Ex parte Shipley

| Md. | Dec 15, 1853

Tuck, J.,

delivered the opinion of this court.

This appeal is taken from an order of the orphans court of Baltimore county,

It appears that in pursuance of the 4th sec. of the act of 1831, ch. 315, a sum of money, belonging to the estate of Charles Wood, on' which the appellants had taken out letters of administration', was brought into court and deposited in the Fremont Savings Institution. Afterwards the appellants filed their petition, in which one of the sureties on the' administrator’s b'ond united, suggesting that this fund was’ unpro-' d'uctive, that the institution was not responsible, or solvent,' and that there Was great danger of the money being utterly lost to the estate'; and praying that it might be paid back to' the administrators. This petition was dismissed for reasons-assigned in th‘e order of the court.

The act of Assembly authorises the orphans eourts "in their discretion, and whenever to them it shall seem proper, either ex-officio, or upon application, to order any executor or' administrator, to bring into court, or place in bank, or invest in bank stock, or in any other good security, any money or funds received by such administrator or executor, and the court shall direct the manner and form in which such money or funds shall be placed in bank, or invested as aforesaid.” The right of a party interested to make application to have the funds taken from the administrator, for safe keeping, cannot be questioned. It is equally clear, that when deposited or invested by order- of the court-, it is th'e duty of the court' to hear suggestions from those interested, for the purpose of having the money removed, if in danger of being lost to the estate, and this they may do ex-officio, without any such suggestion. But when the court has passed upon such application its decision is final, and no appeal will lie. The orphans courts, in these cases, are clothed With a discretion. This means a sound judicial exercise of the authority vested in them by the act of Assembly, with reference to the security of the fund; not an arbitrary or capricious decision. 4 Gill, 261. If, as suggested by the appellants’ counsel, the court below acted in the present case without hearing evidence, if offered, or allowing time to them to produce their proofs, and this appeared by the record, we could not say that it had properly exercised the power conferred by law. It is the duty of courts to respect the rights of parties, and to protect their interests. This cannot always, if ever, be accomplished by deciding upon their personal knowledge of the circumstances of the case. In the case of Rex vs. Justices of Kent, 14 East, 395, which was a proceeding to compel an inferior jurisdiction to exercise a discretionary power, the court said* “if the justices had rejected the application, in the exercise of the discretion vested in them by the Legislature, this court would not interfere; but if they had rejected it on the ground stated, that they had no power to grant it, the court would interfere so far as to set the jurisdiction of the magistrates in motion, by directing them to hear and determine upon the application.” — “They have a discretion to exercise, and therefore they must hear the application; hut having heard it, it rests entirely with them to act or not upon it as they think fit.”

We must presume, however, that the court has properly exercised its powers, until the contrary appears. The record does not show that it refused to hear evidence, or denied time to the appellants to collect their proofs. On the contrary the order of the court states, that no evidence whatever was furnished against the solvency of the institution.

Appeal dismissed„