Gephart v. Strong

| Md. | Jan 28, 1864

Bowie, C. -X.,

delivered tbe opinion of this Court:

A preliminary question occurs in this case, on the motion to dismiss the appeal, which is founded on two reasons; first, that the matter is too small in amount to be entertained by an appellate tribunal; second, because the order appealed from was passed on a summary proceeding, and on testimony of the witnesses, and the appellants did not give notice of their intention to appeal, and request the testimony to be reduced to writing as required by Article 5, sec. 40, of the Code. In support of which latter position, Cecil vs. Harrington, 18 Md. Rep., 510, is referred to.

There is no limitation of the right of Appeal from Orphans’ Courts, in this State, by reason of the amount involved. “In all decrees, orders, decisions and judgments, made by the Orphans’ Court, the party who may deem himself aggrieved by such decree, order, decision or judgment, may appeal to the Court of Appeals;” within thirty days after such decree, &c. Code, Art. 5, sec. 39. The maxim iCde minimis non curat lex,” cannot prevail against an express statutory provision.

The second reason does not seem to be sustained by the record or the authority cited to support it. The appellants were made defendants by tbe original petition, and summoned. They appeared and answered. The answers being excepted to, they filed additional answers. Immediately after which, the case being regularly continued, the witnesses were produced, sworn, and their testimony reduced to writing, before any other action was bad by the Court. If such was not the fact, the record misrepresents the proceedings of the Court, a presumption too violent to be made. There is no coincidence between the facts of this •case and those of Cecil vs. Harrington, 18 Md. Rep., 510.

The party appealing in that case was not originally a party to the proceedings appealed, from. Some time after the order appealed from was passed, James Cecil, the appellant, appeared by counsel and prayed an appeal, and after praying tbe appeal, his counsel prepared a statement of the evidence, as taken down in writing by one of the judges of the Court, during the trial, and asked the Court to inspect it and correct it if necessary, and order the register in the usual way to prepare a transcript therefrom for the purpose of appeal. On this application the Court passed an order reciting, that they had inspected the evidence so prepared, and found it substantially correct, and directing it to be filed and made part of the record to be transmitted to the Court of Appeals; on this state of facts this .Court said: “The modo of proceeding to obtain the benefit of an appeal in such a case, is prescribed by the 5th Art. of the Code, sec. 40.” * * * “This requirement has not been gratified in this case. The record contains no depositions properly so called. What purports to be the testimony taken below, was taken ex parte by the appellants’ counsel, from notes or memoranda taken at the trial, and is certified by the judges to be substantially correct.” In this case testimony was taken on both sides, and reduced to writing at the moment, at whose instance does not appear, but it necessarily follows, with the consent of each party and the sanction of the Court. Every circumstance repels the presumption that it was unauthorized.

To request that to be done which appears to have been already done, would have been unmeaning and nugatory. The object of requiring notice, &c., as a condition precedent to an appeal, in cases of summary proceedings, where the evidence has been taken orally and not reduced to writing, is to prevent surprise by a party’s taking a case up, without the evidence on which it was decided. But where the testimony is reduced to writing by the order of the Court, at the time it is taken, no such surprise can be effected, and “cessante ratione, cessat et ipsa lex.”-

The appellants insist, that the Orphans’ Court exceeded its powers by passing the order of the 30th September 1862, because, by the laws of the land, the appellants are bound to pay in gold and silver, and if they failed to pay, when required, in gold or silver, their bond is responsible.

(Decided Jan. 28th, 1864.)

The executors in this case aro quasi trustees. They are required to account to the Orphans’ Court for the proceeds of sale, “in the same manner that an executor is bound to account for the sales of personal estate.” Code, Art. 93, sec. 280. The Orphans’ Court have full power, authority and jurisdiction to examine, hear and decree upon all accounts, claims and demands existing between persons, entitled to any distributive share, and executors and administrators.” Id., sec. 231.

Executors are entitled to no profits on the proceeds of sale made by them, beyond the commission allowed by law. In this instance, not contented with converting the lands into money, and making their commissions on the amount of sales, they, without authority of law, make merchandize of the coin they received, and seek to appropriate the premium to their own use.

The appellees claim that they are entitled to the premium received, and the appellants are cited to account for that premium. It is as if the executors had purchased the lands themselves at their own sale, and afterwards sold them at an advance. This Court will not enter into questions of currency in this case.

A profit or advantage has been obtained by the executors, over and above their commissions, by dealing with the assets which belonged to the appellees, and they must account for it. The true rule in such cases is, to take care that all gains shall go to the “ceslm que trusts.” 2 Story’s Eq., sec. 1277.

Order affirmed with cosls to appellee.