Donaldson v. Raborg

Bartol, J., delivered the opinion of this Court. Without repeating the facts in this case, about which there is no dispute between the parties, we proceed at once to decide the questions of law presented by the record. The proceeding was instituted under the 72nd section of the 93rd Article of the Code, which contains the same provisions as the Act of 1820, ch. 174, sec. 3, and must receive the same construction as has been given to the Act of 1820. To the petition filed in the Orphans’ Court, Donaldson’s executors, the defendants below, pleaded three pleas, upon which the questions argued before us have arisen.

Departing from the order adopted by the counsel in the argument, the defence under the third plea will first be considered. This plea denies the right of the petitioner to maintain the suit, upon the ground that the defendants are responsible only to the next of kin or distributees of Christopher Raborg, deceased ; that no administration de bonis non was necessary, and that the case made by the pleadings ³²⁵ is not one within the 12nd section of Art. 93 of the Code, in which the petitioner is entitled to the remedy there provided. In Alexander vs. Stewart, et al., 8 G. & J., 326 , the Court of Appeals decided that “the Orphans’ Courts have exclusive cognizance in the appointment of administrators de bonis non, and where an executor had not completed his trust, by the payment of all legacies, and the delivery over of property in his hands to the persons entitled, the exercise of the power of appointment was rightful.” In that case there were assets of the testator existing in specie unadministered, and the appointment of an administrator de bonis non, was declared to he indispensably necessary to give title to the distributees, who could derive title through no other channel. So in Scott vs. Fox, 14 Md. Rep., 388, it was held, that letters of administration ought to be granted in case no final distribution has been made under the order of the Orphans’ Court.

The principle decided by those eases seems to establish the propriety of the appointment of an administratrix de bonis non in this case. Muncaster vs. Muncaster, decided at the April term, 1865, is not in conflict with the cases above cited. That was an application to the Orphans’ Court by beirs-at-law or next of kin of a decedent, to compel the executor of an administrator to pass an account of his testator’s administration, in conformity with the 11th section of Art. 93 of the Code ; no administration de bonis non had been granted ; and this Court decided that the Orphans’ Court had jurisdiction to enforce the performance of the duty prescribed by the Code, and that the petitioner being a party in interest had a standing in Court to maintain the suit. The question whether an administration de bonis non might not become necessary in order finally to settle the estate and make distribution, was not raised or decided. ³²⁶ Here the assets of Christopher Raborg, deceased, were received by Samuel Donaldson, the administrator d. b. n. in money ; by his last administration account, passed on the 25th day of April, 1837, there remained in his hands belonging to the estate the sum of $4,228.76, which the petition alleges and plea admits, remained in his hands at the time of his death.

The question is whether money so retained may be recovered by the administratrix d. b. n. by a proceeding under the 72d section of the 93rd Article of the Code. This question, we think, has been conclusively settled by the case of Lemmon vs. Hall, 20 Md. Rep., 168 , in which the construction of the Act of 1820, was established in accordance with the ruling of the Supreme Court in De Valengin’s Adm’r vs. Duffy, 14 Peters, 291 , and of the Court of Appeals in Gardner & Hughes’ Ex’crs vs. Simmes, 1 Gill, 428 . See, also, Sibly vs. Williams, 3 G. & J., 63 . It is now settled in Maryland, that money remaining.in the hands of an executor or administrator, in that character, at the time of his death, is subject to an order to pay ■over to the