State v. Hart

Ritchie, J., delivered the opinion of the Court. This appeal is from the decision of the Court below, sustaining the demurrer to plaintiff’s declaration. The appellant, the plaintiff below, claims in his narr. that, as administrator d. b. n. of Arthur McCourt, he is entitled to recover the sum of $3500, of the executrix of Samuel Hart, deceased, the former executor of said McCourt, because the said Hart as such executor, had collected that amount of money, which neither he in his lifetime had accounted for or distributed, nor his said executrix, although requested so to do, had since paid over to the plaintiff. The only questions to be determined in disposing of this case are, first: whether ás a necessary preliminary to the maintenance of his suit, the plaintiff was required to procure an order by the Orphans’ Court, for the payment of the said money to him,, under the provisions of the Act of 1820, ch. 174, sec. 3, embodied in the Revised Code, Arti ²³⁷ cle 50, sec. 109 ; and secondly, whether the passage of such an order should have been averred in his declaration.

That such an order was indispensable to plaintiff’s recovery is apparent, we think from the language of the statute referred to. It reads thus: “ The Court shall on the application of the administrator de bonis non, order the administrator of a deceased administrator, to deliver over to him all the bonds, notes, accounts and evidences of debt, which the deceased administrator may have taken, received or had as administrator at the time of his death, and also to pay over to him the money in his hands as such, on or before a certain day; and upon proof of the service of such order, and the neglect or refusal of the administrator to comply therewith by the time therein specified, the Court may order the bond of the’deceased administrator, or of the administrator so refusing, or both of them, to be put in suit by the administrator de bonis non.” The construction heretofore given the Act of 1820, ch. 171, sec. 3, by the Court of Appeals clearly establishes the necessity of the order described, to enable an administrator d. b. n. to sue in a case like the present one. , In West vs. Chappell, 5 Gill, 228 , Archer, C. J., in delivering the opinion of this Court in a similar suit, says of this Act of Assembly: “ ’Chat Act in authorizing the Court to pass an order for the delivery over to the administrator d. b. n. of the property therein described, impliedly clothed that Court with authority to enquire as preliminary to such order into the fact whether the property was administered or unadministered. It is to be remarked that the Act does not vest the title to such property in the administrator d. b. n.; nor does it give the right of possession to him, except upon the Order of the Orphans’ Court. The Act is evidently founded on the idea that the property therein described may be unadministered prop ²³⁸ erty, but it does not treat it absolutely as such, the Orphans’ Court