Gibson v. Cook

Irving, J., delivered the opinion of the Court. The appellee, Erederic C. Cook, as administrator of James Dooner, filed his petition in the Orphans’ Court of Baltimore City, alleging that his intestate in his life-time “opened two accounts in Bank in the names of James Dooner and Edward Gibson, and the survivor of them, subject to the order of either — one in the Savings Bank of Baltimore, and one in the Eutaw Savings Bank.” The petition alleges that from time to time he deposited to the credit of the said account in the Savings Bank of Baltimore $4,674.40, and in the Eutaw Savings Bank $1,814.67. The petition alleges that Dooner in his life-time had absolute possession of the books, and placed them in the hands of the Rev. Edward A. McGurk, President of Loyola College, for safe-keeping; and ‘‘that since the death of said Dooner, said Edward Gibson has obtained possession of said bank books from the Rev. Edward A. McGurk, in whose custody they were at the time of Dooner’s death, by producing proof to said Rev. Edward A. McGurk, of his (said Gibson’s) identity, and also by representing himself to be cousin of said Dooner, which petitioner avers is not the fact. That since he, said Gibson, has obtained possession of said bank books, he has applied for and received from said Banks the moneys ²⁵⁸ therein deposited by said Dooner in his life-time, and has taken the same into his, the said Gibson’s exclusive control and custody.” The petition then charges that although requested, he refuses to deliver up said money or inform the petitioner where the same is; and is therefore concealing the same.

The petition prays for answer under oath, and for order to deliver up to the petitioner as administrator of James Dooner. This petition was framed under the provisions ofthe 238th section of Article 93 ofthe Code of Public General Laws. The Court accordingly, in pursuance of the provision of that statute, issued the citation for Gibson, and he appeared and filed an answer under oath, admitting that the petitioner was the administrator of James Dooner; and admitting the deposits in Bank by Dooner in his life-time in his own name and the name of the respondent, but denying that he had sole possession of the said books. He admits he obtained the books from Rev. Edward A. McGurk upon the representations averred, and that he has received certain moneys from the Banks which he has refused to surrender to the petitioner, but denies that it is the money of the estate of James Dooner and that petitioner is entitled to receive it.

He denies he is concealing any part of the estate of James Dooner. By amended or supplemental answer, he states the precise sums he received from the Banks as charged in the petition, and places his refusal to surrender on the ground that the same is his own, and denies the right of the administrator to receive the same, and denies the jurisdiction of the Orphans’ Court to decide as to their respective rights. The Orphans’ Court heard the cause upon testimony and then passed the following order: “ After a careful examination of this case, the Court is of the opinion that they have no jurisdiction in the matter, and therefore dismiss the petition with costs.” Erom this order the petitioner ²⁵⁹ appealed to the Superior Court of Baltimore City under section 240 of Art. 93 of the Code. The Superior Court proceeded to hear and decide the cause, reversing the order of the Orphans’ Court.

From this action of the Superior Court appeal has been taken to this Court. The appellee has moved to dismiss this appeal upon the ground that the decision of the Superior Court of Baltimore City upon that appeal was final, and relies on Lammott vs. Maulsby, 8 Md., 5 , and other like decisions in support of his motion. This position would be impregnable if the Superior Court itself had jurisdiction of the subject-matter as it was presented. The Orphans’ Court, upon consideration of the petition, answers and proofs, dismissed the petition on the ground that it had no jurisdiction.

The answer admitted the possession of the money claimed by the administrator, but denied that respondent was concealing it, and claimed it as his own property, and contested the petitioner’s right to it as administrator of James D'ooner. The very foundation of the jurisdiction of the Orphans’ Court was by that Court adjudged to be wanting. If there was no concealment, there was no issue for the Orphans’ Court to try, or question on which that Court could •send an issue to another tribunal for a jury to try. The only issue which they could frame under that section of the Code, in that case was, “ does the respondent conceal any property or money of James Dooner ?” The pleadings raise an issue of title not of concealment.

The answer admits the possession of the money as charged in the petition, but couples that admission with the most unequivocal assertion of right to take it, because of title to it. The Orphans’ Court may properly decide that under such state of facts, that Court had no jurisdiction, because it could not decide a question oí title. Whether the title was in Dooner’s administrator or in Gribson, could only be settled by another tribunal. That question could be raised by an action at law on the part of the Adm’r of Dooner ²⁶⁰ vs. Gibson for money had and received to the use of the-estate; or possibly, it may have been cognizable by a.

Court of equity (which, however,