Lowe v. Lowe

Eccleston, J., delivered the opinion of this court. By the will of Lloyd M. Lowe, the appellant, John F. M. Lowe, and his sister, Sophia A. Lowe, were appointed executors. In a second codicil to the will, the testator revoked the appointment of' the appellant and constituted John H. Lowe and the said Sophia A. Lowe executors. In consequence of a caveat to the will and codicil, letters pendente lite were granted to John H. and Sophia A. Lowe.

After a decision in favor of admitting the will and codicil to probat, John H. Lowe declined acting as executor, and letters testamentary were granted to Sophia A. Lowe, on the 15th of August 1851. On the 16th of May 1851, the appellant filed in the orphans court a petition, alleging, that under the will of his father, (Lloyd M. Lowe,) and the codicil thereto, he was entitled to have then delivered over to him certain real estate and sundry articles of personal property, and praying that the court would issue a summons for the executrix, commanding her to appear and answer the premises; and that they would pass an order requiring her to deliver to him the real estate, together with all the negroes mentioned in the petition, with their increase; also, all the horses, cattle, sheep and hogs left by the deceased to the petitioner, with their increase, or account with him for ³⁵¹ the full value thereof; and also, to account to him for all the plantation utensils and books of which the deceased died possessed; and to account with the petitioner for the rents and profits of the real estate, the hire of the negroes and the use of the stock from the death of the deceased; and to grant him such other and further relief in the premises as his case might require. Copies of the will and the last codicil were filed as parts of the petition. The executrix was summoned, but there does not appear to have been any answer filed or any testimony taken under the petition.

The proceedings which took place in the court, as presented in the record, appear in a summary statement of them made by the register of wills. According to which statement, on the 18th of July 1854, the administrators pendente lüe exhibited for passage their first and final account on the estate, in which they charged themselves with the inventory and various receipts, amounting in the whole to $9832.60, and craved allowance for payments and disbursements, amounting to $2295.50. And on the same day the executrix exhibited and presented for passage her first and final account on said estate, charging herself with the inventory returned by her as executrix, together with various receipts, amounting to the sum of $8905.35^, and craving an allowance for payments and disbursements to the amount of $2629.66-|. On the 30th of June 1854, prior to the passage of these accounts, the present appellant filed a petition objecting to the allowances claimed and insisting upon full proof of the same.

And the record states, that “on the 1st day of September 1854, upon a full hearing and argument, the said court allowed a portion of the allowances claimed and rejected the residue for want of full proof, and because a part thereof were not proper charges against said estate.” The record also states, that “on the 19th day of September 1854, the said administrators pendente lite and the said executrix came into court and petitioned the court to pass an older authorising them respectively to sell a portion of said personal estate for the purpose, as they stated. ³⁵² of paying debts, whereupon the court, after full argument, refused to order the said executor to deliver to the said John F. M. Lowe the personal property devised to him by the aforesaid will and codicil of the said Lloyd M. Lowe, as prayed in said petition, and upon application of said executrix, passed the following order, from which refusal and order the said John XL M. Lowe prayed an appeal to the Court of Appeals of Maryland, which was granted by the court.” And then the order referred to is given as follows: “Ordered by the orphans court of Prince Georges county, that Sophia A. Lowe, executrix of Lloyd M. Lowe, be and she is hereby authorised and directed to sell as much of the personal estate of her said testator as may be sufficient for the payment of all outstanding debts, claims and commissions that may be due from the said estate; provided, however, that in making said sale she shall first resort to the sale of any personal property which may not he specifically devised by the will and codicil of said testator, (if there be any such property,) and if not, then to the general personal property, or so much thereof as may be necessary therefor, whether the same be specifically bequeathed or not. She shall give three weeks notice of the time and place of sale, (which shall be on the premises,) by advertisement in some newspaper published in Prince Georges county, and the sale shall be for cash or on a credit of six months, at the discretion of said executrix; in the latter event, bonds, with security to be approved by her, to be required of the purchasers. Thus, it appears, this appeal is upon the refusal of the court to order the executrix to deliver to the appellant the personal properly claimed by him under the will and codicil of his father, and also upon (he order passed at the instance of the executrix authorising her to make a sale. The jurisdiction of the orphans court is not general but limited. 6 H. & J., 79 . 2 H. & G., 126 . 2 Md. Ch.

Dec., 452. And the 20th sec. of the 15th sub-ch. of the act of 1798, ch. 101-, provides, that “the said orphans court shall not, under pretext of incidental power or constructive authority, exercise ³⁵³ any jurisdiction whatever not expressly given by this act or some other law.” In our testamentary system, we find no provision expressly declaring that the court may direct an executor to deliver a .legacy, except the 7th and 8th sections of the 10th sub-ch. of the act of 1798, ch. 101. The 7th section relates only to distributive shares and to money legacies, and therefore does not embrace this case. The 8th section is in reference to specific legacies, but to obtain relief under it, the party apply? ing must file his petition and satisfy the court that he is really in want of subsistence or greatly straitened in circumstances.

In addition to which, the court must be satisfied that the assetts, exclusive of all specific legacies, will not nearly be exhausted by debts, and then they may direct the executor or administrator to deliver the legacy or bequest, but the party will be required to give bond with security for returning the same, or an equivalent, with interest, whenever so directed by the court. There is nothing in this case which will permit us to suppose for a moment that the appellant made his application under this section, as there is no proof whatever of his being in the circumstances required by the section. If, however, it should be admitted, that under the 12lh sec, of the 15th sub-ch. the'court rnay order executors to deliver legacies in other cases than those provided fur in the 7th and 8th sections which have been referred to, still it is necessary to ascertain at what time or under what circumstances such an order may be passed. To ascertain this, we must- examine not only those provisions which relate to the power of the court-particularly, but also to those which prescribe the duties and regulate the rights of executors.

The 10th sub-ch. regulates the manner in which the executor or administrator shall account. The 3rd section provides, that, if the first account shall not show the estate to be fully administered, another account shall be returned within six months thereafter, and within every succeeding term of six months an account shall be returned, until the estate shall appear to be fully settled. ³⁵⁴ Under the 6th section, “when it shall appear by the first or other account of an executor or administrator with the will annexed, that all the claims against, or debts of the deceased which have been known by or notified to the executor or administrator have been discharged, or retained for or settled, it shall be his duty to deliver up the estate in his hands to those entitled.” The 10th section makes very similar provisions in regard to an administrator of an intestate’s estate. The 11th sub-ch. commences by declaring, that “when all the debts of an intestate, exhibited and proved or notified and not barred, shall have been discharged, or settled and allowed to be retained as herein directed, the administrator shall proceed to make distribution of the surplus.” And by the 16th sec. of the 11th sub-ch., “in case the surplus remaining in the administrator’s hands after payment of all just debts exhibited and proved, or notified and not barred, or after retaining for the same, shall consist of specific property;” if the, administrator cannot satisfy the parties entitled to the property, he may apply to the court to make distribution. See what is said in 4 Md. Ch.

Dec., 449 to 451, Conner vs. Ogle, in regard to the duty of an executor or administrator to make distribution, and the authority of the court on that subject. The sections which have been referred to, we think, indicate very clearly that the law requires, first, a full or final account of the administration, so far as regards the debts due from the estate, before legacies are to be paid or distribution made. And as the orphans courts derive their power chiefly from the act of 1798 and possess but limited powers, they can have no authority to act except strictly in accordance with the spirit and design of that law. Consequently, we think, they have no power to order an executor or administrator to pay legacies or to make distribution until a final account in regard to debts has been passed.

And this view of the