Wilson v. McCarty

Irving, J., delivered the opinion of the Court. The petition of Sarah Wilson, filed in the Orphans’ Court of Allegany County, on the 18th of May, 1880, set forth that she was the daughter and heir-at-law of Edward McCarty, deceased, who died in 1849, possessed of large real and personal property, leaving a will by which Isaac McCarty and James McCarty were appointed executors. It alleges that these executors accepted the trust, and took charge of the estate; that one of them, Isaac McCarty is dead, but that James McCarty still lives. The petition further states, that petitioner pending the administration, to wit: in 1852, married one Robert C. Wilson who died in February, 1879, leaving her a widow; and she is now unmarried.

The petition charges that the executors passed sundry accounts of their administration, to which reference is made; but that there has never been a full and complete settlement of the estate by the executors or the survivor of them; and that a large amount of debts still remains due the estate, and a large amount of personal chattels unaccounted for. The petition further charges that on the thirty-first day of October, 1854, the executors charged themselves with $30,176,48, which were distributed, but that no part thereof was distributed to the petitioner, although she was entitled to a share of the same. The petition prays that the surviving executor may be required to make a full and particular account of the administration, that there may be a true and correct dis ²⁷⁹ tribution, and for further relief. The surviving executor was cited to answer this petition, and show cause why its prayer should not be granted.

In his answer he admits the relationship of the petitioner to the testator, and that respondent is the surviving executor of the testator as alleged; but he avers that he has complied with all the requirements of law about the estate, and paid away the estate to those who were supposed to be entitled thereto according to the directions of the Orphans’ Court; and that in 1866, in September, he passed a final account, by which it appears, that he had overpaid the estate the sum of $226.72, which had never been refunded to him. The answer denies that there are large debts due the estate unaccounted for, and a large amount of personal chattels belonging to the estate which have not been accounted for. It insists, that the estate has been fully closed by the passage and approval by the Court of the ninth administration account. It denies the jurisdiction of the Orphans’ Court to require him to answer the petition, as their citation and order did, or to require from him any further account of the estate whatever.

The case seems to have been beard on bill and answer, and the Court, on 18th of June, 1880, passed an order in which they say: “ The Court being of opinion, that they have no jurisdiction to examine into and correct the eighth administration account, are likewise of opinion, that they cannot hear any evidence in the matter of this petition, to show assets in the hands of the defendant unaccounted for or unadministered, and must therefore dismiss the petition for want of jurisdiction as to this case.” Erorn this order this appeal has been taken. It appears that the Court has acted wholly on the theory, that no jurisdiction rested in that body to compel the executor to return additional assets which might be in his hands, or to take steps to collect any that existed and had not been collected and returned. It is clear that ²⁸⁰ the setting down of the case, on hill and answer, was merely to try the question of jurisdiction raised hy the answer. It was the plea to the jurisdiction which the answer interposed, which was heard and determined adversely to the appellant.

It is evident that the appellant tendered herself ready to sustain the allegations of the petition hy proof; for the Court says they “ can hear no proof in the matter of the- petition to show assets in the hands of' the defendant.” So long as assets can he found, which properly belong to the estate of the decedent, which have not been brought-in and accounted for, the estate is not fully closed. If the executors were both dead, on suggestion to the Court, - that such assets existed, the Orphans’ Court would at once appoint an administrator de bonis non to do what was necessary to he done to collect and account for such assets. Salisbury vs. Black, 6 H. & J., 297 ; Hazlett vs. Green, 7 H. & J., 23 ; Scott vs. Fox, 14 Md., 388 ; Cecil vs. Clark, 17 Md., 520 , and Neal vs. Charlton, 52 Md., 495 . In the case now before us one of the executors still lives, and the trust has survived. ' If, therefore, there he assets which he has not returned, or assets which can he recovered, which he has not recovered, it is not only within the power and jurisdiction of the Orphans’ Court to require the. executor to discharge his duty, hut it is the plain duty of that Court to compel him.

This jurisdiction is expressly conferred hy the statute. See Rev. Code, Art. 50. secs. 5, 6, 14 and 15. The cases of Jones vs. Sothoron, 10 G. & J., 187 , and Binnerman vs. Weaver, 8 Md., 517 , upon which the Orphans’ Court relied, as establishing its lack of jurisdiction in the premises, are not applicable to a case like this. In Jones vs. Sothoron, the property giving rise to the contention consisted of negroes, which had been distributed and actually handed over to the claimants ; and this Court only decided that delivery of specific property ²⁸¹ having heen made to the distributees, the Orphans’ Court could not compel a re-delivery of the specific property to the executor or administrator for the purpose of new distribution.

The Orphans’ Court in such case could not enforce a change of possession, and a Court of equity had to be invoked. The case of Binnerman vs. Weaver, is not more in