60 Md. 419 | Md. | 1883
delivered the .opinion of the Court.
Jacob S. Forney, of Baltimore County, died, leaving a will by which he appointed William A. Russell his execu
The Court thereupon, on the 27th of March, passed an order which, after reciting that the petition and complaint of Shriner had been considered, “ and it appearing to this Court that he is likely to suffer by the negligence and misconduct of his said co-administrators, and by their improper use and misapplication of assets belonging to the estate, and the Court being satisfied that his complaint is well founded, and that said administration should no longer be confided to them,” proceeds to revoke their let
The order was passed under section 241, Art. 93, of the Code, which provides that “Whenever any joint administrator or executor shall apprehend that he is likely to suffer by the negligence or misconduct in the administration, improper use, or misapplication of the assets of the estate by any executor or administrator, he shall make complaint to the Orphans’ Court, and if the same shall be adjudged well founded, the Court shall have authority, in their discretion, to revoke the powers and authority of the executor or administrator so complained of.” This particular section of the testamentary law has never before been directly presented to the Appellate Court for construction, but in Jones, Adm’x vs. Jones, 41 Md., 354, it was expressly decided that an appeal will lie by a single administrator from an order revoking his letters, and it was there said that Ex parte Shipley and Wife, Adm’rs of Wood, 4 Md., 493, and Porter, Ex’x, &c. vs. Timanus, et al., 12 Md., 283, in which the appeals were dismissed, were cases coming under section 231, which gives authority to the Orphans’ Court to revoke his letters if the administrator refuses to comply with an order to bring into Court, or place in bank, or invest money received by him as such administrator. Again, in Slattery, &c. vs. Smiley, 25 Md., 389, it was held that an appeal from an order removing a guardian, passed under section 232, which provides that the Orphans’ Court “may, on the application of an infant, or any person in his behalf, suggesting improper conduct in any guardian whatever, either in relation to the care and management of the property or person of the infant, inquire into the same, and, at their discretion, remove such guardian and make choice of another who shall
If this depended on the state of case presented by the original record there would be no difficulty in reversing the order. In that record the Register certifies that there was “no evidence on summary proceedings before the Court” when the order appealed from was passed, “other than is contained in this record,” and clearly there is in this record no evidence whatever to justify the order. But in a supplemental record, brought up by the appellee under a writ of diminution, the Judges of the Orphans’ Court deny this statement of the Register, and order it to be amended so as to correspond with the facts recited in the diminution record. From these it appears the Court had before it, when the application for the order was heard, a letter of Cromwell, written for himself and Forney, from Missouri, dated the 27th of January, 1883, addressed to the Court, in which it is admitted they may have acted indiscreetly in leaving Maryland without making settlement on account of sales, but they thought Shriner could
If the case rested upon this record it is clear the order would have to he affirmed, for the failure of the appellants to account and deposit the money as required, afforded abundant ground for the revocation of their letters. But another supplemental record has been brought up under a writ of diminution obtained by the appellants, from which it appears that early in February they had rendered their accounts as required, and that on the 12th of that-month the Court passed an order rescinding that of the 24th of January, and substituting therefor directions that the moneys he deposited in the hanks in the names of the three, and subject to their joint check, and allowing the three jointly access to the security box. From all this it is manifest the Judges were in error when they certified, in effect, that no such accounts had been rendered up to the 27th of March. The question then comes at last to this, have they complied with that part of the order of the 24th of January, which required them to deposit in bank the money in their hands ? If they have done this the records disclose no good reason for revoking their letters. In our opinion there is enough upon the face of these records to warrant, the inference that this has been done.
This disposition of the case dispenses with the necessity of saying anything in regard to the order refusing to grant to the appellants plenary proceedings in respect to the charges made against them, from which an appeal was also taken.
Order reversed, and cause remanded.
Stone, J., dissented as to the right of appeal.