62 Md. 256 | Md. | 1884
Lead Opinion
delivered the opinion of the Court.
The appellee, Erederic C. Cook, as administrator of James Dooner, filed his petition in the Orphans’ Court of Baltimore City, alleging that his intestate in his life-time “opened two accounts in Bank in the names of James Dooner and Edward Gibson, and the survivor of them, subject to the order of either — one in the Savings Bank of Baltimore, and one in the Eutaw Savings Bank.” The petition alleges that from time to time he deposited to the credit of the said account in the Savings Bank of Baltimore $4,674.40, and in the Eutaw Savings Bank $1,814.67. The petition alleges that Dooner in his life-time had absolute possession of the books, and placed them in the hands of the Rev. Edward A. McGurk, President of Loyola College, for safe-keeping; and ‘‘that since the death of said Dooner, said Edward Gibson has obtained possession of said bank books from the Rev. Edward A. McGurk, in whose custody they were at the time of Dooner’s death, by producing proof to said Rev. Edward A. McGurk, of his (said Gibson’s) identity, and also by representing himself to be cousin of said Dooner, which petitioner avers is not the fact. That since he, said Gibson, has obtained possession of said bank books, he has applied for and received from said Banks the moneys
This petition was framed under the provisions ofthe 238th section of Article 93 ofthe Code of Public General Laws. The Court accordingly, in pursuance of the provision of that statute, issued the citation for Gibson, and he appeared and filed an answer under oath, admitting that the petitioner was the administrator of James Dooner; and admitting the deposits in Bank by Dooner in his life-time in his own name and the name of the respondent, but denying that he had sole possession of the said books. He admits he obtained the books from Rev. Edward A. McGurk upon the representations averred, and that he has received certain moneys from the Banks which he has refused to surrender to the petitioner, but denies that it is the money of the estate of James Dooner and that petitioner is entitled to receive it. He denies he is concealing any part of the estate of James Dooner. By amended or supplemental answer, he states the precise sums he received from the Banks as charged in the petition, and places his refusal to surrender on the ground that the same is his own, and denies the right of the administrator to receive the same, and denies the jurisdiction of the Orphans’ Court to decide as to their respective rights.
The Orphans’ Court heard the cause upon testimony and then passed the following order: “ After a careful examination of this case, the Court is of the opinion that they have no jurisdiction in the matter, and therefore dismiss the petition with costs.” Erom this order the petitioner
Order reversed.
Dissenting Opinion
delivered the following dissenting opinion :
If an administrator files a petition in the Orphans’ Court, alleging concealment of any part of his decedent’s estate by any person, there are two things which he must both allege and prove.
The first is, that the property which he so claims is the property of his decedent, and the second is that the party charged has concealed it.
The concealment of the property of a decedent is but little short of a crime. The object of the law was to give the Orphans’ Court adequate powers to prevent its being successfully done, by giving them the power, if they found it was done, to enforce obedience to the order of restitution by attachment, &c.
The law at the same time was careful to guard the rights of either party, by allowing them issues to be sent to a Court of law, and tried before a jury if they desire.
The administrator in this case, charged that a large sum of money belonging to his intestate was taken possession of by the appellant, and concealed by him. The appellant admits the concealment virtually, by saying in his answer that he refuses to tell where the money is, and claims that it belongs to him. I do not see what other-answer one who wanted to smuggle property or money would or could make. He must deny the title of the decedent or produce the property, or show that he never had it. I think the Orphans’ Court had clearly the right under this petition to try the case. The true test of jurisdiction is the pleading of the plaintiff, whether that pleading be at law or in equity. If the plaintiff in any forum states in his pleading facts, which, if true, would sustain the jurisdiction of the Court, certainly no instance was ever found of a defendant’s ousting the jurisdiction by a plea or answer only. The defendant may by plea or answer set up a fact, luhich if true, would deprive the Court of jurisdiction in the case. But the plaintiff is-always entitled to have the truth of the plea or answer tried or determined before he is turned out of Court. So I think in this case the petitioner was entitled to have the truth or falsity of the defence tried before he was turned out of Court. That as by law no appeal lies to this Court from the Superior Court whose decision in a case of this sort is final, provided it has jurisdiction, and as I think it. properly had jurisdiction, I think the appeal should be dismissed.