Taylor v. Bruscup

Bowie, C. J., delivered the opinion of this Court: In a case between the same parties, decided by this Court on the 2d of March, 1867, an order in the nature of a supersedeas was issued by this Court, suspending proceedings pending this appeal. The question now arises on the appeal taken the 26th October, 1866, from the original decree of the Orphans’ Court, requiring the appellants to appear'and bring into that Court the sum of $1,818.33, alleged to have been withdrawn by the appellant Margaret, on the 28th of September, ult., from the Eutaw Savings Bank, by virtue of a certificate of Deposit, of which the following is a copy : 14,096. Joseph Henry, Margaret Taylor, and the survivor of them, subject to the order of either of them. 1866. April 20 — Rec’d eighteen hundred and fifty dollars. ...... $1,850 00 E. T. Owens.

June 2 — Paid fifty dollars. . . . 50 00 Balance. . . 1,800 00 April 20 — Interest to June 1st,’66. . 33 Sept. 28 — Interest. .... 18 00 $1,818 33 Paid to Margaret Taylor, Sept. 28th, 1866. ²²⁵ The power of the Court to pass this order, is said to he derived from the 238th section of the 93d Article of the Code of Public General Laws. This section authorizes an administrator, if he shall believe any person conceals any part of the decedent’s estate, to tile a petition in the Orphans’ Court alleging such concealment, and the Court shall compel an answer on oath, and if satisfied upon an examination of the whole case, that the party charged has concealed any part of the personal estate of the deceased, may order the delivery thereof to the administrator, and may enforce obedience to such order by attachment, imprisonment, or sequestration of property. This section is, “pro tanto,” a transcript of sec. 12, ch.t115, of the Act of 1831, to which was annexed a proviso to the effect, that in case either party, after answer put ixi on oath, shall require it, the Court shall direct an issue or issues to he made up and seat to any Court of law which may be most convenient under all circumstances for trying the same, as provided in the Act of 1798, ch. 101, to which it was a supplement. A similar provision, applying to all issues raised before the Orphans’ Court by petition and answer, is embodied in the Code.

If the parties to this controversy had desired to avail themselves of the benefit of issues, to be tried by a jury, could any issue involving the fact of concealment have been properly framed upon the petition and answer filed in this case ? If not, the power of the Court must be found in some other section of the Code. Concealment is the ground of jurisdiction in such cases in the Orphans’ Court as essentially as accident, fraud or mistake are grounds of jurisdiction in a Court of Equity ; and in both Courts the facts giving jurisdiction must be alleged in express or equivalent terms. The Code, Article 93, Section 252, declare s: The Orphans’ Court shall not, under pretext of incidental power or constructive authority, exercise