3500 ARTICLE 93

Where a devise of real estate fails by reason of incapacity of devisee, such real estate
does not pass by virtue of this section to the residuary devisee in the will. Rizer v.
Perry, 58 Md. 134.

This section applied. Ruckle v. Grafflin, 86 Md. 631; Brady v. Brady, 78 Md. 474.

This section referred to in deciding that a devisee is a competent witness to a will,
and that devise is not void because of his being such witness. Leitch v. Leitch, 114
Md. 336.

This section does not embrace a will executed prior to June 1, 1850—change made in
act of 1849, ch. 229, by adoption of Code of 1860. John v. Hodges, 33 Md. 522. And
see Carroll v. Carroll, 16 How. 275.

This section referred to in discussing the retroactive operation vel non of other
statutes. Estep v. Mackey, 52 Md. 596; Williar v. Baltimore, etc., Loan Assn., 45 Md.
557.

For cases dealing with retroactive operation vel non of act of 1849, ch. 229, secs. 1
and 2, prior to the Code of 1860, see Wilson v. Wilson, 6 Md. 488; Alexander v. Worth-
ington, 5 Md. 471 (see reporter's note at end of case); Magruder v. Carroll, 4 Md. 346;
Carroll v. Carroll, 16 How. 275.

As to the law prior to the adoption of the act of 1849, ch. 229, see Alexander v. Worth-
ington, 5 Md. 471; Kemp v. McPherson, 7 H. & J. 320.

An. Code, 1924, sec. 347. 1912, sec. 337. 1904, sec. 330. 1888, sec. 322. 1798.

ch. 101, sub-ch. 2.

352. Probate of wills may be made in the following manner, that is
to say:
See notes to secs. 353 and 360.

An. Code, 1924, sec. 348. 1912, sec. 338. 1904, sec. 331. 1888, sec. 323. 1798, ch. 101,
sub-ch. 15, sec. 1. 1831, ch. 315, sec. 1.

353. The orphans' courts, and in their recess, the registers of wills in
this State, are authorized to take the probate of any will, testament or
codicil, whether the same has relation to real or personal estate, or to both
real and personal estate.

In the light of this section and of secs. 335, 336, 358 to 361 and 363 and 364, the
jurisdiction of orphans' court to probate wills held exclusive, and a court of equity
held to have no power to determine whether a will should be probated or to revoke
an order of orphans' court admitting it to probate. When a will has been probated
and letters testamentary granted before a caveat is filed, such action of orphans' court
cannot be reviewed or revoked by a court of equity. Injunction denied. Bradley v.
Bradley, 117 Md. 519; Bradley v. Bradley, 119 Md. 649.

While the jurisdiction conferred upon orphans' court by this section is exclusive,
that court is in the exercise of such jurisdiction limited to the probate of wills, testaments
and codicils; it is not authorized to take probate of any paper writing not of such
testamentary character. A proceeding to probate a will is one in rem and calls for exer-
cise of judicial rather than ministerial powers of the court. Meaning of term "probate."
The probate of a will by orphans' court, like any other judgment of a court of com-
petent jurisdiction, is conclusive until reversed or-set aside according to law. Bradley v.
Bradley, 119 Md. 62.

What is meant by the probate of a will, and what is necessary thereto? Tilghman v.
France, 99 Md. 615.

The probate of a will decides merely on factum of instrument, and not upon right
of disposition Or proper exercise of a power; latter questions belong to courts of law
and equity. Michael v. Baker, 12 Md. 168.

This section referred to in deciding that when a will has been granted or denied
probate after contest, the decision is final and same question cannot again be raised
by suit in ejectment. Operation and effect of the act of 1831, ch. 315. Johns v. Hodges,
62 Md. 534.

For other cases involving the act of 1831, ch. 315, see Colvin v. Warford, 20 Md. 386;
Warford v. Colvin, 14 Md. 532; Randall v. Hodges, 3 Bl. 481; Townshend v. Duncan,
2 Bl. 86.

Act of orphans' court in admitting to record as a will a paper which is not a testa-
mentary paper is null and void. Robey v. Hannon, 6 Gill, 463.

For a case drawing a distinction between effect of probate of a will of real estate
and one of personalty, under acts of 1715, ch. 39, and 1798, ch. 101, see Warford v. Colvin,
14 Md. 553. And see Randall v. Hodges, 3 Bl. 481.

See notes to secs. 336 and 360; see also secs. 283 and 358.