Fowler v. Brady

Thomas, J., delivered the opinion of the Court. The appellant, John W. Fowler, filed in the Orphans’ Court of Calvert County a petition alleging that on the 26th of ²⁰⁶ September, 1906, that Court on the petitions of Basil O. Brady and Lee Brady, ordered a yoke of oxen and a horse to be stricken from the inventory of the personal estate of Basil. T. Brady, deceased, returned to that Court by T. M. Chaney, the administrator, to the great damage of the petitioner, who is the largest creditor of the deceased; that “upon newly discovered evidence” the petitioner was ready to prove to that Court that the said Basil O. Brady and Lee Brady did not at the death of the deceased own said property, hut that the deceased obtained said yoke of oxen from Basil O. Brady in exchange for another yoke of oxen, and said horse from Lee Brady in exchange for another horse; that at the time of his death the deceased also owned another ox, which was not included in the inventory returned by the administrator, because soon after the death of the deceased it was sold by Lee Brady, who appropriated the proceeds of the sale and never accounted therefor, and that there “were other effects” of the deceased, to wit, “valuable guns and others things” wrongfully taken from the premises of the deceased, which should have been included in the inventory. The prayer of the petition is that “these issues of fact be sent to a Court of law to be tried and determined by a jury” and “that notice be given to the parties to make answer.” In reply to a writ of diminution the Register of Wills of Calvert County transmitted to this Court certified copies of the petitions of Basil O. Brady and Lee Brady, alleging that the yoke of oxen and horse referred to belonged to them, and praying that they be stricken from the inventory returned by the administrator, and of the orders of the Orphans’ Court striking said property from the inventory.

It, therefore, appears from the petition of the appellant and from the petitions of Basil O. Brady and Lee Brady and the orders of the Court thereon, passed on the 11th of September, 1906, that the Orphans’ Court determined that the yoke of oxen and horse referred to in said petitions and included in the inventory returned to that Court by the administrator were not the property of the deceased, but the property of the ²⁰⁷ said Basil O. Brady and Lee Brady, and accordingly ordered said property to be stricken from-the inventory, and that tbe object of the appellant’s petition is to now have a jury pass upon the identical questions that were passed upon and determined by the Orphans’ Court on the petitions of Basil O. Brady and Lee Brady — in other words, to have a jury review the action of the Court. If the Orphans’ Court had jurisdiction to determine the question of title to the property on the petitions of Basil O. Brady and Lee Brady and to pass the orders of September 11th, 1906, until these orders were revoked by that Court, there were no issues left to be tried by a jury. The only questions presented by the petitions were determined by the Court, and its action, while subject to review and reversal on appeal taken in proper time, could not be reviewed by a jury. Miller v. Gehr, 91 Md. 716 .

But did the Orphans’ Court have jurisdiction to pass the orders of September 11th, 1906 ? Section 204 of Art. 93 of Code provides that in every case where letters testamentary or of administration are granted “an inventory or inventories shall be returned to the office granting the administration.” Sec. 222 declares that “with the exception of the articles enumerated in the two preceding sections (wearing apparel and provisions laid un by the deceased for the consumption of the family), all the assets of the deceased shall be included in the inventory.” Sec. 242 directs how the administrator shall proceed to recover property belonging to the estate which is concealed, and sec. 243 makes provision for cases where the administrator conceals or has in his hands property which he has omitted to return in the inventory or list of debts% The purpose of these several sections is to require the administrator to return a full and complete inventory of all the assets of and property belonging to the estate. The title to this property is vested in the administrator, and he is required by sec. 4, in stating his account, to charge himself with the assets which have come to his hands according to the inventory or inventories returned ²⁰⁸ by him to the Orphans’ Court. He may, in a Court having jurisdiction, maintain an action of trespass or trover against one who takes the goods of the estate before he was actually in possession of them, or he may sue in replevin to recover them.

Rockwell v. Young, 60 Md. 563 ; Dempsey v. McNabb, 73 Md. 433 ; Linthicum v. Polk, 93 Md. 84 . But the Orphans’ Court is a Court of limited and not general jurisdiction, and can only exercise such jurisdiction as has been expressly conferred upon it by statute. Sec. 260 of Art. 93 expressly declares that “The Orphans’ Court shall not, under pretext of incidental power or constructive authority, exercise any jurisdiction not expressly conferred by law,” and it has been repeatedly held that the Orphans’ Court has net jurisdiction to determine questions of title to personal property, except, under sec. 243, where a person interested in the estate charges the administrator with concealing or having in his hands property belonging to the estate which he has omitted to return in the inventory. Taylor v. Bruscup, 27