Scott v. Fox

Eccleston, J., delivered the opinion of this court. The appellant, E. Scott, asks for a reversal of an order passed by the orphans court of Howard county. In August 1858, Scott appeared in court and suggested that Nancy Fox, the administratrix of George Fox, late of said county, had died leaving' property belonging to .the estate of the said George Fox, not distributed among his representatives; and thereupon the court directed that the next of kin of the said George Fox, should be summoned to show cause, if any, why letters of administration de bonis non, should not be granted upon his estate. On the 16th of November following, Washington Fox, the appellee, and only son of said George, appeared and denied that there was any property belonging to the estate of his father not distributed.

It appeared in proof that George Fox died in May 1848, leaying a widow and five children; and Evan Scott married his daughter, named Elizabeth, who is still living. That letters of administration upon his estate were granted to his ³⁹² widow, Nanny Scott, who returned an inventory amounting to $2106.65, including six negroes', appraised in the aggregate, to fit llO'.OO. She also passed two administration accounts. In the first, she charged herself with the amount of the inventory, and cash on hand at the decease of the intestate, amounting to $2231.65, and claimed credit for disbursements, in payment of debts, &c., for $429.98, leaving a balance of $1801.67, due the estate.

With this balance she charged herself in the second account, and claimed credit for fees paid the Register of Wills, for her own one-third of ihe .estate, and for payments made to each of the children of the intestate, in full of their shares of the estate, except to the appellant and his wife, for whose share she claimed credit on account of the amount deposited in the Patapsco Bank to his credit. This account was passed on the 9th of September 1851, and the certificate of deposit is dated the same day; stating that “Evan Scott has credit in this bank for two hundred and thirty-nine dollars and twenty-seven cents, deposited by Mrs. Nancy Fox, ex’x, subject to the order of the said Evan Scott, and payable upon the return of this certificate No. 559.” It was also proved that a few days before the passage of the last account of the administratrix, the sum of money mentioned in the said certificate was tendered to Evan Scott by Washington Scott as agent of said administratrix, but that he refused to receive the same. It was shown, on the part of Scott, that it does not appear, from any of the records of the register’s office, that the administratrix was allowed to take the property of George Fox at the appraisement in the inventory, except in so far as the same appears in her administration accounts passed by the court. Fox, the appellee, then examined T. Jenkins, (the Registér of Wills,) who testified that on the 9lh of September 1851, in his presence, the court “allowed and sanctioned the said Nancy Fox, as administratrix, to take the personal property at the appraisement, and that the court afterwards directed that the distributive share of Evan Scott should be deposited by the administratrix in the Patapsco Bank.” And Jenkins further ³⁹³ testified that, whilst he was register, it was not customary for the court to pass special orders in writing, in regard to permitting administrators to take articles of personal property at the appraisement, or directing the mode of distribution.

To all the testimony of Jenkins, Scott objected, as being inadmissible, and the same was taken under exception. On the 16th of November 1858, the orphans court ordered and adjudged, that as it did not appear there was any property of George Pox not distributed, letters of administration de bonis non should not bo granted, and thereupon Scott appealed . During the present term, the case of Grimes & Wife vs. Talbert & Wife, et al., has been decided. (Ante., 169.) It was an appeal from the orphans court of Prince Georges county.

The record showed that a certain James JO. Barrett died intestate in 1830, leaving Lucy Barrett his widow, and several children, one of whom is the wife of the appellant, Jeremiah A.Grimes, and the widow of Barrett is now the wife of the appellee, Talbert. Some twenty-eight years after the decease of Barrett, no letters of administration having ever been granted upon his estate, Grimes and his wife filed a petition in the orphans court alleging, that at the time of Barrett’s decease* he left two negro women who have since had children, and praying the court to grant letters of administration upon the estate, and that the petitioners might have their share of the negroes. The appellees answered the petition, denying that Barrett had any personal property at his decease, and alleging that the negroes mentioned in the petition were given to his widow after his decease.

The proof given was conflicting, and the orphans court refused the letters. This court reversed the order and remanded, the cause that letters of administration might be granted. In the decision it was held, that “In an application for letters, the dying intestate and leaving personal estate must be shown; the former must be ‘proved to the satisfaction of the court;’ the latter need not be conclusively established; primee facie evidence thereof is all that is necessary. The action of the court is not dependent upon the weight of evidence.

If the-application be resisted and proof be offered to show that the ³⁹⁴ intestate left no property, it cannot avail, unless it be clear and explicit, and above all doubt. It was not designed by the statute that questions of title to personal property should be tried and determined by the orphans court in a summary proceeding upon an application for letters. Neither the organization of the court, nor their mode of proceeding, enables them satisfactorily to pass upon such a question.” In support of this application for letters de bonis non, it is alleged, that at the death of the administratrix, there were unadministered assets belonging to the estate of her intestate. This is denied on the part of the appellee.

He insists that the administration accounts and the deposit made in the Patapsco Bank, show the estate to have been fully administered and distributed. The inventory, however, discloses that the estate consisted in part of six negroes, appraised at $1110; and there is no proof whatever that they, or any of them, were ever sold under an order of the orphans court, or without such an order, either for the purpose of paying debts, or for distribution; and they were not specifically distributed. With a view of avoiding any advantage which the appellant could claim, on account of the absence of such proof, the appellee offered the parol evidence of the register of wills, which has already been stated. Now, without stopping to inquire whether the appellant’s counsel are right in contending that the orphans court had no power to pass an order allowing the administratrix to take the property at the appraisement, there can be no doubt that a mere verbal order or authority, for such a purpose, can have no more effect than if it had never been given.

In the case of Carlysle vs. Carlysle, 10 Md. Rep., 440 , part of a sum of money belonging to a ward, which his guardian had lent, on a mortgage, was lost. The guardian petitioned the orphans court to allow him a credit, in his account, for the portion of the loan which he could not collect. The application was resisted on the part of the ward; and the orphans court ordered the guardian to be charged with the loss; from which order he appealed. The petition alleged that the loan had been authorized by ³⁹⁵ the orphans court; and parol evidence was offered to show that the court, verbally, gave authority to make if..

This evidence was excepted to, as being inadmissible for the purpose for which it was offered; and the appellee contended there was no legitimate proof that the court