80 A. 699 | Md. | 1911
The appellant filed a petition in the Orphans' Court of Washington County in which he alleged that the appellee, who is one of the administrators of David Long of D, deceased, is indebted to the estate in two sums named, but that he did not include those claims in the list of debts filed as due the decedent. The petition prays that the appellee "be required to give in said claims in his list of debts as administrator;" that the Court pass an order requiring him to file an answer to the petition by some day to be named, and that upon filing the answer issues arising out of the petition and answer be framed and sent to the Circuit Court for trial. An order was passed requiring the appellee to file an answer on or before February 4th, 1910. An answer was filed on that day, in which the appellee denied that he was indebted to the estate of the decedent, and alleged that he and his two *133 co-administrators had made a full and complete return of all the debts due the estate. Nothing more appears to have been done until September 27th, 1910, when the appellant filed another petition in which he referred to the former one, and the answer thereto, and prayed that issues be transmitted to the Circuit Court for trial. He proposed as the issue to be sent, "Is Harry R. Long indebted to the estate of David Long of D., deceased, if so, how much?"
On September 30th, the appellee asked that the petition first filed be dismissed, (1) because by the answer, which was under oath, all of the material allegations of the petition are denied; (2) because under the pleadings there is no matter or cause in law upon which issues can be granted; (3) because under the pleadings the appellee is not indebted unto the estate; (4) because there are no matters properly in issue before the Court and between the parties set forth in the petition and answer, whereon any issues can be framed and sent to a Court of law; and (5) for other reasons to be assigned at the hearing, etc. On October 4th, 1910, the appellant filed a replication to the answer, but the same day the appellee made a motion that it be not received. On the 18th day of October the Orphans' Court passed an order that the replication be not accepted, and on the same day it passed another order dismissing the original petition of the appellant. Appeals were entered from both of those orders. In the first one mentioned it is recited that the replication was filed after the hearing of the motion of the appellee to dismiss the petition of the appellant. It was conceded at the argument that the replication was filed after the hearing mentioned, and the material question to be considered is whether the Orphans' Court properly dismissed the petition, inasmuch as there was no replication filed at the time of the hearing of the motion to dismiss it.
If the cause was submitted to the Orphans' Court for its determination on the original petition and the answer, there can be no doubt that there was nothing for the Court to do but dismiss the petition, as the answer unquestionably denied *134 the allegation as to the indebtedness, and if the answer be true there was no reason for sending issues to a Court of law. But can it be properly said that it was so submitted? Section 227 of Article 93 of the Code requires an executor to return any just claim which the decease had against him in the list of debts, "and on his failure to give in such claim, or any part thereof, any person interested in the administration may allege the same by petition to the Orphans' Court granting the administration, and the said Court, with the consent of the parties may decide on the same, or it may be referred by the parties with the Courts approbation; or at the instance of either party, the Court may direct an issue or issues to be tried, and the same shall be tried in the Circuit Court for the county, * * * as other issues from the Orphans' Court; * * * and a certificate from such Court, or the Judge thereof, of the verdict, or finding of the jury, under the seal thereof, shall be admittted by the Orphans' Court to establish or destroy the claim, or any part thereof." Section 228 of Article 93 makes the provisions of section 227 applicable to administrators.
It will be observed that this statute does not in terms provide for even an answer, but this petition asked that the administrator be required to answer, and that is undoubtedly the proper practice. Kealhofer v. Emmert,
We find nothing in this record which would justify us in saying that the cause had been set down for hearing by the Orphans' Court on petition and answer. On the contrary, the appellant had filed the other petition, which showed, certainly as clearly as a mere general replication would have done, that he disputed the facts alleged in the answer, as he expressly asked that they be passed on by a jury. It stated: "That your petitioner is advised that he is entitled to have the issues of facts raised as to the matter of said petition and answer to be tried and determined by a jury as preliminary questions, and he therefore prays that issues may be transmitted *136 to the Circuit Court for trial," and then went on to name the issue proposed by him, as stated above. Three days after that the appellee asked to have the original petition dismissed for the reasons mentioned above, but did not ask that the petitioner be required to file a replication. It was upon the day of the hearing upon that motion of the appellee that the replication was filed. Surely, under such circumstances, the appellee could not have been misled into the belief that the matters raised by the original petition of the appellant and the answer of the appellee were being submitted on said petition and answer.
In Hall v. Clagett,
If therefore this motion had not been made, but issues had been granted as prayed for, it is clear that the verdict of the jury could not have been disturbed because there was no replication, and, although nothing appears in the record to show that any rule had been laid on the petitioner, or that his attention was even called to the omission (excepting in so far as it was done by the general reference to the pleadings in the motion filed by the appellee), to determine that the petition must be dismissed because there was no replication would be holding a petitioner in the Orphans' Court to a *137 stricter compliance with the rules of pleading than would be done in a Court of equity. Setting a case down for hearing on a petition and answer is altogether different from hearing a motion to dismiss the petition, which this record shows was done, especially when the Court then had before it an application to send issues to a Court of law, in order to have the facts raised by the petition and answer determined.
Although it is proper to conduct the proceedings in the Orphans' Court in an orderly way, it would at least not be a great departure from the practice in those Courts to treat the petition of September 27th asking for issues as sufficient substitutes for a formal replication, for we cannot understand how the appellee or the Court could have had any doubt from that petition that the appellant intended to put the cause at issue; indeed, that he understood that it was at issue — especially as under the statute the Orphans' Court was only authorized to decide the question "with the consent of the parties". He was certainly not manifesting such consent when he was seeking to have the trial question at issue sent to a Court of law to be determined.
We have not deemed it necessary to examine the records in the various cases in this State to ascertain how far it can be said that the general practice is to file replications in the Orphans' Court, but in the recent case of Gallagher v. Martin,
Without prolonging this opinion, our conclusion is that the Court was in error in dismissing the petition, and although the petition of the appellant filed on September 27th, 1910, was in our judgment sufficient to put the cause at issue, and hence a formal replication was not necessary for that purpose, yet as the appellant tendered one, it should have been received. If the order that the replication be not accepted had been the only one appealed from it might not have been necessary to reverse the case, for the reason that it could have been treated as harmless error, but as the order dismissing the petition must be reversed, and the appellant should be allowed to file a replication, if he desires to do so, we will reverse both orders so that the replication can be filed.
Orders reversed, and cause remanded — the appellee to pay thecosts. *139