Dombrovski v. Mayor of Baltimore

Offutt, J., delivered the opinion of the Court. The main question presented by this appeal is whether the first- cousin of a person, dying in this State possessed of personal property and leaving no nearer relatives, and where the estate of the decedent has been distributed to the State upon The theory that the decedent left no relatives within the fifth degree of consanguinity, can recover from such distributee, or the department thereof actually receiving the money, the proportion thereof to which such claimant would he entitled under the statute of distribution. dlie facts from which that question arises are these: Alary Blokes, a resident of Baltimore City, died intestate October 12th, 1918. Her nearest living relatives then were the appellants, her first cousins. Upon the death of Mary Blokes, Bichard Benjis, who was neither a relative nor a creditor of the deceased, applied to the Orphans’ Court of Baltimore City for letters of administration on her estate.

The letters were granted without the knowledge of the only relatives of the decedent who also lived in Baltimore. Benjis administered the estate, and distributed the surplus thereof to the hlayor and City Council of Baltimore. The appellants demanded that the appellee return the money so received by it to them, and upon its refusal they filed the bill of complaint in this case, in which they set up these facts, prayed for a discovery of the amount received by the appellee ⁴²⁴ and the circumstances attending its payment, for an accounting, and for a decree declaring the money to be held in trust for the appellants, and requiring the appellee to pay it to them. The appellee answered this bill, and its answer, after admitting the allegations of record facts, and denying or requiring proof of the other averments of the bill, contains this clause: “Answering the fifth paragraph of said bill, this respondent says that even if the complainants in said bill named are first cousins of the said Mary Blockes, which relationship this respondent neither admits nor denies, but demands full proof thereof, they have no right to demand a refund of the money belonging to the estate of said Mary Blockes and ordered by the Orphans’ Court of Baltimore City to be paid over by tire said Richard Benjes, administrator, to this respondent; that said money having been duly paid over to your respondent in accordance with the law for the use and support of the public schools of the City of Baltimore, no collateral more remote than brothers’ and sisters’ children can, under the provisions of section 136 of article 93 of the Code of Public General Laws of Maryland, claim or demand the payment or i*efund of the money paid to this respondent as aforesaid.” This paragraph has been treated as a demurrer to the bill.

Whether the appellants are entitled to recover from the Mayor and City Council of Baltimore City the money paid it by Benjes depends upon whether the relationship of the appellants to the decedent is too remote to permit them to assert their claim under the provisions of the statute of distribution. Section 135, article 93, Code Pub. Gen. Laws of Maryland, which should be read in connection with section 13⁶, provides: “If there be no widow or relations of the intestate within the fifth degree, which shall be reckoned by counting, down from the common ancestor to the more remote, the whole surplus shall belong to the State, and shall be paid to the board of county school commissioners of the county wherein letters of administration shall be granted upon the estate of the deceased, for the use of the public schools of said ⁴²⁵ county,” and section 136 reads: “If any legal representative shall appear after payment has been made under the preceding section, the hoard of county school commissioners receiving such payment shall pay the same to such representative ; hut no collateral more remote than brothers’ and sisters’ children shall claim under this section.” The question before us, therefore, is whether the relation of the claimants to the intestate is “more remote than brothers’ and sisters’ children.” The method of computing degrees of relationship of collateral relatives, claiming under this section, to the decedent, is fixed by section 135, since there is no reason why the rule fixed by that section for determining when the State would be entitled to take under the distribution should not he followed in determining whether a person entitled under the statute of distribution to take is empowered to recover his share of an estate erroneously distributed to the State under the provisions of section 135.

The degree of kinship between collaterals is under that section to be ascertained by counting down from the common ancestor to thb more, remote. State v. Greenwell, 4 G. & J. 415 . And if we apply that rale in this case, the claimants, as the first cousins of the decedent, were related to him in the second degree, since from