198 Md. 45 | Md. | 1951
Lead Opinion
delivered-the opinion of the Court.,
This appeal is from , an order of the Orphans’- .Court of Baltimore City dated January. 10, 1951, directing that;
“Does Albert J. Fleischmann, administrator pendente lite of the estate of Lillie Fleischmann, deceased, conceal or have in his hands and omit to return in his inventory the proceeds or avails of any of the eighty-two items, listed by the complainants in their petition as having been wrongfully withdrawn from the bank account of Lillie Fleischmann, which at the time of her death were the property of the said Lillie Fleischmann? If so, specify which items.”
The proceeding was instituted by petition charging concealment of assets by Albert J. Fleischmann, administrator pendente lite, praying that he be required to answer under oath, to return an additional inventory, and that he be removed as administrator pendente lite. The petition charged that Albert Fleischmann, individually, had been a confidential adviser to his mother for many years, holding a power of attorney over her bank account in the Mercantile Trust Company since 1943. The petition listed eighty-two cash withdrawals from this account during the period from May, 1930 to July, 1947. Lillie Fleischmann died January 15, 1948, leaving two sons as her only next of kin. Two different wills were produced and caveats were filed to each of them. Information as to the withdrawals from her bank account seems to have been obtained from the Trust Company following our decision in Fleischmann v. Mercantile Trust Company, 192 Md. 680, 65 A. 2d 182. The petition charged that these and other funds of the decedent were used for the purchase of securities and investments which do not appear in the inventory filed, and that there is a large amount of property, money, jewelry and other assets unaccounted for.
The administrator pendente lite filed a motion to dismiss on the ground of a lack of interest in the petitioners, which was granted as to Edwin M. Fleischmann. This ruling was reversed on appeal to the Superior Court. The administrator pendente lite then filed an answer cate
“ (1) Did the said Albert J. Fleischmann, administrator pendente lite, receive property and assets belonging to the said Lillie Fleischmann, deceased, at the time of her death, which he now conceals and refuses to account for as part of the estate of the said Lillie Fleischmann, deceased?
(2) Did the said Albert J. Fleischmann, individually, during the lifetime of the said Lillie Fleischmann, deceased, receive property and assets belonging to the said Lillie Fleischmann, deceased, and belonging to the said Lillie Fleischmann, deceased, at the time of her death, which he now conceals and refuses to have accounted for as a part of the estate of said Lillie Fleischmann, deceased ?
(3) What property and assets belonging to the said Lillie Fleischmann, deceased, at the time of her death, does the said Albert J. Fleischmann, individually, or as administrator pendente lite, now conceal and refuse to account for as part of the estate of the said Lillie Fleischmann, deceased ?”
The appellants contend that the issue granted by the Orphans’ Court was too narrow, in that it confined the inquiry to concealment by Albert Fleischmann, administrator pendente lite, and to the specific items of withdrawal set up in the petition by way of illustration. They urge that the issues should be as wide as the allegations of the petition permit. The appellee contends that this court lacks jurisdiction to entertain the appeal and that in any event the Orphans’ Court properly confined the inquiry to the specific items alleged to be in the hands of the administrator pendente lite.
The petition was based upon Section 253, Article 93 of the Code (1939 ed.), which confers jurisdiction upon the Orphans’ Court to hear and determine cases where it is alleged that an administrator “has concealed, or
It has long been established that an appeal from an order dismissing a petition charging concealment, after hearing, lies only to the circuit court or superior court. Worthington v. Herron, 39 Md. 145; Abbott v. Golibart, 39 Md. 554; Baker v. Forsythe, 178 Md. 682, 16 A. 2d 921. In the case last cited Chief Judge Bond pointed out that the statutory provision is a survival of a once common practice, citing Lammott v. Maulsby, 8 Md. 5 (1855). The general right of appeal granted by Section 64, Article 5 of the Code is not applicable in such cases, and it has been said that the remedy set out in Section 254 is exclusive of all other appeals. It has also been held that there is no appeal to this court from an order requiring an administrator to answer a petition charging concealment. Hignutt v. Cranor, 62 Md. 216. The Orphans’ Court has jurisdiction even where the administrator claims title. Linthicum v. Polk, 93 Md. 84, 48 A. 842. If the petition, however, combines matters other than those relating to concealment, such other matters may be the subject of appeal to this court. Stonesifer v. Shriver, 100 Md. 24, 59 A. 139; Baldwin v. Hopkins, 172 Md. 219, 191 A. 565.
In McAvoy v. Renehan, 116 Md. 333, 81 A. 673, it was held that an appeal to this court would not lie from the refusal of the Orphans’ Court to receive the answer of an administrator and to grant his application for issues as to concealment to be sent to a court of law. It was said (p. 387) that the Orphans’ Court “has a judicial
The appellants rely strongly upon the case of Forsythe v. Baker, 180 Md. 144, 23 A. 2d 36. In the previous case of Baker v. Forsythe, supra, this court held that an appeal would not lie from an order of the Orphans’ Court dismissing a petition charging concealment, after hearing. While the appeal was pending, the Orphans’ Court passed an order granting an issue which was transmitted to the law court. An appeal to this court from that order was dismissed, not on the ground that the appeal would not lie, but on the ground that it was not taken in time. A second appeal, from the action of the law court in declining to dismiss the issue after the Orphans’ Court attempted to withdraw it, was dismissed on the ground that the law court had'no right to reject the issue, and the Orphans’ Court had no right to withdraw it after transmittal. This court did not discuss the contention made in the brief that the question
We think the decision in Forsythe v. Baker does not compel the conclusion that an appear to this court will lie from a framing order by the Orphans’ Court in a case of concealment. Since the appeal was not taken in time, it was unnecessary for the court to decide whether Section 254 is applicable in a case where the Orphans’ Court attempted to reverse its final adjudication pending appeal to what proved to be the wrong tribunal. It was contended that the Orphans’ Court exceeded its jurisdiction in granting an issue on a matter that was res judicata. The paraphrase of the language in the Holland case, which omits the significant phrase “any question as to the form of the issues” [167 Md. 608, 175 A. 468], may be an indication that the court was thinking in terms of the Orphans’ Court’s jurisdiction. Cf. Fidelity Trust Company v. Barrett, 186 Md. 483, 487, 47 A. 2d 72.
In the instant case the whole question is as to the form of the issues. Those proposed by the appellants were rejected, and it is difficult to differentiate this rejection from a dismissal of the petition. The appellants are not objecting to the issue granted, nor is there
Appeal dismissed, with costs.
Markell, J., filed the following dissenting opinion.
Dissenting Opinion
dissents on the ground that what was said in the Baker case was correct and should be followed, and the statutes, properly construed, do not produce the incongruous result of splitting appeals, in a case of issues tried before a jury, between the Superior Court, as to the form of the issues, and the Court of Appeals (under Art. 5, Sec. 5) as to the answers.