Hignutt v. Cranor

Miller, J., delivered the opinion of the Court. It appears from this record that William P. Butler, of Caroline County, died on the 1st of July, 1883, intestate, ²¹⁸ leaving a widow, Margaret D. Butler, and several heirs-at-law or next of kin. On the 17 th of July, 1883, letters of administration on his personal estate were granted to Elijah Hignutt, and on the 3rd of January, 1884, three of the heirs-at-law filed a petition in the Orphans’ Court, in which they charge that the “administrator in his inventory of cash on hand has failed to charge himself with two thousand dollars in money, of which the said William P. Butler died possessed, and which is retained or concealed hy Margaret D. Butler, widow of the deceased.” The petition then prays that the administrator shall charge himself with the aforesaid two thousand dollars, and that both he and the widow may he summoned to appear and answer the premises under oath. Each of the parties appeared, and each filed what is, in form, a demurrer, alleging 'that he is advised he is not required hy law to answer the petition under oath or otherwise.

But as common law pleading has never been introduced or found applicable in the Orphans' Courts, and therefore a demurrer technically considered has no place there (Munnickhuysen, et al. vs. Magraw, 57 Md., 193 ,) what is here in form a demurrer must he regarded and treated as an answer, or an objection to the jurisdiction of the Court, or, perhaps more properly, as an exception to the' sufficiency of the averments of the petition to make out a case against him under any provision of the testamentary law. The Orphans’ Court, after having heard arguments of counsel on both sides, passed an order on the 11th of March, 1884, sustaining the objections taken hy the widow and dismissed the petition as to her, hut overruled that taken hy the administrator, and required him to answer the petition on or before the 25th of March, 1884, and from that order, the administrator has taken an appeal to this Court. Looking to the allegations of the petition and the relief prayed for, it seems to us that the only provision in the ²¹⁹ testamentary law upon which such a proceeding against an administrator can be founded, is that contained in section 239, of Article 93, of the Code. By the preceding section 238, it is provided that “ if an administrator shall believe that any person conceals any part of his decedent’s estate, he may file a petition in the Orphans’ Court of the county in which he obtained administration, alleging such concealment, and the Court shall compel an answer thereto on oath,” &c., and by section 239, the provisions of the preceding section “ are extended to all cases where any person interested in any decedent’s estate, shall by bill or petition allege that the administrator has concealed, or has in his hands and has omitted to return in the inventory or list of debts, any part of his decedent’s assets,” &c.

Now it appears to us that it was the intention of the draughtsman of this petition, as well as of the petitioners themselves, to make a case against the administrator under that section; and we are of opinion it must be regarded and treated as a proceeding thereunder. That being so, an appeal is provided by section 240, to the Circuit Court of the county or the Superior Court of Baltimore City. And the appeal thus provided applies to all and every proceeding instituted under either of the two preceding