Macgill v. McEvoy

McSherry, C. J., delivered the opinion of the Court. In October, eighteen hundred and ninety, George B. Graham died intestate, possessed of a large estate and leaving a widow and one child — a daughter of about three years of age — surviving him. Beginning with the year eighteen hundred and eighty-two and up to the time of his death he conducted the storage business, and James McEvoy was his confidential, clerk and agent. The storage business was then a new but thriving enterprise.

In the outset it was carried on in a large warehouse — the old Wood, Weeks and Company’s sugar refinery — and proved to be quite successful ; and shortly before his death Mr. Graham erected and partially completed' another large structure on the corner of Park and Dolphin streets, in Baltimore, with a view of extending and increasing the storage business. This building was not entirely finished when Mr. Graham died. Both of these warehouses were leasehold property and belonged to Mr. Graham. His widow renounced her right to administer on his estate and recommended Mr. McEvoy as administrator ; and the latter was also at her instance appointed guardian of the estate, but not of the person of her infant daughter, by the Orphans’ Court of Baltimore City.

In eighteen hundred and ninety-four Mrs. Graham, the widow, married Carroll S. Macgill, and in eighteen hundred and ninety-six she, by her husband as next friend, filed a petition in the Orphans’ Court praying for the removal of Mr. McEvoy as guardian. To this petition an answer was filed and quite a volume of evidence was taken. After a hearing the Orphans’ Court refused to remove the guardian and dismissed the petition seeking his displacement, and from that order of dismissal the pending appeal was taken. A motion has been made to dismiss the appeal upon the ground that as the order from which the appeal was taken was one that was passed by the Orphans’ Court in the exercise of a discretion given to it by the statutes of Maryland, no appeal ²⁸⁹ will lie; because — such is the contention — no appeal will lie from any adjudication upon a subject confided exclusively to the discretion of an inferior tribunal.

As this motion meets us at the threshold of the case it will be considered and disposed of at once. The precise question raised on this motion is this: Can a party who has filed a petition in the Orphans’ Court under section 232 of Article 93 of the Code for the removal of a guardian appeal from an order refusing to remove the guardian and dismissing the petition ? As thus presented the question is one of first impression — it has not heretofore arisen in this Court. That part of the section j ust alluded to that bears on the motion to dismiss is in these words : “The Court may, on the application of any infant or anyone in his behalf, suggesting improper conduct in any guardian whatever, * * * inquire into the same, and at its discretion remove such guardian and make choice of another, &c.” It is insisted that as the section places the power of removal at the discretion of the Orphans’ Court no appeal lies from any exercise of that discretion.

Of course, the contention to be tenable at all must go the entire length and maintain that no appeal lies whichever way the discretion may be exercised. If the subject-matter is in fact exclusively committed to the discretion of the Orphans’ Court, then, incontestibly, no appeal would lie from an order removing the guardian, if no appeal could be prosecuted from an order refusing to remove him. And if an appeal does lie from an order removing a guardian under this section of the Code, then the appeal must lie only because the section does not give to the Orphans’ Courts such a discretion as cannot be reviewed. If the power is strictly discretionary then the discretion is co-extensive with the power itself, and consequently no exercise of that power could ever be reviewed on appeal.

But it has been distinctly and explicitly held in Slattery v. Smiley, 25 Md. 394 , that an order passed under this very section removing a guardian was open to review on appeal — the ²⁹⁰ appeal was entertained and the order removing the guardian was reversed, because there were no facts alleged or shown which justified the removal. But if the power to remove had been lodged solely with the inferior Court the mere failure to make appropriate averments or to sustain them by evidence would have been no reason whatever for a reversal of the order directing the guardian’s removal if the section of the Code now under consideration gave to the Orphans’ Court such a discretion as could not be reviewed in any event. Now, the power to grant a new trial is in the discretion of the trial Court, but no matter how erroneous a refusal to award a new trial may be, the decision denying it can never be reviewed on appeal; and this, too, even though it affirmatively and conclusively appears by the record that the party who succeeded in recovering a verdict was manifestly and obviously not entitled to prevail. There can be no pretence that the Orphans’ Courts have in such instances as are now before us any such discretion as this.

Under section 241 of Art. 93 of the Code, whereby the Orphans’ Courts are empowered “ in their discretion" to revoke letters of administration, it has been held, notwithstanding the seeming discretion entrusted to them, that an appeal will lie by an administrator whose letters have been revoked; Forney v. Shriver, 60 Md. 419 , though in cases arising under section 237 of the same Article (which is a transcript of the Act of 1831, ch. 3x5, sec. 4), it has been decided that an appeal would not lie. Porter v. Timanus, 12 Md. 292 . Section 237 provides that the Orphans’ Court shall be “ Empowered in their discretion and whenever to them it shall seem proper, either ex-officio or upon application ” to remove an executor or administrator for failing to bring money into Court for investment when ordered to do so. It was intimated at the argument that if no appeal could be entertained in this latter class of cases there was no reason why one should be permitted in the one at bar.

But it is very apparent, it seems to us, there is a broad and well-defined difference between the provisions of sec. 237 and ²⁹¹ those of sections 241 and 232. By sec. 237 there is no doubt that a clear, unequivocal discretion, in its widest sense, is conferred upon the Orphans’ Court. The language is explicit and free from ambiguity. Those Courts are by that section empowered to remove an administrator for refusing to bring money into Court, not only in their discretion — the terms employed in sec. 232 — but “whenever to them it shall seem proper.” The broad power is committed without qualification “ to them ” — the Orphans’ Courts — to be exerted whenever they shall think proper to use it; and from their decision in such cases obviously no appeal can be prosecuted.

But the discretion conferred by sections 232 and 241 is a sound, legal discretion to be used conform-ably to the settled rules of law — to be exercised if the facts warrant it, to be withheld if they do not — and if erroneously exerted in either direction the determination is subject to review on appeal. The sweeping and comprehensive terms of section 58, Art. 5 of the Code, give a right of appeal from the Orphans’ Courts in these words : “ From all decrees, orders, decisions and judgments made by the Orphans’ Courts the party who may deem himself aggrieved by such decree, order, decision or judgment, may appeal to the Court of Appeals.” Unless the right of appeal thus broadly conferred upon litigants is restricted, narrowed or taken away by some particular contrary provision, either expressly denying an appeal, or impliedly prohibiting it by giving an irreviewable discretion to the lower Court, the right to appeal must be held to exist. If the discretion conferred by sec. 232 is of such a limited character that it will not prevent an appeal from an order removing a guardian, it is difficult to see how, logically, an appeal from an order refusing to remove a guardian could be denied. It is not the manner in which a discretion has been exercised that determines whether an appeal will lie — that is, it is immaterial whether the decision complained of has been affirmative or negative action — the question as to whether an appeal will lie at all in such cases depends altogether upon whether an ²⁹² exclusive discretion over the subject-matter has been committed alone to the lower Court.

We find nothing in the words of sec. 232 to warrant the conclusion that the Legislature intended to clothe the Orphans’ Courts with a broad irreviewable power to remove or to refuse to remove a guardian, just as whim or caprice might dictate; and we consequently hold that their decisions under this section of the Code are open to examination on appeal. We are not to be understood, however, as qualifying in any way any ruling of this Court denying the right of appeal from the Orphans’ Court in other and different instances. The motion to dismiss this appeal is overruled. We now come to the merits of the controversy.

The petition for the removal of Mr. McEvoy, after making reférence to and setting forth some of the balances shown by several of the guardianship accounts settled by him, proceeds to allege the grounds upon and on account of which the removal is sought; and these are five in number, and may be briefly summarized as follows : First, that though the infant was possessed of a large and lucrative estate, the income has, under the management of Mr. McEvoy, suddenly, and without any natural cause, decreased, while with proper and judicious management it should have largely increased. Secondly, that the income has been largely consumed by extraordinary charges and wasteful extravagance. Thirdly, that the guardian has not been’ able for a long time, either mentally or physically, to perform his duties as guardian by reason of nervous prostration, which necessitated his absence, so that he neglected the .storage warehouses to the detriment of that business. Fourthly, that he has allowed the taxes to accumulate and Fas refused to see and converse with the petitioner, unless in the presence of his counsel; and fifthly, that it will be .ruinous to the estate of his ward if he is not promptly removed.

The first, second and fifth of these averments are .explicitly and emphatically denied in the guardian’s answer. In- reply to the third charge he admits that the past condi ²⁹³ tion of his health has been bad, but he insists that it is now fully restored and that he is devoting his whole time to the management of the ward’s estate and property. He admits that taxes have accumulated, but he assigned as a reason therefor that the funds in his hands had been applied to other purposes, as shown in his accounts, and he explains how and why the business of the storage warehouses has deteriorated. The power to appoint and to remove guardians is by the Code of Maryland, as we have seen, vested in the Orphans’ Courts.

With the provisions relating to the appointment of guardians and with some particular sections prescribing specific grounds for removal we are not now concerned. The 232d sec. of Art. 93 of the Code, as amended by the Act of 1890, ch. 425, is the enactment under which the pending proceedings were inaugurated; and unless the evidence makes out a case falling within the terms of that statute there is no reason to disturb the order appealed from. The section as it now stands reads as follows : “ The Court may on the application of any infant, or any one in his behalf suggesting improper conduct in any guardian whatever, either in relation to the care and management of the property or person of the infant, or physical or mental incapacity of the guardian to properly fulfill his duties and the purposes of the office, or any other matter or thing whereby it appears that the guardian is or has become unable to bestow such direct, personal care and supervision over the person or estate of his ward as is requisite to the proper discharge of the duties of guardianship, inquire into the same, and at its discretion remove such guardian and make choice of another, who shall give security and conduct himself in the manner herein prescribed, and shall receive the property and custody of the said ward.” This section does not confer a power that can be exercised arbitrarily, or without reference to the existence of some cause supported by sufficient proof; but it gives a Court of confessedly limited jurisdiction authority, upon any ground embraced in the ²⁹⁴ scope of the statute’s language, to displace a fiduciary of its own appointment. To justify such a step some cause must exist, and if the assignéd cause be inadequate, or, being adequate be unsustained by evidence, the power of removal cannot be lawfully called into action.

As Mr. McEvoy is only guardian of the infant’s estate and not of her person, the averments of the petition and the evidence adduced were confined to alleged mismanagement of the property, and to alleged mental and physical incapacity; and the assigned causes are all ultimately resolvable to mere questions of