Clay v. Brittingham
34 Md. 675
Md.
1871
Check Treatment

Dissenting Opinion

Grason, J.,

delivered the following dissenting opinion in which Bartol, C. J., concurred.

This appeal is taken from an order or decree of the Circuit Court for Somerset county, dismissing the petition of the appellant praying the passage of an order directing the appellee to pay over to him certain funds in his hands, the proceeds of sales of real estate, sold under the decree of said Court. The question for decision arises upon the construction of section 196, of the 93d Article of the Code, which provides that, if any non-resident infant shall be entitled to any legacy, bequest or distributive share, or to the proceeds of any sale, made under a decree of a Court of Equity, or to any money or personal property in the hands of a trustee appointed by will, or shall be entitled to the proceeds of any sales of property in this State, or to any legacy, bequest or distributive share of any personal property in the hands of any administrator or guardian in this State, and such infant has a guardian regu*683larly appointed in the State, district or territory of the United States, in which such infant resides, such foreign guardian may obtain an order from the proper Court for the payment, transfer or delivery of such proceeds, legacy, bequest or distributive share, upon the terms prescribed in the next succeeding section. The 137th section provides that the foreign guardian shall file a petition stating that he has been duly appointed guardian to such infant by the proper authority of the State, district or territory, where the infant resides, that he hath given good and sufficient security for the faithful performance of his trust as guardian, and that as guardian he then has the custody of the person of such infant; and setting forth the entire amount of personal property, including that in this State, belonging to such infant, and also the income of the real estate, if any, of such infant, which hath come, or is likely to come, into the hands of such guardian, which petition shall he accompanied by a duly authenticated copy of the record of his appointment and qualification as such guardian, and of the bond, or other instrument or security, so given as aforesaid. Section 198 provides that the petition shall be verified by the affidavit of such guardian, and the sufficiency of the security shall be proved by the affidavit of the chief clerk or prothonotary of the Court by whom such security was taken, or by the affidavit of some other disinterested and credible witness. The money, sought to be transferred to the foreign guardian by the petition filed in this case, is the proceeds of real estate sold under a decree of the Circuit Court of Somerset county, under sections 36 and 37, of the 16th Article of the Code. We think it perfectly clear that section 196 applies only to personal property in this State belonging to a non-resident infant. This is shown by the context, and is apparent also from the terms of section 197.

It'was contended in the argument in this Court that the 196th section does not necessarily embrace the proceeds of sales of infants’ real estate, but that, even if it does, that section must be construed in connection with sections 45, 46 and *68448, of Article 16, of the Code. The language used in section 196 is too plain and comprehensive to leave room for a doubt that the proceeds of such sales are embraced, for they are mentioned and specified in those very words.

Assuming that the sections of Article 93, before cited, are in pari materia with the sections of Article 16, let us so construe them, and see whether they cannot all stand together. Section 45 provides that “ where the real estate of an infant is sold upon the application of his guardian or proehein ami, the money arising from such sale shall be invested as the Court shall direct, in the name of such infant, and the surplus interest, after deducting what may be necessary for the maintenance and education of such infant, shall also be invested as aforesaid, and such investments shall not be transferred except by order of the Court, and any transfer without such order shall be void.” It has been argued that, -when the proceeds have been thus invested, they cannot be transferred to a foreign guardian; that the law does not contemplate such transfer and that the Courts will not permit its transfer to a party without their jurisdiction, when they would not deliver possession of the fund even to a guardian residing within their jurisdiction and subject to their control. It is true that a guardian, living in this State, will not be permitted to take possession of the proceeds of the sales of his ward’s real estate' sold under sections 36 and 37. But, when a foreign guardian files his petition and complies with the requirements of the '196th, 197th and 198th sections of the 93d Article of the Code, the Court is then required by the express provisions of the 196th section to deliver the funds to him. Until such application is made, the procéeds of the sale will be invested under the direction of the Court, and preserved and managed in the same manner as the proceeds of sales of lands belonging to infants residing within this State. But it is argued that the sale of an infant’s real estate does not wholly convert it into personalty because section 48, of Article 16, enacts that upon the death of such infant under age, intestate and without *685issue, the proceeds of the sales shall descend or be distributed, as the property or estate would if it had not been sold. The sale of an infant’s real estate certainly changes the character of the property, and the proceeds thereof are clearly personal property, and in the event of the death of the infant such proceeds of sales would be distributed to its personal representatives, in the absence of statutory provision to the contrary; and all that is done by the 48th section, is to invest this personalty with one of the characteristics of realty in certain contingencies, that is, to make it descend to the infant’s heirs, in the event of his dying under age, intestate and without issue. As a further reason against the right of the foreign guardian to have this fund transferred to him it is urged that, when so transferred to the foreign guardian, and removed to another State, it would, in case of the infant’s death, be distributed according to the laws of that State, and thus the provisions of our law be defeated, and the heirs of the infant, for whose benefit it is alleged the 48th section was intended, would be deprived of the property. It is very evident that it was intended by that section that, if the infant died under age, intestate and without issue, while his funds remained invested within this State, they would have descended as the real estate would, had it not been sold, and this was all that section 48 was intended by the Legislature to accomplish. As long as money, the proceeds of the sales of real estate, belonging to an infant living out of this State, remains herein invested under the direction of a Court of Equity,' so long is it subject to descend as provided for by section 48; but upon being transferred they at once lose that incident attached to them by section 48, and become subject to the laws of distribution of the State where the infant resides.

It is also said that a Court of Equity of this State has no jurisdiction, under section 36, to sell the real estate of an infant except the provisions of the following sections are complied with, one of which, it is contended, is the investment of the proceeds of sale under the direction of the Court, as pro*686vided by section 45, and their remaining so invested during the minority of the infant, and subject to the provisions of that section and sections 46 and 48. It is perfectly clear that the proviso in section 36 refers only to'those sections following which prescribe the particular mode of proceeding to be pursued before the decree of sale, as a necessary preliminary to the exercise of the power, and that it does not refer to those sections which govern the management and disposition of the money after sale. It is conceded that all proceeds of sales of real estate belonging to an infant residing out of the State, except such as arise from sales under section 36, can be delivered to the foreign guardian. We do not perceive the reason for this exception; these are equally within the words of the 196th section. But it is said that the provisions of section 46 would be defeated by a transfer of the said proceeds of sale to the foreign guardian; and from this it is argued, that it was not intended by the Legislature that, when once invested, they should be withdrawn.

That section enacts that “ no part of the principal arising from such sale of any real estate, shall be applied to the maintenance of any infant, unless the Court shall consider it necessary and order the same to be done.” This is a wise provision, intended for the preservation and safety of the fund, and the disposition of it, under proper authority, for the best interests of the infant, so long as it remains under the direction and control of the Court. But this section in no wise conflicts with the right of the foreign guardian to apply for and receive it whenever he may think proper to do so, under the provisions of sections 196 and 197 of Article 93. Even where other parties are entitled to the property by way of revision, remainder or executory devise, after the particular previous estate of the infant terminates, the foreign guardian is entitled to receive it upon complying with the provisions of section 201 and the previous sections of Article 93 before referred to. If property or. money, in which the infant has but a life estate, can be removed to another State to the possession *687of a foreign guardian, when parties living in this State have a vested absolute title thereto, to take effect in possession at the infant’s death, we cannot see why a fund, in which the infant has an absolute estate, should be withheld from him and continued under the control of our Courts, and subject to our laws. The foreign guardian is appointed by the tribunals of the place where the infant resides, gives bond for the faithful discharge of his duty, is under the control and direction of the Court appointing him, to which he has to account for the manner in which his ward’s estate is managed, and it is difficult to perceive any objection to the ward’s personal property and money being delivered into his possession by the Courts of this State, upon his satisfying them, and given bond with security, that he has been appointed guardian, and has complied with the requirements of our laws. The foreign guardian, who has the custody of the person of his ward, seems to be the proper party to have the custody of the ward’s funds also, in order that he may be able, with more convenience and promptness, and with less expense, to expend such part of it, under the directions and control of the tribunals of his and the infant’s domicil, as may be required for the maintenance and education of his ward. The views herein taken of the sections of the 16th and 93d Articles of the Code, reconcile whatever in them may seem to be incongruous and conflicting, and give effect to all of them. A careful consideration of these sections leaves no doubt upon our minds that the appellant in this case is entitled to receive the funds in question, upon complying with the requirements of the law. These views appear to us to derive additional force from a reference to the original statutes. The Acts of Assembly in relation to foreign guardians, now embodied in the Code in Article 93, to which we have referred, were passed long after those relating to the powers of Courts of Chancery, now contained in the 16th Article, and if the original statutes were now before us for construction, and were found to be in conflict, those last enacted would be construed *688as repealing, pro tanto, the former laws, and would be operative. We think the provisions of the Code ought to receive the same construction.

Entertaining these views, we think the decree of the Court below, dismissing the petition, ought to be reversed.





Lead Opinion

By the Court:

A majority of this Court thinking the order appealed from correct, affirm such order for the reasons well assigned in the opinion of the Court below.

Order affirmed.