State ex rel. Boteler v. Digges

Goldsborough, J., delivered the opinion of this'Court: In this case Susan Boteler, the appellant, was-entitled -as the widow of Wm. Boteler, to the sum of $222.24, allowed to her in the distribution of the proceeds of the sale of her husband’s real estate. The auditor’s report ascertaining this sum, was finally ratified and confirmed by tíie Circuit Court for Prince George’s County, and the ¡trustee, Daniel C. Digges, was directed by the usual order accompanying the ratification of the report, to ;pay- over the proceeds in accordance therewith. Before notice .could be given and demand made, upon the ¡trustee to pay the amount claimed, he departed this life.

Administration upon his personal estate was thereafter granted to Elizabeth C. Digges and Richard B. B. Chew, and notice was served upon them and demand made to pay the said sum; they failed to pay the same, and suit was instituted by the appellant in thp name of 'the -State -for her use, against the appellees, the sureties in the trustee’s bond. 'The amended declaration set out-the material facts above stated, and the appellees demurred to the declaration. The Court below gave judgment on the demurrer for the defendants. From this judgment the appeal before us was taken. We deem it unnecessary to determine as a question of law, the sufficiency of the averments in the declaration, as we are justified, by the weight of authority, in deciding, that the remedy of the appellant, under the circumstances, is only in a Court of Equity. ²⁴³ The ease of Oyster vs. Annan, 1 G. & J., 450 , has established the law, that, to sustain a suit on a trustee’s bond for a sum allowed in an auditor’s report, finally ratified and confirmed, tlie party suing must aver and prove a service of tbe order of ratification, on the trustee, and a demand of payment of tbe sum specified.

There is no breach of the contract, nor is the trustee in default until