Sappington v. Scott

Eccleston, J., delivered the opinion of this court. Prom the record before us it appears that, on the 5th of December 1857, John K. Sappington, as administrator of Wm. Sappington, deceased, exhibited.and filed in the office of Register of Wills for Harford county, the first administration account on the estate of the deceased. “'Charlton W. Billingslea, claiming to be and acting as the Register of Wills, made and passed, and endorsed, upon the said account, the following order: December 5th, 1857.—This account examined and passed. Test:—C. W. Billingslea, R. W. H. Co.” Mary Scott of Kentucky, the appellee, as one of the sisters and distributees of the intestate, filed her petition, stating that the appellant obtained his letters of administration, on the 24th of December 1849, and until very recently had rendered no account of his administration.

That in October 1857, having understood he intended to claim many large credits and allowances against the estate, which she had reason to believe were not proper to be allowed; she employed counsel to investigate his accounts and to resist the passage or allowance of any account of the administrator against the said estate, until the same should be thoroughly investigated and adjudged correct, after her objections should be heard. That her counsel, as she was informed, gave notice of their employment and instructions, to C. W. Billingslea, who was then acting as register, and relied upon his promise to give them a full and fair opportunity to examine and oppose the passage of any account, which might be presented by said administrator or his counsel, before the same should be acted upon. But by some misunderstanding or neglect of Billingslea no such opportunity was given. And on the 5th of December 1857, the administrator ⁵⁰ deposited in the register’s office an account purporting to be his first administration account, claiming credits for many large sums of money, amounting in the aggregate to $24,761.77.

The petition also states that, on the-same day, said Billingslea, professing to act as Register of Wills, endorsed that said account had been examined and passed; without any notice ter the petitioner or her counsel, or knowledge on their part that the account had been rendered, it is alleged that neither the account nor the items thereof had been examined and passed by the orphans court, or by any one having competent authority to adjudicate thereon. The petitioner avers, and refers to the records and minutes of the court to show, that it was not in session on the said 5th of December, and had not been between that day and the 7th of October preceding. She likewise avers, and states her readiness to maintain and prove, the account to be erroneous; that many of the items thereof were not supported by sufficient proof, that others are unjust and improper to be allowed, and liable to valid and sufficient objections, which she offered to prove if allowed to do so. The prayer of the petition is, that “the said order and all the orders in relation thereto, or to the claims signed by said' Billingslea, and purporting to have been passed on the fifth day of December, eighteen hundred and fifty-seven, or on any other day between that and the fourth day of November next preceding, should be annulled;” and that such further relief in the premises should be granted as might seem just and proper.

This petition was addressed to “the orphans court of Harford county,” was.filed in the office of the Register of Wilis for that county, during the recess of the court, and thereupon the register passed the following order. “Ordered, by B. H. Hanson, Register of Wills for Harford county, in the recess of the orphans court, this twenty-fourth day of December, eighteen hundred and fifty-seven, that the within petition stand for hearing on the twenty-ninth (instant) and that John K. Sappington, administrator of William Sappington, how cause on the day last named, why the prayer of said petition should not be granted. B. H. Hanson, R. W. H. Co.” ⁵¹ On the day appointed for the hearing, the sheriff returned that he had served a copy of the petition and order on the administrator, John K. Sappington, by leaving the same at his residence, on the 28th of December 1857. The petitioner appeared on the 29th, but Sappington did not, and the hearing was postponed till the next day, when it was again postponed until the day after, and then Hanson, the register, passed an order in the recess of the orphans court, first reciting that the petition and the order thereon, of the 24th of December, had been duly served upon Sappington, the administrator, that no cause to the contrary had been shown; and then rescinding “the order, bearing date the 5th of December 1857, signed by C. W. Billingslea, as Register of Wills,” and all other orders passed or purporting to have been passed by him in relation to the estate of the deceased, and the accounts, against the same, after the 4th of November 1857. On the 12th of January 1858, Sappington appeared before Hanson, the register, protesting that ho had no authority to pass either the order of the24th or that of the 31st of December, that they were illegal and without due notice to him, (Sappington,) and therefore he appealed.

By agreement the record has been amended, so as to include the admission, that Charlton W. Billingslea was duly elected Register of Wills for Harford county, on the fiivst Wednesday of November 1851, and was thereupon duly commissioned and qualified: that a new election of Register of Wills for Harford county was held, on the first Wednesday of Novvember 1857, when Benedict H. Hanson was duly elected to said office. That, his commission (a copy of which is annexed) was issued on the 20th day of November 1857, and that he was qualified and entered upon the execution of the duties of his office on the 7th day of December in the same year. The Act of 1849, ch. 14, which relates to Harford county, only, in its 3rd section provides, “That the Register of Wills of said county, during the recess of the orphans court, shall have full power and jurisdiction to do all matters and things whatsoever, which the said orphans court could do at its re ⁵² guiar sessions, and that there shall be the same right of appeal from any order, decision, or judgment of said register, as may now be had, by law, from the orders, decisions or judgments of the said orphans court.” The Act also creates six terms for the orphans court, which are made to begin and to be held on the first Monday in the months of February, April, June, August, October and December, respectively; “to which terms all process shall be made returnable.” Two questions have been presented by the arguments of counsel: 1st. Was or was not C. W. Billingslea, Register of Wills, on the 5th of December 1857?

B. JEL Hanson having been elected as register, on the first Wednesday of November preceding, having received his commission, as such, on the 20th of the same month, and not having qualified and entered upon the duties of the office until the 7th of December 1857. 2nd. Was the order passed by R. H. Hanson, as register, on the 31st of December 1857, erroneous? The first question calls for an interpretation of that portion of the 18th section of the 4th Article of the Constitution, which provides that, “There shall be a Register of Wills in each county, who shall hold his office for six years from the time of his election, and until a new election shall take place.” This language, the appellee’s counsel say, must be construed according to its natural and ordinary meaning, and if so the office of Billingslea, as register, terminated on the first Wednesday in November 1857, the day on which Hanson, his successor was elected. The theory of the appellant’s counsel is, that Billingslea did not cease to be register on the election day, but continued in office' until his successor was not only elected but had duly qualified.

It is very certain that the latter could not enter upon the duties of the office until he had been regularly qualified. Thomas vs. Owens, 4 Md. Rep., 220 . It is therefore manifest that, at the end of every six years, there must be some time during which there will be no register of wills, if the appellee’s theory is correct. The 14th section of the same article in reference to clerks, makes the ⁵³ tenure of office six years from the time of election, “'and until a new election is held.” This language is so very similar to that in regard to registers of wills, as to render it difficult to perceive why the same construction should not apply in each case; and, if we are to look to the language alone, that would seem to justify the interpretation insisted upon by the appellee.

But such a construction, in reference to clerks, would make it impossible that other most important provisions of the Constitution could be carried into effect; the consequence of which would be to stop the wheels of government. The 29th section of the 4th article requires that the election returns, of nearly all the officers, shall be certified by the clerks. This duty, if performed at all, must, necessarily, be done by those who were clerks on the day of election, as it cannot be ascertained who are to be their successors in office, until by the certified returns, it appears who are elected. The appellee’s doctrine would not only leave the State occasionally, for some time, without clerks and registers, but also without other important officers, whenever new elections of them are to be