Bacon v. Howard

20 Md. 191 | Md. | 1863

GoXiDSBosougu, J„,

delivered the-opinion of this Court:

The appeal in this case is taken from an order of the Orphans’ Court of Harford County, passed on the 5th day of February 1862, on the petition of the appellees.

The petitioners prayed the Court to order and direct the appellants to charge themselves as administrators of James T. Sullivan with the sum of twenty-seven hundred dollars, admitted by the appellants to have been deposited with the banking house of Josiah Lee & Co., which, at the time of the deposit, was composed of Garrard, Grover and others. That the said sum of money has been lost by the failure of the above firm, and that the deposit was made by the appellants without any order or authority of the Orphans’ Court.

From the earliest period of the testamentary system, it has been tbe sedulous.purpose of tbe Legislature to bold persons standing in a representative position to a just accountability; while at the same time, ample provision is made in that system for tbeir official protection.

No person who seeks to bold this relation can obtain it, without giving bond and security for the faithful execution of the trust reposed in him, and all his official acts are subject to the direction and control of the tribunal upon which ample jurisdiction is conferred in the premises.

It would therefore be in direct conflict with the spirit and intent of the testamentary law, to deprive those interested in the due and proper administration of personal estates or the management of guardianships, of the safeguards provided for their protection. To allow an administrator to select for himself (without the sanction of the Orphans’ Court) a depositary for the assets of an estate, and in case of.loss, to claim an exemption or credit for the loss, though he may have acted in good faith, would be to substitute his private judgment for that of the Orphans' Court, and leave the parties interested, to the pecuniary ability of the party with whom the fund is deposited, and not to the security.of the administrator’s bond and the power of revocation conferred on the Court in case of failure to comply with its orders.

The point presented by the appellants’ counsel, “that when a trustee or executor has used good faith in the exercise of a fair discretion in the same manner as he would ordinarily do in regard to his own property, he ought not to be held responsible,” has received the careful consideration of this Court.

Whatever force this suggestion might have in the absence of positive legislation, we must determine that the Act of 1831, ch. 315,«was intended to* add a further safeguard to the due and proper administration of personal estates, and to hold executors, administrators and guardians to such accountability in case of investment or deposit, so that no exercise of private judgment, though made in-good faith, would relieve their official responsibility.

The section of the 93d Article of the Code, makes no distinction between administrators and guardians. This section is an exact transcript of the Act of 1831, ch. 315, and in the case of Carlysle vs. Carlysle, 10 Md. Rep., 440, this Court gave such a construction to the Act of 1831, as to leave no doubt of the responsibility of the appellants in this case. See also O’Hara vs. Shepperd, 3 Md. Ch. Dec., 306.

Thetefore the appellants having deposited the fund in controversy without the sanction of the Orphans’ Court, and the amount deposited being lost by the failure of the parties with whom it was deposited, the appellants must be held responsible for the loss, and the Orphans’ Court having so decided, the order appealed from will bo affirmed.

(Decided Oct. 28th, 1863.)

Order affirmed with cost to appellees.