Burke, J.,
delivered the opinion of the Court.
Oh the 12th day of April, 1906, the Orphans’ Court of Baltimore City passed the following order:
“In the matter of the Estate ■ of Columbia Rhea.
In the Orphans’ Court, of Baltimore City.'
The matter of the petition of George - M. Dillard, executor of the last will and testament of Columbia Rhea, deceased, praying for the delivery to him as such executor of said will, the same being now in the custody of the Court; and the petitioners, Mary M. Bridge and Mary C. King, for the granting of an issue of fact, as the residence of said deceased, to be sent to the Court of law to be tried by a jury, having been heard and argued by counsel for the respective petitioners, the Court is of opinion, that the filing of the will in the manner it was, does not constitute a probate proceeding in this Court, and until the same is offered for probate this Court is without jurisdiction to grant the issue prayed, the same not arising at this time, will be refused: George M. Dillard as executor as aforesaid having by his petition demanded the custody of the will in controversy, for the purpose of. having it proved according to law, as is his duty to do, we will award him the custody thereof for that purpose. It is therefore ordered this 12th day of April, 1906, that the petition of Mary M. Bridge,&c., for the granting of the issue aforesaid be and the same is hereby dismissed; and that the custody of the will of the said Columbia Rhea, deceased, be and the same is hereby awarded to George M. Dillard, the executor named in said will; and that the costs of the procceeding be paid by the petitioners, Mary M. Bridge and Mary C. King.” The record in this case brings up for review the propriety of that order.
The questions in the case, which will be stated hereafter, arose out of the following facts: Columbia Rhea executed her last will on the 15 th day of June, 1897, by which she devised and bequeathed a large estate to the trustees of Randolph-
Macon College, a corporation of the State of Virginia, upon the trusts declared therein. In her will she declared herself to be a resident of the. city of Norfolk in the State of Virginia, and she appointed George M. Dillard of that city as the executor of the will. Her estate is estimated at $80,000, all of which, except about $6,000 in cash on deposit in a Baltimore bank, is located in Norfolk, Virginia. Mrs. Rhea, died in the city of Baltimore on the 1st day of March, 1906. On the 12th day of March, 1906, the appellants, Mary M. Bridge and Mary C. King, a sister and niece respectively of said testatrix, filed a caveat to the will in the Orphans’ Court of Baltimore City, in which they made the usual allegations of mental incapacity, fraud, undue influence, etc., and as a part of the caveat they attached the original will as an exhibit. By whom, and precisely where the will was discovered, or how it came into the possession of the appellants does not clearly appear. Upon these points the allegations of the parties are conflicting. After alleging the death of Mrs. Rhea in Baltimore City, and that she left no children, parent, or husband surviving her, and after a statement of their own relationship, they charged that Mrs. Rhea died intestate, and that Mary M. Bridge is the first person entitled to administer upon her estate. Then follows the^e allegations which constitute the 6th paragraph of the petition: “That among some of the things of the said Columbia Rhea, a paper writing now filed herewith as ‘Petitioner’s Exhibit No. 1,’ was discovered, which is marked in one or . more places, will of Columbia Rhea, and while as before stated the said Columbia Rhea in fact died intestate your petitioners are advised it is their duty to deposit said paper in this Court, so that whatever steps are deemed appropriate may be taken in reference thereto.” They prayed first that the Court might pass an order, or decree declaring and determining that said paper writing is not the last will and testament of the said Columbia Rhea, and that it is void and invalid; second, that letters testamentary, or in such way as may be deemed best may be granted to your petitioners upon the estate of Columbia Rhea; third, that issues be sent to a Court of law in order
that'the questions of fact alleged in respect to the will might be tried by a jury.
On March 20th, 1906, the appellee, George M. Dillard, the executor named in the will filed a petition in which he recited that while he was confined to his bed by illness in Norfolk, Virginia, the will in question had been discovered in a safe in the residence and home of the testatrix in that city, and brought to Baltimore on behalf of the appellants for the alleged purpose of being read to the relatives of the testatrix there, and then returning it to Norfolk to be filed in the proper Court for delivery to ' him as executor therein named, and that in violation of such promise had been filed in the Orphans’ Court in Baltimore as an exhibit to an alleged caveat proceeding by the appellants. As stated in the brief of counsel for the appellee, “this petition further states that the testatrix was a resident of Norfolk (as she herself recited in the will) and that all of her estate, consisting of real and personal property, aggregating about $80,000 (except about $6,000 on deposit in a Baltimore bank) was located there; and that her will should be offered for probate in the proper Court of that city. The petition, after concluding with the following paragraph prays, that the custody of the will be awarded to the petitioner:
“8. That in any case, however the filing of said will, not for the purpose of initiating proceedings for the probate thereof, but merely as an exhibit to an alleged caveat thereto in this Court, was altogether improper, irregular and unlawful; and that the said will should be in any case returned to your petitioner, who, as the executor named therein is the proper person to propound, or offer the same for probate in the proper Court or Courts.”
To this petition the appellants filed an answer reiterating and elaborating in many particulars the grounds of objections to the will stated in the caveat and prayed that the will be not delivered to George M. Dillard, the executor, for the purpose stated in his petition of filing or offering the same “for probate in the proper Court in said city of Norfolk.” The Court set the application of the executor for the delivery of the will
for hearing, at which time the appellants submitted the following issue which they asked the Court to send to a Court of law for trial before a jury: Was the said Columbia Rhea a resident of the city of Baltimore at the time of her death therein, on the first day of March, nineteen hundred and six? Whereupon the Court passed the order appealed from which is set out in the beginning of this opinion.
The’sole questions, therefore presented are first, was it the duty of the Orphans’ Court, under the circumstances narrated, to háve sent an issue as to Mrs. Rhea’s residence to a Court of law for trial? Secondly, ought the will to have been delivered to George M. Dillard, the executor, for the purpose stated in his petition therefor? It has long been settled in this State that it is not the right of the litigant in the Orphans’ Court, under the provisions of the statutes embodied in Art. 93,
secs. 2pj and 2.54, Code 1904,
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Burke, J.,
delivered the opinion of the Court.
Oh the 12th day of April, 1906, the Orphans’ Court of Baltimore City passed the following order:
“In the matter of the Estate ■ of Columbia Rhea.
In the Orphans’ Court, of Baltimore City.'
The matter of the petition of George - M. Dillard, executor of the last will and testament of Columbia Rhea, deceased, praying for the delivery to him as such executor of said will, the same being now in the custody of the Court; and the petitioners, Mary M. Bridge and Mary C. King, for the granting of an issue of fact, as the residence of said deceased, to be sent to the Court of law to be tried by a jury, having been heard and argued by counsel for the respective petitioners, the Court is of opinion, that the filing of the will in the manner it was, does not constitute a probate proceeding in this Court, and until the same is offered for probate this Court is without jurisdiction to grant the issue prayed, the same not arising at this time, will be refused: George M. Dillard as executor as aforesaid having by his petition demanded the custody of the will in controversy, for the purpose of. having it proved according to law, as is his duty to do, we will award him the custody thereof for that purpose. It is therefore ordered this 12th day of April, 1906, that the petition of Mary M. Bridge,&c., for the granting of the issue aforesaid be and the same is hereby dismissed; and that the custody of the will of the said Columbia Rhea, deceased, be and the same is hereby awarded to George M. Dillard, the executor named in said will; and that the costs of the procceeding be paid by the petitioners, Mary M. Bridge and Mary C. King.” The record in this case brings up for review the propriety of that order.
The questions in the case, which will be stated hereafter, arose out of the following facts: Columbia Rhea executed her last will on the 15 th day of June, 1897, by which she devised and bequeathed a large estate to the trustees of Randolph-
Macon College, a corporation of the State of Virginia, upon the trusts declared therein. In her will she declared herself to be a resident of the. city of Norfolk in the State of Virginia, and she appointed George M. Dillard of that city as the executor of the will. Her estate is estimated at $80,000, all of which, except about $6,000 in cash on deposit in a Baltimore bank, is located in Norfolk, Virginia. Mrs. Rhea, died in the city of Baltimore on the 1st day of March, 1906. On the 12th day of March, 1906, the appellants, Mary M. Bridge and Mary C. King, a sister and niece respectively of said testatrix, filed a caveat to the will in the Orphans’ Court of Baltimore City, in which they made the usual allegations of mental incapacity, fraud, undue influence, etc., and as a part of the caveat they attached the original will as an exhibit. By whom, and precisely where the will was discovered, or how it came into the possession of the appellants does not clearly appear. Upon these points the allegations of the parties are conflicting. After alleging the death of Mrs. Rhea in Baltimore City, and that she left no children, parent, or husband surviving her, and after a statement of their own relationship, they charged that Mrs. Rhea died intestate, and that Mary M. Bridge is the first person entitled to administer upon her estate. Then follows the^e allegations which constitute the 6th paragraph of the petition: “That among some of the things of the said Columbia Rhea, a paper writing now filed herewith as ‘Petitioner’s Exhibit No. 1,’ was discovered, which is marked in one or . more places, will of Columbia Rhea, and while as before stated the said Columbia Rhea in fact died intestate your petitioners are advised it is their duty to deposit said paper in this Court, so that whatever steps are deemed appropriate may be taken in reference thereto.” They prayed first that the Court might pass an order, or decree declaring and determining that said paper writing is not the last will and testament of the said Columbia Rhea, and that it is void and invalid; second, that letters testamentary, or in such way as may be deemed best may be granted to your petitioners upon the estate of Columbia Rhea; third, that issues be sent to a Court of law in order
that'the questions of fact alleged in respect to the will might be tried by a jury.
On March 20th, 1906, the appellee, George M. Dillard, the executor named in the will filed a petition in which he recited that while he was confined to his bed by illness in Norfolk, Virginia, the will in question had been discovered in a safe in the residence and home of the testatrix in that city, and brought to Baltimore on behalf of the appellants for the alleged purpose of being read to the relatives of the testatrix there, and then returning it to Norfolk to be filed in the proper Court for delivery to ' him as executor therein named, and that in violation of such promise had been filed in the Orphans’ Court in Baltimore as an exhibit to an alleged caveat proceeding by the appellants. As stated in the brief of counsel for the appellee, “this petition further states that the testatrix was a resident of Norfolk (as she herself recited in the will) and that all of her estate, consisting of real and personal property, aggregating about $80,000 (except about $6,000 on deposit in a Baltimore bank) was located there; and that her will should be offered for probate in the proper Court of that city. The petition, after concluding with the following paragraph prays, that the custody of the will be awarded to the petitioner:
“8. That in any case, however the filing of said will, not for the purpose of initiating proceedings for the probate thereof, but merely as an exhibit to an alleged caveat thereto in this Court, was altogether improper, irregular and unlawful; and that the said will should be in any case returned to your petitioner, who, as the executor named therein is the proper person to propound, or offer the same for probate in the proper Court or Courts.”
To this petition the appellants filed an answer reiterating and elaborating in many particulars the grounds of objections to the will stated in the caveat and prayed that the will be not delivered to George M. Dillard, the executor, for the purpose stated in his petition of filing or offering the same “for probate in the proper Court in said city of Norfolk.” The Court set the application of the executor for the delivery of the will
for hearing, at which time the appellants submitted the following issue which they asked the Court to send to a Court of law for trial before a jury: Was the said Columbia Rhea a resident of the city of Baltimore at the time of her death therein, on the first day of March, nineteen hundred and six? Whereupon the Court passed the order appealed from which is set out in the beginning of this opinion.
The’sole questions, therefore presented are first, was it the duty of the Orphans’ Court, under the circumstances narrated, to háve sent an issue as to Mrs. Rhea’s residence to a Court of law for trial? Secondly, ought the will to have been delivered to George M. Dillard, the executor, for the purpose stated in his petition therefor? It has long been settled in this State that it is not the right of the litigant in the Orphans’ Court, under the provisions of the statutes embodied in Art. 93,
secs. 2pj and 2.54, Code 1904,
to have any question he may see fit to propose sent to a Court of law for trial. The law directs that only such questions of fact as are* properly in issue between the parties in that Court shall be sent to a Court of law .upon the application of either party. It is the duty of the Orphans’ Court before it takes action upon the issues presented to determine whether it has jurisdiction of the subject-matter, or whether the questions raised by the issues are properly before the Court for decision, or whether the proposed issues are irrelevant or immaterial to the questions properly before the Court. If the Court has no jurisdiction in the premises, if the questions are not properly before the Court, or not relevant, or material, it is the duty of the Court to refuse to send the issues.
Smith
v. Young, 5 Gill, 146;
Williamson
v.
Montgomery &
Spencer, executors, 40 Md. 373;
Munnickhuysen
v.
McGraw,
35 Md. 280;
Cain
v.
Warford,
3 Md. 462.
The Orphans’ Court unquestionably had no jurisdiction to send up the issues as to Mrs. Rhea’s residence under the petition of the appellants filed March 12th, 1906, because it had no jurisdiction to take any action in regard to the will, or the residence of the testatrix, until the will was before the
Court in some proper way for probate- That the Orphans’ Court of Baltimore City had no power, under that petition, to declare, as the petition asked .it to do, “that said paper writing is not the last will and testament of said Columbia Rhea, and that it is null and void,” because the Orphans’ Court has no jurisdiction to pass upon the validity or invalidity of the will, until the will has been propounded for the purpose of having it proved. ■ This was conclusively settled in the case of
Emmert
v.
Stauffer,
64 Md. 543, and hence to have sent the issue under that petition would have been to institute an inquiry concerning a matter not properly before the Court, and over which the Court then had no jurisdiction.
We decide that the question of the residence of a testatrix can not be raised in the Orphans’ Court, until the question as to the probate of the will is properly before the Court. The will must either be offered for probate or the question of its probate presented to the Court under proper proceedings for that purpose. These propositions appear to be clearly established by the cases of
Emmert
v.
Stauffer, supra,
and
Stanley
v.
The Safe Deposit Company,
87 Md. 454. The first decides that “the Orphans’ Court has no jurisdiction to determine the question of probate until the will is exhibited for the purpose of having it proved.” And the latter decided that the question as to the residence of the testator at the time of his death, “is involved in, and is an inseparable part of, the power to grant the probate.” The question of the probate of the will not being before the Court in. this case, the issue as to the residence of Mrs. Rhea at the time of her death was, therefore, properly refused. Had the appellants instead of offering the will for cavaet, as was done, deposited it with the Court, or the Register of Wills, and then obtained an order of the Court directing the executor to produce the will for probate, the question of the testatrix’s residence would have then been properly before the Court for determination.
. The Orphans’ Court held that, under the circumstances disclosed by the record, the executor was entitled to the custody of the will, and directed that it be delivered to him, and in this determination we agree.
Order affirmed, the appellants to pay the costs above and below.