Sifford v. Morrison

Yellott, J., delivered the opinion of the Court. This is an appeal from an order of the Orphans’ Court of Frederick County requiring the appellant, the surviving executor of John Sifford, deceased, to give counter-security. The death of the said John Sifford occurred in the year 1818; he having made and executed a last will and testament which was duly admitted to probate. Letters testamentary were granted to John Loats and John E. Sifford, the appellant, who, on the 18th day of November, 1818, filed in the Orphans’ Court their bond, as executors of said will, with the appellees as securities.

Not long afterwards the said John Loats died, and the appellant is now the surviving executor of the last will and testament of John Sifford, and the appellees are liable under the obligations of his bond. The appellees, apparently dissatisfied with the manner in which the appellant was discharging his duties as surviving executor, invoked the interposition of the Orphans’ Court by the passage of an order requiring him to show-cause why his account should not be restated; and on the-21th day of March, 1884, in pursuance of their remedy-accorded by statutory provisions, the said appellees, by petition, asked the Orphans’ Court for an order for counter-security. In conformity with the tenor of this petition,. ¹⁶ which, was supported by affidavit, an order nisi was passed; which on the application of the appellant was supplemented by a subsequent order granting an extension of the time within which to show cause why the relief sought for should not he obtained by the final action of the Court. In obedience to the exigency of this order the appellant filed an answer to the petition of the appellees.

The Orphans’ Court, having duly considered the matters made apparent by this answer, on the 16th of June, 1884, determined that the language of the statute was mandatory ; and in performance of the duty thus ascertained, passed an order requiring the appellant to give counter-security. An appeal from this order has brought the questions involved in controversy into this Court for final determination. The proceedings, which terminated in this appeal, involved the construction, by the Orphans’ Court, of the language of the Code, Art. 91, sec. 1, which is in these words: “ If any security, or any counter-security of an executor or administrator, or any person interested in ■ the estate of any such security, or counter-security, shall conceive himself in danger of suffering from the securityship, he may apply to the Orphans’ Court which granted the administration, and the said Court may require the party to give counter-security, to he approved by the Court,” &c., &c. On behalf of the appellant it has been strenuously argued that the phraseology of the statute, confers on the Court a discretionary power which it may either exercise ■or decline to exert at its option, after having judicially inquired into the verity of the averment, constituting the basis of the application for the relief designated by the statutory provision.

If this position were,tenable it would he difficult to perceive how an exercise of the revisory powers of this Court could be invoked in view of the numerous decisions which militate against the right of appeal in all such cases. ¹⁷ The word “ may ” in the statute was construed by the Orphans’ Court as mandatory and obligatory, and therefore leaving no margin within which there might be an ■exercise of discretionary powers. This construction is in ■strict conformity with the interpretation -of the same phraseology found in an Act of Parliament in Alderman Backwell’s Case, 1 Vernon, 152; an interpretation which seems to have been subsequently respected and adopted in all similar cases in England and in this country. In that case the creditors of Backwell, by petition, asked for a commission of bankruptcy against him, and the Lord Keeper ordered that a commission should issue unless cause to the contrary were shown within a designated period. An application was afterwards made for a suspension of the operation of this order, so as to afford an ■opportunity .for an investigation and ulterior arrangements.