State ex rel. Calvert v. Williams

9 Gill 172 | Md. | 1850

Magruder, J.,

delivered the opinion of this court.

The judgment from which this appeal is taken, was obtained in Montgomery county court, in a suit instituted upon a bond given by the appellee as the adminisirator pendente lite of Cramphin.

The suit was originally brought in the name of the State, for the use of the administrator of Cramphin, and upon the death of the administrator, it was entered for the use of the administrator de bonis non.

If the plaintiff at. the time of instituting the action had a good cause of action, the administrator de bonis non, was the person to whom, after the death of the administrator, the estate was to be delivered up, and the suit was then to be prosecuted for his use.

The defendant pleaded, with other pleas, of which no notice need now be taken, that at the time of the institution of the suit in that case, George Calvert, was not the administrator of Cramphin. No issue was joined, when by the agreement of the parties, the cause was referred to Lawrence A. Dawson and Janies W. Anderson; and the agreement to refer proceeds to state sundry matters which are to be adjusted by the arbitrators, and umpire, “if in their opinion the said Richard Williams, is legally responsible in this action for the same.” To this agreement too, there is annexed a proviso, that the liability of the said defendant, ( Williams,) to the plaintiff, Charles, administrator de bonis non, in this or any other form of action, is not admitted, but the same is open before the arbitrators, as fully as in a court of law.

Without attempting to define the precise extent of the powers and duties of the arbitrators, it may be taken for granted, they were authorized to assess any damages of which the administrator de bonis non, properly complained in his replication. Williams, it seems, had been the administrator pendente lite of the estate of Cramphin; the controversy had been determined, the estate in the hands of the administrator pendente lite, had not been delivered up, although it had been demanded by the administrator, and for his use this suit upon the bond of the administrator pendente lite, was brought.

By the award, it appears, that the arbitrators did not attempt to adjust any of the claims referred to them, but leaving them unsettled, awarded in favor of the defendant, simply, because as the award itself states, George Calvert was not the administrator of Thomas Cramphin, competent to institute an action as such, at the time of the impetration of the original writ in this case. It is added, as the reason for this decision, ‘ £his letters of ád ministration on the personal estate of the said Cramphin, having been before that day revoked, by the order of the orphan’s court, and an appeal from the said order, to the Court of Appeals, being then pending and undetermined.” We must collect from this, that the arbitrators were satisfied by the proof laid before them, that George Calvert had been appointed the administrator of Cramphin, before the institution of this suit; and that also before its institution, the orphans court had passed an order that they be revoked. Being convinced of these facts, the arbitrators decided the law to be, that this terminated the right of the administrator, or the right of the State for his use, to institute a suit upon the bond given by the administrator pendente lite, although an appeal had been taken by Calvert from that order, and at the time of the institution of the suit such an appeal waspending and undetermined.

If herein the arbitrators mistook the law, and because of this mistake have given an award in favor of the defendant, and this be shown by the award, the court below had the power and was bound to set aside the award.

The question then is, whether the letters of administration, were yet in force notwithstanding the order of the orphans court, there being an appeal from that order pending at the lime the suit was instituted?

It is the opinion of this court, that the appeal suspended the order of revocation of the orphans court, and the letters of administration were left in full force and effect pending the appeal. The order of revocation certainly did not revive the letters of administration pendente lite. The grant of the letters to Calvert, revoked them, (7 H. and J, 40,) and if the administrator, notwithstanding the appeal, ceased to have authority to take charge of the estate, there was no person who could have such authority. There is no provision in our testamentary system, which countenances the idea that an order of an inferior court, such as this, has, until it is reversed, all the force and effect which it will have when it is affirmed by the court of last resort.

George Calvert, was the administrator, while the application for a revocation of the letters was pending in the orphans court, and while his appeal from the order of that court was pending, he continued to be administrator, possessing all the powers and bound to perform all the duties of an administrator.

If the party at whose instance the order was passed, instead of waiting until the letters were granted, had objected to the granting of them, and had appealed from the order granting them, then, while that appeal was pending, the letters could not have been granted; (Offutt and Clagett vs. Gott, 12 G. & J., 385,) and for the like reason the letters in this case remained in full force until it is decided-, upon the appeal, that the person to whom they were granted, is no longer to be the administrator.

We can discover no reason why the law, as laid down in the authority to which we have been referred, (4th Sergeant and Rawle, 202, and 8th Smedes and Marshall, 211,) should not be considered the law of this State.

Such would have been the law of the case, if the suit had been brought in the name of Mr. Calvert, but the suit is brought in the name of the State, for a breach of the condition of the bond given to the State. The damages when recovered would he for the use of the person who is aggrieved by the alleged' breaches.

One and a material object of an immediate appeal is to prevent a revocation of the letters of administration,- which had already been granted. If the appellant succeeds, the order from which he appealed is a nullity and can have no effect in the administration of the estate.

Judgment reversed with costs, award set aside, and procedendo to issue.

JUDGMENT REVERSED AND PROCEDENDO.