
    M. TILGHMAN JOHNSON, Executor, vs. ELLEN G. SAULSBURY.
    
      Oaveat lo Will — Dismissal of Proceeding — Reinstatement.
    "Where issues sent to the circuit court by the orphans’ court are dismissed in the former court by the caveator, the contest is thereby ended, both as regards the issues- themselves and the proceedings in the orphans’ court, and any person interested, including the former caveator, may file another petition and caveat contesting the validity of the will.
    Where the caveator dismissed, in the circuit court, issues ■sent there by the orphans’ court, and subsequently filed in the latter court a second petition and caveat, which the latter court •dismissed, while refusing the caveator’s motion to dismiss the first petition and caveat, held, that the action of the orphans’ court should be treated as a reinstatement of the original pro•ceedings and caveat, with the force and effect of a new petition and caveat, it being evident that such court did not intend to ■deprive the caveator of her right to contest the will.
    When, after the caveator’s dismissal of issues sent to the circuit court, the orphans’ court reinstates the original proceedings and caveat, with the force and effect of a new petition and caveat, it may, on petition by the caveator, again send the same issues to the circuit court.
    
      Decided January 9th, 1923.
    
    Appeal from the Orphans’ Court of Talbot County.
    Petition and caveat by Ellen G. Sanlsbury to will of Charles H. Sanlsbury, deceased. From an order, passed on petition of the caveator, sending issues to the circuit court for trial, M. Tilghman Johnson, executor of said deceased, appeals.
    Affirmed.
    The cause was argued before Boyd, C. J., Briscoe, Thomas, Pattison, Urner, Stockbridge, and Offutt, JJ.
    G. Elbert Marshall and Joseph B. Seth, with whom were Seth, Shehan & Marshall on the brief, for the appellant.
    
      V. Calvin Trice, with whom was Charles J. Butler on the brief, for the appellee.
   Thomas, J.,

delivered the opinion of the Court.

It appears from the record in No. 19 Appeals of the April Term, 1922, that Oharles H. Saulsbury, of Talbot County, Maryland, died on the 17th day of March, 1920, leaving one child and a widow, and leaving a paper purporting to be his last will and testament, by which he devised and bequeathed all his estate remaining after the payment of his debts and funeral expenses to1 M. Tilghman Johnson, the executor, in trust to pay the net income therefrom to his widow, Ida M. Saulsbury, and his daughter, Ellen G. Saulsbury, in equal shares, during their natural lives, and to1 the survivor during her life. The will further provided that if his widow remarried the whole of said income shoidd be paid to his daughter during her life, and that upon the termination of said trust by the death of the survivor of said widow and daughter, the estate should vest absolutely in the children of said daughter, but in the event that the daughter died “leaving no children or descendants of children surviving her,” the whole of the estate, upon the termination of said trust, should go to the testator’s brother, James O. Saulsbury, absolutely.

The will was admitted to probate on the 24th of March, 1920. On the 4th of May, 1920, the widow renounced the provisions made for her and elected to take in lieu thereof her “legal share of the estate,” and thereafter the daughter filed a petition and caveat to the will and prayed that the executor be required to answer. After the answer of tbe executor was filed, tbe Orphans’ Court of Talbot Oounty, on tbe 22nd of February, 1921, on the petition of tbe caveator, directed certain issues to be sent to tbe Circuit Court for Talbot County for trial, and further ordered that upon the trial of such issues the caveator should he the plaintiff and the executor the defendant. On May 16th, 1921, a motion was made by tbe caveator in the circuit court for leave to amend the caveat and petition by adding tbe name of James O. Saulsbury, devisee, as a party defendant. This motion was overruled on tbe 18th of May, 1921, and on tbe same day the caveator made a “motion for leave to dismiss without prejudice.” To the granting of this motion the eaveatee objected. Tbe objection was overruled, and tbe eaveatee noted an exception to tbe ruling, and on tbe same day tbe motion for leave to dismiss was granted, and the case was entered “dismissed without prejudice.” After a certificate of the proceedings in the circuit court was scut to the orphans’ court, the daughter filed in the orphans’ court another petition and caveat to said will, to which she made the executor and James C. Saulsbury parties, and thereupon tbe executor and James C. Saulsbury filed a petition in the orphans’ court, setting out the proceedings to which we have referred, and praying that said second petition and caveat be dismissed. The daughter then filed another petition, praying the orphans’ court to pass an order dismissing her first caveat, but the orphans’ court, on the 25th of October, 1921, dismissed the second, caveat, and on the 6th of December, 1921, passed another order refusing to dismiss the first caveat. From these orders the caveator entered an appeal on the lJth of January, 1922, but the appeal was dismissed by this Court at the April Term, 1922, because it was not taken, and the record was not transmitted to this Court, in time. The record, in this case shows that after the dismissal of the former appeal, the caveator filed a petition in the orphans’ court praying that the issues originally sent to the circuit court he again sent to that court for trial. The executor objected to the granting of said petition, but the orphans’ court, on the 25th of April, 1922, passed an order directing that said issues be sent to the circuit court for trial, and from that order the executor, caveatee, has brought this appeal.

The contention of the appellant is that under the decisions in the Berry Will Case, 93 Md. 560, and Bennett v. Bennett, 106 Md. 122, the caveator had no authority to dismiss the ease in the circuit court over the objection of the caveatee, and that the circuit court erred in permitting her to do so', and that there was, therefore, no error in the orders of the orphans’ court dismissing the second caveat and refusing to dismiss the first caveat, but because of the error of the circuit court in permitting the case to be dismissed, the-orphans’ court erred in its order of April 25th, 1922. But as no appeal was taken from the action of the circuit court, and as the appeal from the first mentioned orders of the orphans’ court was, for the reasons we have stated, dismissed, the action of the circuit court and those orders of the orphans’, court are not now subject to review by this Court, and the only order open for review on this appeal is the order of the orphans’ court of April 25th, 1922, directing the original issues to be again sent to the circuit court for trial.

In Levy v. Levy, 28 Md. 25, where issues sent to the Superior Court of Baltimore City were dismissed in that court, and the record of proceedings there was transmitted to the orphans’ court, and where a second petition and caveat was thereafter filed, the appellant contended that the-dismissal of the case in the superior court was an abandonment of the contest, and that the caveators were bar-red from again contesting the- will, but -the Court held that the effect of the dismissal was simply an abandonment of the “then pending contest,” and, in reference to the proceedings- to- he taken after such a dismissal, the Court said: “The next question to be decided is as to the mode of proceeding in the orphans’ court after the issues were dismissed. -Ought the appellees to have filed a new petition or proceeded upon the petition first filed? It was decided by this- Court, in the case of Price v. Naylor, supra, (21 Md. 356), and again in Price v. Moore, 21 Md. 366, that the dismissal of the issues necessarily results in a return of the case to the orphans’ court, where" all persons interested would have the right to become contesting parties; and that the effect of such dismissal is- to- place the case precisely as- it was before the filing of the caveat. It is apparent, therefore, that the dismissal of the issues ends the contest both as regards the issues themselves as well as all the proceedings in the orphans’ court,' and any person interested had the right to file another petition contesting the validity of the will. Both of the orders passed by the Orphans’ Court of Baltimore City on the 11th of May, 1861, must therefore he affirmed.” Judge Alvey dissented from the view of the majority of the Court requiring another petition and caveat to be filed, hut in the later case of Diffenderffer v. Griffith, 57 Md. 84, the Court, in reversing the action of the circuit court remanding the record to the orphans’ court in order that other issues might he applied for, etc., said: “The effect o-f the court’s ruling and order is to put an end to- the pending proceeding entirely, and put the surviving caveator or plaintiff to the necessity and expense of a new proceeding, issues and transcript to the circuit court. In so ruling we think there was error.” In the case at bar, the orphans’ court, instead of following the procedure approved in the cases referred to, dismissed the second petition and caveat of the caveator, and, as- the appeal from that -order was- dismissed by this Court for the reasons we have stated, the order became the final adjudication of the orphans’ court that the caveator could not file another petition and caveat. The only pos-sible theory -upon which the court could have dismissed the second petition and caveat is that the first proceeding’s and caveat were still pending, and it accordingly refused to dismiss the first caveat. As it is evident that the orphans’ court did not intend to deprive the caveator of her right to contest the will in question, we think we should treat the action of the orphans’ court as equivalent to a reinstatement of the original proceedings and caveat, with the force and effect of a new petition and caveat. The fact that the issues ordered to he sent to the circuit court are the same issues previously transmitted to the court affords no ground for objection to the order. As this view of the action of the orphans’ court disposes of the only objection urged in this Court, we will affirm the order appealed from.

Order affirmed, with costs.  