State v. Hart, 57 Md. 234

57 Md. 234 | Md. | 1881

Ritchie, J.,

delivered the opinion of the Court.

This appeal is from the decision of the Court below, sustaining the demurrer to plaintiff’s declaration.

The appellant, the plaintiff below, claims in his narr. that, as administrator d. b. n. of Arthur McCourt, he is entitled to recover the sum of $3500, of the executrix of Samuel Hart, deceased, the former executor of said McCourt, because the said Hart as such executor, had collected that amount of money, which neither he in his lifetime had accounted for or distributed, nor his said executrix, although requested so to do, had since paid over to the plaintiff.

The only questions to be determined in disposing of this case are, first: whether ás a necessary preliminary to the maintenance of his suit, the plaintiff was required to procure an order by the Orphans’ Court, for the payment of the said money to him,, under the provisions of the Act of 1820, ch. 174, sec. 3, embodied in the Revised Code, Article 50, sec. 109 ; and secondly, whether the passage of such an order should have been averred in his declaration.

That such an order was indispensable to plaintiff’s recovery is apparent, we think from the language of the statute referred to. It reads thus:

“ The Court shall on the application of the administrator de bonis non, order the administrator of a deceased administrator, to deliver over to him all the bonds, notes, accounts and evidences of debt, which the deceased administrator may have taken, received or had as administrator at the time of his death, and also to pay over to him the money in his hands as such, on or before a certain day; and upon proof of the service of such order, and the neglect or refusal of the administrator to comply therewith by the time therein specified, the Court may order the bond of the’deceased administrator, or of the administrator so refusing, or both of them, to be put in suit by the administrator de bonis non.”

The construction heretofore given the Act of 1820, ch. 171, sec. 3, by the Court of Appeals clearly establishes the necessity of the order described, to enable an administrator d. b. n. to sue in a case like the present one. ,

In West vs. Chappell, 5 Gill, 228, Archer, C. J., in delivering the opinion of this Court in a similar suit, says of this Act of Assembly: “ ’Chat Act in authorizing the Court to pass an order for the delivery over to the administrator d. b. n. of the property therein described, impliedly clothed that Court with authority to enquire as preliminary to such order into the fact whether the property was administered or unadministered. It is to be remarked that the Act does not vest the title to such property in the administrator d. b. n.; nor does it give the right of possession to him, except upon the Order of the Orphans’ Court. The Act is evidently founded on the idea that the property therein described may be unadministered property, but it does not treat it absolutely as such, the Orphans’ Court being authorized, not directed, to pass the order on application. Until such order is obtained from the Orphans’ Court, upon examination had by them, the title remains in the deceased executor or administrator.”

And in Johnson, Adm’r d. b. n. vs. Farmer’s Bank of Maryland, 11 Md., 414, it was expressly decided that an administrator d. b. n. has no right to proceed for the recovery of money belonging to the estate of the intestate, and in the hands df the first administrator at the time of his death, without first obtaining an order from the Orphans’ Court, as required by the Act of 1820, ch. 114, through which Act alone his right to maintain an action therefor is derived.”

Of similar purport are the cases of Neal vs. Hagthrop, 3 Bland, 562-3; Lemmon vs. Hall, 20 Md., 171, and Beall vs. New Mexico, 16 Wallace, 542.

We are clearly of opinion, that the plaintiff had no right to proceed for the recovery of the money sued for in this action, without having first obtained an order from the Orphans’ Court for its delivery to him.

As to the other ground of the demurrer, that the plaintiff had not averred in his narr., the passage of such an order, it must be held good.

Under the Act of 1820, ch. 114, from which alone the plaintiff’s right to proceed is derivable, he acquired no title to the money by force of his mere appointment as administrator d. b. n., nor does that Act confer even the right of possession to it except upon the passage of an order by the Orphans’ Court, in the exercise of its judicial discretion after due application and inquiry made:

This order being indispensable to his right of action, and the mere setting out of his special capacity as administrator d. b. n. not of itself importing his right to the money, or implying that the Court had so exercised its option as to grant him the order, we think the narr. was defective. It was a material averment, and, “ in pleading, material facts must not be left to inference.” Scott vs. State, 2 Md., 291, where the omission to aver that the trustee had notice of the audit and its ratification was deemed fatal.

(Decided 21st July, 1881.)

While it is a general rule of pleading that matter which should come more properly from the other side need not be stated, it is indispensable that the party pleading establish a prima facie charge or answer. 1 Ghitty on PI., 222. And so Stephen in his work on Pleading, while reciting the general rules, that it is not necessary to state matter which would come more properly from the other side, nor to allege circumstances necessarily implied, on page 352, lays down this qualification: “ But where the matter is such that its affirmation or denial is essential to the apparent or prima facie right of the party pleading, there it ought to be affirmed or denied by him in the first instance, although it may be such as would otherwise properly form the subject of objection on the other side.”

The judgment below must be affirmed.

Judgment affirmed.