SOPHIA HUNTER and HON. CHARLES H. D. SIMPSON, Commissioner of Probate, Montserrado County, Appellants, v. ORA HORTON, Widow, ROMEO, DAIELETTE, STEPHEN, and FRANCIS HORTON, heirs of D. R. HORTON, by and through their counsel, LAWRENCE A. MORGAN, Appellees.

APPEAL FROM RULING OF JUSTICE PRESIDING IN CHAMBERS GRANTING APPLICATION FOR WRIT OF CERTIORARI TO THE MONTHLY AND PROBATE COURT, MONTSERRADO COUNTY. Argued October 17, 1968. Decided February 6, 1969. 1. In order for a notice of change of counsel to be legally effective, a copy thereof must be served on the opposing party. 2. Where there has been a failure to serve such notice on the opposing party, the party seeking change of counsel is bound by the acts of disfavored counsel, though they are disavowed by the party. 3. A letter addressed to the clerk of a court, which dismisses counsel, does not effect such change by itself, in the absence of proper notice served upon adversaries. 4. Objections to probate are a nullity when they have been filed for a lengthy period of time, in the instant case for 116 days, with no copy ever being served on the proponent in the matter to which objections were entered. One hundred and sixteen days after testator’s will had been offered for probate, objections to probate were withdrawn by counsel, whose removal had been sought by objector in a letter to the clerk of the Probate Court. Neither the objections or the notice of change of counsel had ever been served on proponent. The Commissioner of Probate denied the withdrawal of objections and ordered the matter transmitted to the Circuit Court for disposition. Proponent obtained a writ of certiorari from the Justice presiding in chambers, from which ruling respondent appealed. The ruling was affirmed, the order of the Commissioner was vacated and probate proceedings ordered continued. 142 LIBERIAN LAW REPORTS S. Raymond Horace Morgan for appellees. 143 Lawrence A. for appellants. MR. JUSTICE the court. WARDSWORTH delivered the opinion of We glean from the record in these proceedings before us that the late Daniel Richard Horton departed this life on September 28, 1967, and on October i t, 1967, a document entitled the last will and testament of Daniel R. Horton was submitted for probate to the Monthly and Probate Court for Montserrado County, by the filing of same in the office of the clerk of that court, together with an attached petition. During the interim it is alleged that several irregularities or errors were committed by the Commissioner of Probate in respect to the petition filed, with regard to the probation and registration of the last will and testament of the late D. R. Horton. Ora Horton, widow of the aforesaid D. R. Horton, and others, filed a petition, on March 20, 1968, praying for the issuance of a writ of certiorari to review a ruling made by the Commissioner of Probate in connection with the probation and registration of the said last will and testament. The petition was heard and disposed of on June 5, 1968, ruled in favor of petitioners, to which ruling the respondents noted exceptions and prayed an appeal to the full bench, which was granted. The petition embraced five counts : “a. That on the 11th day of October, 1967, petitioners submitted for probate the last will and testament of the late D. R. Horton, to the Monthly and Probate Court for Montserrado County, by the filing of same in the office of the clerk of that court, together with an attached petition. “b. According to law said petition was read, parties notified to appear for the proving of the will, and notice ordered placarded to this effect. 144 LIBERIAN LAW REPORTS “c. That pending the proving of said will, respondent Sophia Hunter, by and through her counsel, the Simpson law firm, filed objections to the probate of the said last will and testament of the late D. R. Horton, of Montserrado County, in particular paragraph four thereof, neglecting, however, to serve a copy of the objections on petitioners. “d. That on the 14th day of March, 1968, however, a copy of the notice of withdrawal of her objections to the probate of said last will and testament of D. R. Horton, as filed in the office of the clerk of the Monthly and Probate Court, Montserrado County, by counsellor C. L. Simpson, Sr., was exhibited to petitioners’ counsel, Lawrence A. Morgan, in the chambers of the Supreme Court, where he was also advised by the said counsellor Simpson, of the Simpson law firm, to apply for the proving of the will. “e. That most strangely, shockingly and surprisingly, when your petitioners arrived in the Probate Court after leaving Supreme Court, counsel was handed by the Commissioner of Probate, Charles H. D. Simpson, a copy of a five-page written document, being a ruling handed down on the 14th day of March, 1968, by him, denying the objector’s withdrawal of her purported objections to the last will and testament of Daniel Richard Horton, and ordering the case transferred to the Circuit Court.” We have deemed it expedient to summarize respondent’s return. “a. Respondents deny the averment in count three of the petition, being false and misleading in that the objections to the last will and testament of the late Daniel R. Horton, in particular paragraph four thereof, were filed in the clerk’s office of the Probate Court on the 18th day of November, 1967, and simultaneously a copy was served on the respondents therein named on the 19th day of November, 1967; but de- LIBERIAN LAW REPORTS 145 spite petitioners’ having due and timely notice of the filing of said objections and being aware of the limited time available to them to prepare and file the proper answer if they wished to, they failed and neglected to do so. A copy of a certificate from the clerk’s office is proferted and marked exhibit ‘A’ to form a part of this return. “b. Respondents maintain that the letter purporting to be a notice of withdrawal addressed to the clerk by counsellor C. L. Simpson was rejected and not given cognizance by the court, hence, did not form a part of the court records, because respondent Sophia Hunter had previously informed the court by a letter dated February 13, 1968, quite 21 days before counsellor Simpson’s letter, her former counsel, that she had changed counsel and would notify the court of the name of the new counsel later; but that she meanwhile objected to counsellor Simpson, or the Simpson law firm, filing any document assuming to be the withdrawal of her objections to the probation and registration of the last will and testament of Daniel R. Horton. The Court is referred to a copy of said letter made profert and marked exhibit ‘B.’ “c. Respondents in count three of their return maintain that at any time during the trial of a case a party to an action may give notice to court of change of counsel, which should not in anywise prejudice the cause of action, and contend further that a change of counsel does not give former counsel any privilege or right to withdraw pleadings already filed, especially so where the party giving notice of the change of counsel had already indicated her objections to the withdrawal of her objections to the probate of the last will and testament of Daniel R. Horton, and filed a caveat, as can be seen from a copy of her letter already marked exhibit ‘IC and proferted in count two of this return. 146 LIBERIAN LAW REPORTS “d. In count five of the petition it is averred that the court handed down a ruling on the i4th day of March, 1968, denying respondent’s withdrawal of her objections and ordering the case transferred to the Circuit Court, 6th Judicial Circuit, and petitioners were served with a copy of the notice of assignment to appear at court at 10 :30 o’clock in the morning of March i4th, 1968, but failed and neglected to do so up to the call of the case, neither did petitioners’ counsel, Lawrence A. Morgan, by any stretch of imagination, inform the court as to the cause of his or their absence, as can be seen from a copy of minutes of court of March 14, 1968, herewith made profert and marked exhibit ‘C.’ “e. Respondents having alleged in count six of the return that the Probate Court lost jurisdiction in the matter until some determination has been made of same by the Circuit Court for the Sixth Judicial Circuit to which said matter has been referred, and since petitioners would have adequate opportunity for legal remedy from any adverse action taken against them in the said Circuit Court, the filing of these certiorari proceedings is premature and unmeritorious and should therefore be dismissed with costs against petitioners.” The case was assigned to be heard on May 29, 1968, by the Justice in chambers. At the call of the case, counsellor S. Raymond Horace delivered a copy of respondents’ return to counsel for the opposing party, counsellor Lawrence A. Morgan, who made the following observation : “That although the respondents were commanded on the 27th day of May, 1968, they only filed said return on the 28th day of May, 1968, and served a copy on petitioners at the call of the case this morning, being the 29th of May, 1968. The conduct on part of the respondents has deprived petitioners of the opportunity of filing an answering affidavit to the following LIBERIAN LAW REPORTS 147 allegations set forth in the return and unsupported by the records, but which petitioners desire going on record before this Court as being denied.” The Court intimated to the parties that respondents’ counsel contravened the Rule of Court in respect to serving a copy of the return on the opposing party before the case was assigned for hearing, whereupon counsel for petitioners waived the tardy service and requested the Court to go into the merits of the case. In checking the records from the Monthly and Probate Court, Montserrado County, we observed a letter over the signature of Miss Sophia Hunter addressed to Mrs. Susanna E. Williams, clerk, Monthly and Probate Court, Montserrado County, which reads : “February 23, 1968 “Mrs. Susanna E. Williams, Clerk, Monthly and Probate Court, Montserrado County, R.L., “Dear Mrs. Williams : “This is to officially inform you that the Simpson law firm is no longer representing me. “My former counsel, C. L. Simpson, has given up my case and has turned all of my legal documents over to me. “I shall in due course inform you who will represent me. “I object to the Simpson law firm withdrawing any document filed in the above court on my behalf. “And for so doing this shall constitute your authority. “Very truly yours, “(Sgd.) SOPHIA HUNTER.” It is alleged by respondents that Sophia Hunter informed the court by letter dated February 23, 1968, twenty days before counsellor Simpson’s notice of withdrawal of objections, that she had changed counsel and would notify the court later of her new counsel. The 148 LIBERIAN LAW REPORTS statute in respect to notice of change of counsel provides, “If after the commencement of an action either party changes his counsel, he must forthwith file in the clerk’s office, notice of such change and serve a copy thereof on the other party to the action.” Civil Procedure Law, 1956 Code 6:229. The petitioners denied that a copy of the notice of change of counsel ever was served on them, and there is no showing by the respondents that the petitioners were actually served with a copy of the notice of change as required. In respect to a contested will, this Court in Roberts v. Roberts, [1942] LRSC 4; 7 L.L.R. 358 (1942), at p. 359, spoke of contested wills: _ “The majority of us are of opinion that in all cases of contested wills, the objections and all other issues of whatever nature should, under statute, be submitted to a jury to be decided by them; and in that a judge cannot decide issues raised in objections to the probation of a will under our statute without a jury, for the statute makes the trial of contested wills a singular procedure, extra from all other legal trials. And said probate court shall cause the probate of any will, or testamentary paper that shall possess the features of one; shall have a record of wills proven in that court. Contested wills shall be sent to the Court of quarter sessions to be tried by jury, upon its merits, and by them either rejected, set aside, or quashed, or ar proved; and if rejected, the same may be removed by appeal to the Supreme Court on petition made by any person aggrieved, according to the laws which relate to appeal; and if found valid, shall be sent back to the probate court to be placed on its records. Said court shall grant letters of administration, and shall have all the power necessary to settle estates; and to do all other matters and things of a court of probate.” From the foregoing, it is obvious that a contested will LIBERIAN LAW REPORTS 149 is a proper subject for transmission to the Circuit Court for disposition, but in this case, as aforesaid, there is no evidence that petitioners were furnished a copy of the objections filed against the probation and registration of the said will, nor did the Probate Commissioner, whose duty it was, notify petitioners of the filing of a caveat. The letter of Sophia Hunter addressed to Mrs. Susanna E. Williams, clerk of the Monthly and Probate Court, Montserrado County, was intended as notice of change of counsel, but she failed to serve a copy as required, upon the opposing side. As a result, counsellor Simpson was not removed as counsel and had the authority to perform any legal act for and on behalf of his client, Sophia Hunter, the objector. Therefore, the notice of withdrawal of objections as filed by him was legally effective. Moreover, the purported objections constituted a mere scrap of paper or, in other words, a legal nullity, for the reason that one hundred and sixteen days had elapsed since its filing, prior to withdrawal, and no copy thereof had been served in that time on the proponent, rendering the Probate Commissioner legally powerless to transmit the will to the Circuit Court. Therefore, the ruling of the Probate Commissioner transmitting the will to the Circuit Court was unauthorized by law. At any rate, it does not seem reasonable for objections to have been filed, for the seven acres giving rise to the objections are clearly not part of testator’s estate. Therefore, in view of the foregoing, the ruling of the Justice in these proceedings is hereby sustained, the order of the Probate Commissioner vacated, and probate proceedings continued, with costs against respondents. And it is hereby so ordered. Ruling affirmed, order of Commissioner vacated, and probate proceedings continued.