Slattery v. Smiley

25 Md. 389 | Md. | 1866

Goldsborough, J.,

delivered the opinion of this Court.

The appeal in this case is taken from an order or decree of the Orphans’ Court of Baltimore city, passed on the 9th day of November, 1865, revoking the guardianship of the appellant, and appointing the appellee guardian to Mary Jane McGrath. The case was heard on petition, answer, replication and the testimony set out in the record.

The jurisdiction of the Orphans’ Courts to remove a guardian is derived from the 232nd section of the 93d Article of the Code. That section provides that the Orphans’ Courts “ may, on the application of an infant, or any person in his behalf, suggesting improper conduct in any guardian, either in relation to the care and management of the property or person of any infant, inquire into the same, and at their discretion remove such guardian,” &c.

The appellant was appointed guardian in October, 1862, and the petition of the appellee was not filed until the 7th day of October, 1865. There was no appeal from the order of the Orphans’ Court by which the appellant was appointed guardian; and this Court said, in the ease of Lefever vs. Lefever, 6 Md. Rep., 478, that the act of the Court, in making an appointment of guardian; being the act of a Court oi competent jurisdiction, ought to be supported by every legal intendment, assuming, as we are bound to do, that the first appointment, coming before us thus incidentally, was legally and properly made. But the point before us is the propriety of the Court’s action in revoking the guardianship of the appellant. By the 232nd section of the 93d Article, any application to remove a guardian, according to our construction of that section, must allege impioper conduct on the part of the guardian, either in relation to the care and management of the property or person of the infant; and such an allegation must be sustained by proof.

We have examined the appellee’s petition and find no allegation whatever of improper conduct on the part of the appellant since his appointment. "Whatever influence the facts set out in the petition might have had upon the action of the- Orphans’ Court when the appellant was appointed, we are not called on now to decide. But the appellee contends that the removal of the appellant was within the discretion of the Orphans’ Court, and, therefore, no appeal will lie. By the £9th section of the 5th Article of the Code, it is provided that “in all decrees, orders, decisions and judgments made by the Orphans’ Courts, the party who may deem himself aggrieved by such decree, order, decision or judgment, may appeal to the Court of Appeals,” &c. This comprehensive language will certainly embrace this case, especially as the petition does not allege, or the evidence show, any improper conduct on the part of the appellant, therefore, the discretion exercised by the Court was not a sound, legal discretion, but arbitrary and subject to review by this Court on appeal.

Finding that there was error in the decree of the Orphans’ Court, tbe same will be reversed with costs in both Courts to the appellant, and the petition dismissed.

(Decided July 12th, 1866.)

Decree reversed.