Gunther v. State ex rel. Bouldin

Miller, J., delivered the opinion of the Court. The Orphans’ Courts of the State have unquestioned jurisdiction to appoint guardians to minors, and when they have in any instance exercised this power, and the guardian has given bond, it does not lie in his mouth or in the. mouths of his sureties to deny that he is guardian, or to aver the ward had no property subject to guardianship, even if the having of. property be essential to the validity of the appointment. Fridge vs. The State, use of Kish, 3 G. & J., 114 , is conclusive authority for this proposition. To this extent the sureties are clearly bound by the recital in the bond.

But the appellants assert the further proposition that as sureties they are not responsible for any property their principal may have received as ²⁹ guardian without competent legal authority, and to which the w'ard had no title or claim during his minority. To the position thus broadly stated no valid objection can be made, for it is a principle too well settled to admit of question that the liability of a surety cannot be extended beyond the terms of the engagement into which he has entered. As against him the contract cannot be carried beyond its strict letter; it cannot be extended by equitable construction or implication. Chase vs. McDonald & Ridgely, 7 H. & J., 193 ; Strawbridge vs. Balt. & Ohio R. R. Co., 14 Md., 366 .

This presents the inquiry, was the money for which the appellants deny their responsibility lawfully placed in the hands of their principal? And this depends upon the further question, had the Orphans’ Court jurisdiction and authority to pass the order of the 4th of February, 1867, empowering the administrator c. t. a. to transfer to the guardian of the legatee the legacy of $2,000 bequeathed by Watchman’s will to his adopted son, in case he attained the age of twenty-one years? By the terms of the will the legacy was clearly contingent, and to be paid to the legatee only in the event of his attaining majority. It was a case, therefore, in which the duty of the administrator and the authority of the Court are pointed out and prescribed by the 10th section of the 93d Article of the Code, which provides that: “ Whenever, under the provisions of a will, it shall be necessary for an executor or administrator cum testamento annexo to retain in his hands the personal estate, or any part thereof, or where money or some other thing is directed to be paid at a distant period or upon a contingency, atiy Court of Equity in the city or county, or the Orphans’ Court, shall have the power, on the application of such executor or administrator, or of a party interested, to decree or give directions thereto; and it shall be the duty of such executor or administrator to apply to the said ³⁰ Court of Equity or the Orphans’ Court, and the said Courts respectively shall have full power to decree or direct what part of the personal estate shall be retained or appropriated for the purpose, and in what manner it shall he disposed of and the legacy or benefit intended by the will shall be secured to the person to be entitled at a future period or contingency, and how the necessary part of the personal estate to be appropriated for the purpose shall be prevented from lying dead or being unproductive, and how it shall be applied agreeably to the intent of the will or the construction of law in case the contingency shall not take place.” No case has been cited in which this section or the corresponding provision in the Testamentary Act of 1798, has been construed, and we are aware of no instance where it has been directly brought before the Appellate Court for full construction.

It was simply referred to in Rieman vs. Peters, 2 Md., 104 , as protecting a clause in a will, which directed executors to keep the estate together until after the death of the widow, for the purpose of paying her an annual allowance, from the objection that it contravened the provisions of our Testamentary Law. It is obvious the main design of the section, and the object to be attained by the exercise in every case of the power thus conferred, is the preservation of the fund so as to secure it to those who, under the will, or by law, shall be entitled to receive it upon the arrival of the prescribed period, or the happening or nonhappening of the designated contingencies. To this end, it is made the duty of the executor or administrator having the money or property in hand, to apply to the Court for direction in the premises, and on such application the Court is clothed with “full power to decree or direct in what manner it shall he disposed of ” to effect the contemplated purpose; but the mode of disposition for safe keeping and security is not ³¹ prescribed, but left, in each ease, to the sound discretion and judgment of the Court. In view of this comprehensive language and the ample authority given without designation of any particular mode or manner of investing, securing, or safe keeping, we cannot perceive why, in a case like the present, where a legacy is given to an infant, but which he is