Wilson v. Ireland

Le Grand, C. J. delivered the opinion of this court. This is an action of replevin, instituted by the appellant, in his capacity of administrator ad colligendum of Samuel Owens, deceased, against the appellee, to recover a negro slave alleged to belong to the estate of Owens. The defendant interposed several pleas, only the first of which, however, it is necessary for us to notice, which is a denial of the plaintiff having been appointed collector, &c., of Samuel Owens. ⁴⁴⁷ The plaintiff, to sustain the issue joined on this plea, gave in evidence the original letters ad colligendum, which are •without dale; and also the bond of the plaintiff, dated the 23rd day of February 1849, on which was endorsed, as appears from the certificate of the register of wills of Calvert county: “Sam’i B. Wilson, collector of Samuel Owens, to the State of Maryland, Bond filed the twenty-third day of February, eighteen hundred and forty-nine. Recorded in liber SSEL, No. 1, folio 33, and examined per Richard Mackall, Register.” He also gave in evidence the original minutes of the application of the plaintiff to the orphans court for the award of the letters to him, from which appeared, under date of Tuesday, February 20th, 1849, the following entry: “On application of captain Samuel B. Wilson, it is ordered by the court, that letters ad colligendum be granted to him upon the estate of Samuel Owens, late of Calvert county deceased.

The court adjourned until the second Tuesday in March, being the 13th day.” In addition to the above, the plaintiff offered to prove by the register of wills of Calvert county orphans court, that the said court never caused any -written evidence of their approval of the bonds of executors, administrators or collectors to be entered on their minutes, or endorsed on the bond, or kept or retained in any other manner, but that the habit and usage of the court was, upon the tender of the bond to them, verbally to direct the register to accept and record the same, and that upon such direction, the register recorded the bond, and that where letters testamentary were ordered by the court and the bond was subsequently given in vacation, it was the invariable habit of the register of wills, at the next session of the court, to tender such bonds to the court for approval, upon which approval they were recorded, and not before. The plaintiff also proved the death of Samuel Owens to have taken place before the date of his bond as collector. On this state of facts, on motion of the counsel of the defendant, the circuit court instructed the jury, that the proof ⁴⁴⁸ was not legally sufficient for the plaintiff to maintain the issue joined upon the first plea. In giving' this instruction we think the court erred.

The case of Raborg vs. Hammond, 2 Harris and Gill, 42, is directly in point. It was there held — fin a case in which it was not only not denied, but conceded, letters of administration had been improperly granted — that in a suit instituted by the administrator, it is not competent for a court of law to go into an inquiry whether administration had been rightfully granted or not, and that in all cases in which letters have been granted improperly, application for their revocation ought to be made to the tribunal granting them, or an appeal prosecuted for a revision of its order in the