraw, 57 Md., 172; Wood vs. Carpenter, 101 TJ. S., 143; Carr vs. Hilton, 1 Curt. O. C., 390.
    A petition to set aside an order of the Orphans’ Court must be made within the time in which an appeal can be taken. Bedmon vs. Chance, 32 Md., 42; Hoffar vs. Stone-street, 6 Md., 303; Cecil vs. Cecil, 19 Md., 72; Munnikhuysen vs. Magraw, 57 Md., 172; Edwards vs. Bruce, 8 Md., 387; Pollard vs. Mohler, 55 Md., 284; First Nat. Bank vs. Eccleston, 48 Md., 156.
    The probate of a will is a proceeding in rein and is notice to all the world, and all the world is hound by it. Bigelow, Estop., 145; Lawrence vs. Englesby, 24 Yt., 42; Farrar vs. Olmstead, Id., 123; Steen vs. Bennett, Id., 303; Loring vs. Steineman, 1 Met., 204; McArthur vs. Allen, 3 Fed. Bep., 319; Singleton vs. Singleton, 8 B. Mon., 340; Hunt vs. Acre, 28 Ala., 580; Scott vs. Calvit, 3 How. (Miss.), 148; Jacobs vs. Pulliam, 3 J. J. Marsh, 200; Hodges vs. Buchman, 8 Yerg., 186; Wells vs. Wells, 5 Littell, 273; Cecil vs. Cecil, 19 Md., 78, 79, 80.
    This court has no jurisdiction in orphans’ court business, save where it has been conferred by the Bevised Statutes of 1873.
    The jurisdiction of this court was derived solely from the fourth section of the Act of Congress of June 21, 1870, 16 Stat. at L., 161.
    Both in England and Maryland the jurisdiction has always been distinct and separate from the courts of general jurisdiction.
    The fourth section is wholly omitted from the revision. Section 1296, p. 149, Bevised Statutes, repeals all laws passed prior to 1873, any portion of which is contained in the revision; and the section applicable thereto shall be in force in lieu thereof. Section 1 of the Act of 1870 is section 753 of the Bevised Statutes, p. 90.
    The Orphans’. Court can exercise no jurisdiction not expressly conferred. Dennis’ Pr., see. 20, p. 107.
    There is no jurisdiction to contest wills. That is purely statutory. The Act of Fehuary 27, 1801, 2 Stat. at L., 103, sec. 12, p. 107, provided for appointment of judge of orphans’ court and appeal to the circuit court.
   Mr. Justice Merrick

delivered the opinion of the court.

This was an appeal from an order of the Orphans’ Court, directing the issues upon a caveat to the will of David Mclntire, deceased.

Mclntire had' died early in April, 1884, and on the 8th of April, a few days after his death, a will was propounded in the Orphans’ Court, and was admitted to probate in common form.

Letters of administration were granted and certain proceedings taken, for the purpose of settling up the estate.' At the end of about fifteen months, the sole surviving brother of the decedent filed his petition in the Orphans’ Court, caveating the will and asking for plenary proceeding for the purpose of testing the validity of the will.

In that state of the case the administrator of the decedent filed his answer, setting up that the brother had been guilty of laches, by allowing the administration to proceed for fourteen months after full knowledge on his part, and that those laches were a complete bar to the application for a caveat and the determination of the question of the will in solemn form.

The probate court took a different view, and ordered issues to go for the purpose of establishing whether or not the supposed paper was in truth the will of the decedent. From that order the administrator appeals, and he raises two questions in this court, very momentous, indeed, if there were any substance in either of them.

The first question he raises is that, by reason of the terms of the codification or revision of the laws of the District, the probate court was shorn of the vast mass of its powers, because in the revision, at section 930, chapter 21, of the Revised Statutes of the District, the section providing for the register of wills leaves out all that part of the Act of the 21st of June, 1810, which added the Probate Court to the Supreme Court of the District of Columbia, except certain provisions with regard to the register of wills, and certain other provisions specially provided in other parts of the Code touching the proceedings of executors, and touching the proceedings of guardian and ward.

Now it would be a very serious thing, if there were any foundation to it, to have the probate court entirely stricken down and to have no tribunal vested with the particular functions which belong to the administration of the affairs of decedents.

The vice of the argument of the counsel consists in reasoning from the particular up to the general, instead of reasoning from the general down to the particular. If we look at section 89, every possible difficulty will be removed, which would enter the mind of a lawyer by reason of the omission from sections 929 and 930 of the entire provisions of the Act of June 1,1870, which had brought the Orphans' Court into and made it a part of the Supreme Court of the District of Columbia.

Section 89 is in these words:

“ The judicial courts of the District shall remain as organized on the 21st day of February, 1871, until abolished or changed by Congress.”

On the 21st day of February, 1871, the Act of June 21, 1870, in its entirety, was in force with all its provisions, giving all the antecedent jurisdiction of the Orphans’ Court to the Supreme Court of the District of Columbia. When in that state of the case, in 1874, the new revision or enactment is, “ That the judicial courts of the District shall remain as organized on the 21st day of February, 1871;” that is an adoption into the revision of 1874, of all the faculties which belong to the court as of that time; and it dispensed therefore with the necessity of repeating at sections 929 and 930 the detail of the jurisdiction which had been conferred by the act of June 21, 1870, and the only object which the reviser could have had in repeating in sections 929 and 930 any part of the Act of June, 1870, after that sweeping provision, was this: that if it had stopped with the terms I have used, u The judicial courts shall remain as organized on the 21st day of February, 1871,” it might have been inferred that there was some purpose to abolish the special powers of the register of wills, and they might have been considered as absorbed in the functions belonging to the clerk of the Supreme Court of the District of Columbia; and it was for the purpose of keeping alive and removing all doubt as to the integrity of the office of register of wills that sections 929 and 930 were put in the Revised Statutes as they appear now, but not with any view at all of taking away any of the powers of the Orphans’ Court exerted by the Supreme Court of the District of Columbia at one of its special terms on February 21, 1871.

The objection therefore to the jurisdiction must fall entirely, and we must consider the question as settled and fully at rest, that the Supreme Court of the District of Columbia, in special term, has all the powers and all the faculties that the Orphans’ Court at any time possessed by virtue of the statutes existing anterior to this codification.

The second objection is that the party has lost his remedy by laches. That is equally as untenable as the first. The thirteenth section of the second sub-chapter of the Act of 1798, provides that where a will has been admitted to probate in common form, it may be open to contest by any party interested; and it gives in that section no limitation of time to the contest. It leaves the law upon that subject and as to limitation, as it stood before.

In point of fact there was no occasion for putting that provision into the statute at all, except out of the abundant caution taken by the draftsman of that law, to exclude any possible conclusion which might have been drawn from the other section of the law, which says that the Orphans’ Court shall exercise no incidental power, and which is not expressly given by the statute itself; and inasmuch as the power to take probate in common form had been previously given, if the statute had remained silent about the power to review it upon a caveat in solemn form, the argument might have been drawn that the Orphans’ Court had not that power which previously had belonged to all the civil and ecclesiastical courts having jurisdiction over the subject of wills. It was for this purpose alone that expression was given in that form to the power of the Orphans’ Court to review a common probate by having a proper plenary proceeding for the purpose.

The capacity to review a probate was never limited in the ecclesiastical courts at any time. It has always been the doctrine of the ecclesiastical courts that a will was so sacred, a thing so touching the consciences of men, that it was to be carefully guarded; and whenever it appeared, under any circumstances, that a particular matter had been the object of testamentary disposition, the ecclesiastical courts took care to see that testamentary disposition fully carried out and preserved. Hence, there was no such thing known in the ecclesiastical courts as the Statute of Limitations, touching the establishment of a will or the revision of a supposed will which had once been in part established or adopted by the ecclesiastical court. To show that this has been the recognized law and the uniform practice, both in this District and in the State of Maryland, it is only necessary to refer to two decisions of the Court of Appeals.

I refer to the case of Clagett vs. Hawkins, to be found in 11 Md., 381. I read a single passage:

“ The proposition that no lapse of time will exclude the inquiry as to whether certain papers constitute the will of a party is supported by almost any number of authorities; that of Finucane vs. Gayfere, 1 Eccl. Rep., 425 (3 Phill., 405), will suffice for this case.”

And in 33 Maryland, 569, the case of O’Neill vs. Smith, which, by the way, was a case where there had been a nuncupative will established and probated by the Orphans’ Court, and full administration had occurred and the estate had been settled under that nuncupative will, after the end of nearly two years the nunmrpative will was assailed by caveat and it was overthrown. Now if there were any case where laches ought to have been applicable, it would be in the case of a nuncupative will which rests, as we know, only in the memory of witnesses, and never is put in writing, except after death, by the Orphans’ Court, upon the statement of witnesses; and if they should happen to die, there would be uo possible means of determining whether or not that were the'true will of the party.

But even in a case of that sort the courts have held that lapse of time was not an impediment to the revocation and overthrow of a will. At page 574, the court says:

“ The only remaining question is whether the appellants, by reason of any delay or laches on their part, have lost their right to assail this will? Without intending to admit that mere lapse of time would operate as a bar in any case, we are of opinion that the appellants are not pi’ecluded by any supposed delay from contesting the validity of this will.”

In the light of these authorities and the reasonings which I have given, it appears to the court that the plea of laches cannot prevail in this or in any similar case. This disposes of all the questions.

The appeal is, therefore, not sustained, and the case is sent back to the Orphans’ Court for further proceedings in conformity to the action already taken in that tribunal.  