Clay v. Brittingham

By the Court: A majority of this Court thinking the order appealed from correct, affirm such order for the reasons well assigned in the opinion of the Court below. Order affirmed. Grason, J., delivered the following dissenting opinion in which Bartol, C. J., concurred. This appeal is taken from an order or decree of the Circuit Court for Somerset county, dismissing the petition of the appellant praying the passage of an order directing the appellee to pay over to him certain funds in his hands, the proceeds of sales of real estate, sold under the decree of said Court.

The question for decision arises upon the construction of section 196, of the 93d Article of the Code, which provides that, if any non-resident infant shall be entitled to any legacy, bequest or distributive share, or to the proceeds of any sale, made under a decree of a Court of Equity, or to any money or personal property in the hands of a trustee appointed by will, or shall be entitled to the proceeds of any sales of property in this State, or to any legacy, bequest or distributive share of any personal property in the hands of any administrator or guardian in this State, and such infant has a guardian regu ⁶⁸³ larly appointed in the State, district or territory of the United States, in which such infant resides, such foreign guardian may obtain an order from the proper Court for the payment, transfer or delivery of such proceeds, legacy, bequest or distributive share, upon the terms prescribed in the next succeeding section. The 137th section provides that the foreign guardian shall file a petition stating that he has been duly appointed guardian to such infant by the proper authority of the State, district or territory, where the infant resides, that he hath given good and sufficient security for the faithful performance of his trust as guardian, and that as guardian he then has the custody of the person of such infant; and setting forth the entire amount of personal property, including that in this State, belonging to such infant, and also the income of the real estate, if any, of such infant, which hath come, or is likely to come, into the hands of such guardian, which petition shall he accompanied by a duly authenticated copy of the record of his appointment and qualification as such guardian, and of the bond, or other instrument or security, so given as aforesaid. Section 198 provides that the petition shall be verified by the affidavit of such guardian, and the sufficiency of the security shall be proved by the affidavit of the chief clerk or prothonotary of the Court by whom such security was taken, or by the affidavit of some other disinterested and credible witness. The money, sought to be transferred to the foreign guardian by the petition filed in this case, is the proceeds of real estate sold under a decree of the Circuit Court of Somerset county, under sections 36 and 37, of the 16th Article of the Code.

We think it perfectly clear that section 196 applies only to personal property in this State belonging to a non-resident infant. This is shown by the context, and is apparent also from the terms of section 197. It'was contended in the argument in this Court that the 196th section does not necessarily embrace the proceeds of sales of infants’ real estate, but that, even if it does, that section must be construed in connection with sections 45, 46 and ⁶⁸⁴ 48, of Article 16, of the Code. The language used in section 196 is too plain and comprehensive to leave room for a doubt that the proceeds of such sales are embraced, for they are mentioned and specified in those very words.

Assuming that the sections of Article 93, before cited, are in pari materia with the sections of Article 16, let us so construe them, and see whether they cannot all stand together. Section 45 provides that “ where the real estate of an infant is sold upon the application of his guardian or proehein ami, the money arising from such sale shall be invested as the Court shall direct, in the name of such infant, and the surplus interest, after deducting what may be necessary for the maintenance and education of such infant, shall also be invested as aforesaid, and such investments shall not be transferred except by order of the Court, and any transfer without such order shall be void.” It has been argued that, -when the proceeds have been thus invested, they cannot be transferred to a foreign guardian; that the law does not contemplate such transfer and that the Courts will not permit its transfer to a party without their jurisdiction, when they would not deliver possession of the fund even to a guardian residing within their jurisdiction and subject to their control. It is true that a guardian, living in this State, will not be permitted to take possession of the proceeds of the sales of his ward’s real estate' sold under sections 36 and 37. But, when a foreign guardian files his petition and complies with the requirements of the '196th, 197th and 198th sections of the 93d Article of the Code, the Court is then required by the express provisions of the 196th section to deliver the funds to him.

Until such application is made, the procéeds of the sale will be invested under the direction of the Court, and preserved and managed in the same manner as the proceeds of sales of lands belonging to infants residing within this State. But it is argued that the sale of an infant’s real estate does not wholly convert it into personalty because section 48, of Article 16, enacts that upon the death of such infant under age, intestate and without ⁶⁸⁵ issue, the proceeds of the sales shall descend or be distributed, as the property or estate would if it had not been sold. The sale of an infant’s real estate certainly changes the character of the property, and the proceeds thereof are clearly personal property, and in the event of the death of the infant such proceeds of sales would be distributed to its personal representatives, in the absence of statutory provision to the contrary; and all that is done by the 48th section, is to invest this personalty with one of the characteristics of realty in certain contingencies, that is, to make it descend to the