79 Md. 248 | Md. | 1894
delivered the opinion, of the Court.
Kealhofer and Armstrong, administrators d. b. n. c. t. a. of Louisa J. Berry, deceased, by petition in the Orphans’ Court of Washington County, claimed the benefit of sections 224 and 225 of Article 93 of the Code. Section 224 requires every executor when he returns the list of debts due to his testator, to include among them any just claim which the decedent had against him. On Ms failure to do so, any person interested in the administration is authorized to allege the same by petition to the Court, and thereupon proceedings are directed for establishing it. Section 225 makes the same provision in the case of administrators; and further enacts that all commissions allowed to the executor or admimstrator shall be applied towards the payment of any such claim so returned or established.
The facts shown to our satisfaction by the record are as follows: In eighteen hundred and eighty, Mrs. Berry and George W. Pole became sureties on the bond of William M. McDowell, as executor of Jacob Schneider. In eighteen hundred and eighty-five, McDowell became the executor of Mrs. Berry, and Elias Emmert and George W. Pole became sureties on Ms testamentary bond. McDowell was removed from the executorsMp of Mrs. Berry’s estate, and the appellants were appointed administrators de bonis non c. t. a. An action being brought on the bond executed by McDowell as executor of Schneider, a judgment was rendered against the appellants, as admimstrators d. b. n. of Mrs. Berry, by reason of her suretyship on the bond, and they were compelled to pay it out of the assets of her estate. The money thus paid was in satisfaction of the breaches of McDowell’s bonds, and Mrs. Berry had rendered herself liable for these breaches by becoming surety for him. Her estate paid the money for Ms benefit. If this payment creates a just claim against McDowell, then, by the express language of the. Code, it ought to be re
What we have said will indicate our opirnon on the principal question involved in this case. But it is necessary to notice the method of proceeding wMch was adopted in presenting the question to the Court below. The petition was filed against McDowell, the removed executor, and against Emm ert and Pole, his sureties. McDowell was returned non est, and Pole mortuus est. Emmert answered the petition, and the Orphans’ Court, after a hearing dismissed it, with costs. There seems to have been no objection taken to maldng the sureties parties to the proceeding, or to receiving the answer of the one who was
We must reverse the decree of the Orphans’ Court in so far as it dismissed the petition of the administrators de bonis non, and we will remand the cause for further proceedings in accordance with this opinion.
Reversed and remanded.