TESTAMENTARY LAW 3503

proper; and if no objection shall be made or caveat entered on or before
the day fixed, the court or register of wills in their recess, may take the
probate of such will; but if objection shall be made on or before the day
appointed, the said court shall have cognizance of the affair, and shall
determine according to the testimony produced on both sides.

Where no relation of deceased is present when will is offered for probate, notice must
be given to some of next relations; mode of notice; proper procedure. Perrin v. Praeger,
154 Md. 547.

Cited but not construed in Kay v. Roberts, 170 Md. 403.

The notice required by two preceding sections distinguished from that required by
this section. Issues will not be granted on question of whether notice prescribed by
this section has been given, after action of orphans' court thereon. Time within which
a petition raising question of whether the requisite notice has been given must be filed.
Stanley v. Safe Deposit Co., 88 Md. 405. And see Pacy v. Cosgrove, 113 Md. 320.

If a caveat has already been filed orphans' court cannot probate will until the caveat
is disposed of. The prescribed notice must also appear to have been given. Keene v.
Corse, 80 Md. 22.

When a decision is made between opposing parties, it is a judgment in rem con-
clusively establishing validity vel non of will. The court has no power to pass on the
probate of will until it is presented for that purpose. Emmert v. Stouffer, 64 Md. 553;
Pleasants v. McKenney, 109 Md. 277; Worthington v. Gittings, 56 Md. 547.

Where a will is presented with a petition stating that it is not will of deceased, and
only testimony on behalf of those assailing the will is heard, those in favor of will
being given no opportunity to be heard, orphans' court is without jurisdiction to de-
cide question of probate. Emmert v. Stouffer, 64 Md. 553.

A question as to whether notice required by this section has been given cannot be
raised for first time in court of appeals after argument there. Stanley v. Safe Deposit
Co., 87 Md. 458.

Cited but not construed in Campbell v. Porter, 162 U. S. 483.

See notes to secs. 353, 358 and 359.

An. Code, 1924, sec. 356. 1912, sec. 346. 1904, sec. 339. 1888, sec. 330. 1798, ch. 101,

sub-ch. 2, secs. 9, 10.

361. If any- person whatever shall enter a caveat against such will or
codicil, either before or after it shall be exhibited to the register of wills
or orphans' court, the said caveat shall be decided by the court. If any
person shall enter a caveat against any will or codicil of which probate
shall have been taken by the register as aforesaid, no letters testamentary
shall be granted until a determination shall be had in the orphans' court.

Any person having an interest in property of testator, if will is annulled, may caveat
will; status of legatee under former will; status of executor and trustee. Johnston v.
Willis, 147 Md. 240.

Cited but not construed in Collins v. Cambridge Hospital, 158 Md. 115.

This section gives orphans' court jurisdiction to decide caveats, and when issues
have been properly submitted and fairly passed upon, decision of the court is final
and binding unless reversed. This is equally true where issues are passed upon by
orphans' court as where they are passed upon by a jury. McDaniel v. McDaniel, 86
Md. 626. And see Offutt v. Gott, 12 G. & J. 386.

The caveat of a will in the orphans' court distinguished from a caveat in equity against
a patent. Cunningham v. Browning, 1 Bl. 324.

Cited but not construed in Campbell v. Porter, 162 U. S. 483.

As to issues, see secs. 263 and 265 and notes.

See notes to secs. 353 and 359.

An. Code, 1924, sec. 357. 1912, sec. 347. 1904, sec. 340. 1888, sec. 331. 1798, ch. 101,
sub-ch. 2, sec. 12. 1890, ch. 416.

362. Every executor or other person exhibiting a will shall be examined
on oath whether or not he knows of any other will or codicil, and in what
manner the will or codicil exhibited came into his hands.
This section demands evidence (1) as to whether will exhibited is last will of testator
and (2) as to its custody. The first point is Jurisdictional to the extent that court must
be satisfied as to it before probate; the probate would not be affected, however, by failure
to examine person exhibiting will as provided by this section, if court has secured the
information from other sources. This section construed in connection with secs. 335,