Townshend v. Brooke, 9 Gill 90

Townshend v. Brooke

9 Gill 90 | Md. | 1850

Martin, J.,

delivered the opinion of this court.

By the 20th section of the 15th sub-chapter of the testimentary system of 1798, ch. 101, the orphans courts of this State are inhibited from the exercise of any power or jurisdiction, not expressly given by legislative enactment. They are tribunals confessedly special, and limited in their jurisdiction, without any constructive or incidental power, and were so treated and considered by the Court of Appeals in the case of Scott vs. Burch, 6 Har. and John., 67, and Brodess vs. Thompson, 2 Har. and Gill, 126. In the last case, the court said:

t£ The orphans courts derive their powers mostly from statutory provisions, and are tribunals limited in their jurisdiction, unable to exercise any authority whatever, not expresssly givers by law.”

After a careful examination of the acts of Assembly, bearing upon the powers and jurisdiction of the orphans courts, we can find no clause or provision which can be interpreted as conferring upon those tribunals, authority to direct a collector pendente lite, to pay a sum of money to the persons named as executors, in a paper purporting to be a last will and testament, to be appropriated as fees to counsel employed to resist a caveat interposed before the paper in controversy was admitted to probate, and consequently before letters testamentary were committed to the persons named therein as executors. It is impossible, therefore, to do otherwise than pronounce the order of the orphans court of Prince George’s county, of the loth of November, 1849, to be inoperative and void upon the ground that there was an absolute want of power in that court to pass it. The court being inhibited from the exercise of any incidental or constructive authority, and the power to pass an order like that of the 15th of November, not having been expressly conferred.

This case is clearly distinguishable from that of Compton vs. Barnes, 4 Gill, 55. In Compton and Barnes the caveat was not filed until after the will of John Barnes had been admitted to probate, and letters testamentary granted to the executors, in whose favor the order of the orphans court was passed. *92Under such circumstances, it was the plain and imperative duty of the executors to appear to the caveat, for the purpose of resisting it, and vindicating the will. And authority in the orphans court to pass the order which was the subject of contestation in that case, was expressly granted by the second section of the 10th sub-chap, of the act of Assembly 1798, ch. 101.

ORDER REVERSED WITH COSTS.