In re the Estate of Stratton

Brent, J., delivered the opinion of the Court. In the inventory which was returned in this case on the 19th of October 1875, among other things returned, “ thirteen one thousand dollar Logansport, Crawfordsville and Southwestern Railway Company (State of Indiana) first mortgage eight per cent, gold loan bonds of 1870,” are set down as being “ returned by us, (the appraisers) at their face value, we having no means of ascertaining their market value.” Including these bonds at their face values of $13,000, the inventory amounts to the sum of $26,052.07. The -first account of the administrators is passed on the 5th of July, 1876, and in it they are allowed by the Orphans’ Court ten per cent, commission on the whole of this amount. On the 26th of November, 1876, a second administration account is passed showing a balance of $23,191.68 in their hands due the estate.

On the 19th ⁵⁵³ December following, the Orphans’ Court passed an order modifying the sum upon which the commission is allowed in the first account, and deducting therefrom as the basis of commission the thirteen one thousand dollar bonds above referred to. In the same order they direct another warrant to issue for the appraisement of these bonds, and reserve the right of adjusting upon the passage of a final account, the amount of commissions to be allowed the administrators upon them. From this order the administrators have taken this appeal. We do not see that the Orphans’ Court was in error in passing this order, or that it is in any way inconsistent with the authorities cited by the appellants.

It is manifest from the terms in which these bonds are mentioned in the inventory, that it was not the purpose or intention of the appraisers to affix to them any certain value. They have in fact not been appraised, and cannot be considered as they stand returned in the inventory, as forming any such part of it as required the Orphans’ Court to allow a commission upon them under the 5th section of Art. 93 of the Code. The Court was therefore justified in directing, by their order of the 19th of December, a warrant to issue for their appraisement. The allowance of commission upon them at their par value in the first administration account, is manifestly an error, and this could be corrected by the Court whilst the administration was open and pending before them.

The argument that it is the exercise of a constructive power, which the Orphans’ Court is prohibited by statute from exercising, is disposed of by the decisions of this Court. In the case of Montgomery & Spencer, Ex’ cs vs. Williamson, 37 Md., 429 , it is said “ this objection is fully answered by the Court of Appeals in the