Gunther v. State ex rel. Bouldin

31 Md. 21, 1869 Md. LEXIS 74

Opinion

Miller, J.,

delivered the opinion of the Court.

The Orphans’ Courts of the State have unquestioned jurisdiction to appoint guardians to minors, and when they have in any instance exercised this power, and the guardian has given bond, it does not lie in his mouth or in the. mouths of his sureties to deny that he is guardian, or to aver the ward had no property subject to guardianship, even if the having of. property be essential to the validity of the appointment. Fridge vs. The State, use of Kish, 3 G. & J., 114, is conclusive authority for this proposition. To this extent the sureties are clearly bound by the recital in the bond. But the appellants assert the further proposition that as sureties they are not responsible for any property their principal may have received as guardian without competent legal authority, and to which the w'ard had no title or claim during his minority. To the position thus broadly stated no valid objection can be made, for it is a principle too well settled to admit of question that the liability of a surety cannot be extended beyond the terms of the engagement into which he has entered. As against him the contract cannot be carried beyond its strict letter; it cannot be extended by equitable construction or implication. Chase vs. McDonald & Ridgely, 7 H. & J., 193; Strawbridge vs. Balt. & Ohio R. R. Co., 14 Md., 366.

This presents the inquiry, was the money for which the appellants deny their responsibility lawfully placed in the hands of their principal? And this depends upon the further question, had the Orphans’ Court jurisdiction and authority to pass the order of the 4th of February, 1867, empowering the administrator c. t. a. to transfer to the guardian of the legatee the legacy of $2,000 bequeathed by Watchman’s will to his adopted son, in case he attained the age of twenty-one years? By the terms of the will the legacy was clearly contingent, and to be paid to the legatee only in the event of his attaining majority. It was a case, therefore, in which the duty of the administrator and the authority of the Court are pointed out and prescribed by the 10th section of the 93d Article of the Code, which provides that:

“ Whenever, under the provisions of a will, it shall be necessary for an executor or administrator cum testamento annexo to retain in his hands the personal estate, or any part thereof, or where money or some other thing is directed to be paid at a distant period or upon a contingency, atiy Court of Equity in the city or county, or the Orphans’ Court, shall have the power, on the application of such executor or administrator, or of a party interested, to decree or give directions thereto; and it shall be the duty of such executor or administrator to apply to the said Court of Equity or the Orphans’ Court, and the said Courts respectively shall have full power to decree or direct what part of the personal estate shall be retained or appropriated for the purpose, and in what manner it shall he disposed of and the legacy or benefit intended by the will shall be secured to the person to be entitled at a future period or contingency, and how the necessary part of the personal estate to be appropriated for the purpose shall be prevented from lying dead or being unproductive, and how it shall be applied agreeably to the intent of the will or the construction of law in case the contingency shall not take place.”

No case has been cited in which this section or the corresponding provision in the Testamentary Act of 1798, has been construed, and we are aware of no instance where it has been directly brought before the Appellate Court for full construction. It was simply referred to in Rieman vs. Peters, 2 Md., 104, as protecting a clause in a will, which directed executors to keep the estate together until after the death of the widow, for the purpose of paying her an annual allowance, from the objection that it contravened the provisions of our Testamentary Law.

It is obvious the main design of the section, and the object to be attained by the exercise in every case of the power thus conferred, is the preservation of the fund so as to secure it to those who, under the will, or by law, shall be entitled to receive it upon the arrival of the prescribed period, or the happening or nonhappening of the designated contingencies. To this end, it is made the duty of the executor or administrator having the money or property in hand, to apply to the Court for direction in the premises, and on such application the Court is clothed with “full power to decree or direct in what manner it shall he disposed of ” to effect the contemplated purpose; but the mode of disposition for safe keeping and security is not prescribed, but left, in each ease, to the sound discretion and judgment of the Court.

In view of this comprehensive language and the ample authority given without designation of any particular mode or manner of investing, securing, or safe keeping, we cannot perceive why, in a case like the present, where a legacy is given to an infant, but which he is not to receive, unless he attains full ago, it is not competent for the Court to appoint a guardian for him, require the guardian to give bond, and then direct the administrator to pay the money over to the guardian to be, by him, kept and preserved, upon the responsibility of his bond, and paid to the ward, if he attains majority, and if not, then to the parties entitled thereto, under the will, or by law. The guardian so appointed is as much an officer of the Court as the administrator, and equally subject to its authority. The funds in his hands are, at all times, equally subject to the order and control of the Court, as if they had been suffered to remain in the hands of the administrator. Code, Art. 93, sec. 287. We have no doubt, the simpler, better, if not safer practice in all cases to which the section under consideration applies, would be to order the executor or administrator- himself to retain the funds, and invest them in some safe security, to be designated by the Court, but we are not prepared to say the mode here adopted is wholly without sanction of law, and the order in question utterly void for want of jurisdiction in the Court to pass it. The Orphans’ Courts are tribunals of special and limited jurisdiction, deriving their powers mostly from statutory provisions, and are inhibited from exercising, under pretext of incidental or constructive authority, any jurisdiction not expressly conferred by law, but this does not require the statutes, expressly conferring jurisdiction upon them, to receive any different or more restricted construction than other law's. Ry this particular provision the same authority is conferred upon the Orphans’ Courts as upon the Courts of Equity. The two tribunals are placed on the same footing, and clothed with the same powers, and the order before us must certainly protect the administrator. He was bound to apply to the Court for directions, and has done so, for aught that appears, in good faith, and in the honest discharge of his duty. The Court to which he applied had undoubted jurisdiction to direct what he should do with the money, and have passed this order in the premises, which he has obeyed. It is not the case where he administers the estate in pais, ascertains who are legatees or distributees, and pays at his peril, but where, by special provision, he is commanded to seek the directions of a Court, which the law has clothed with full power to direct, in what manner he shall dispose of the fund.. In obeying the order so passed he was acting under the authority of a Court of competent jurisdiction, and is as fully protected as if he had sought the direction, and obeyed the order of a Coui't of Equity.

The order being effective to protect the administrator in paying, it cannot be said the party to whom the money was paid received it, without lawful authority. We are satisfied the guardian lawfully received the money, and it follows the sureties on his bond are responsible for the faithful discharge of his duty in keeping it.

It is to be observed we decide the order to have been passed in pursuance of the power conferred on the Orphans’ Court by this 10th section, and not as an adjudication construing the will and determining the legatee was entitled to receive the legacy before he attained twenty-one. The former, as well as the newly appointed guardian, if he succeed in receiving it, held and will hold the fund, subject to the Court’s order and control, under the authority conferred by this, as well as the 237th section, and in accordance and not in conflict with the provisions of the will.

(Decided 16th June, 1869.)

It is alleged there is error in the order of the 11th of December, 1868, because it does not fix a reasonable time for the former guardian to pay over the money to the new guardian, and this is said to be in violation of the requirement of section 189, under which the order was passed. But this provision, like all others of similar character, may be waived by the party for whose benefit it was introduced. It was so waived in this case by the antecedent confession of the guardian that he was insolvent and unable to pay the money.

Any party who may deem himself aggrieved by any order or decree of the Orphans’ Court may appeal therefrom, and it has been decided that any one on whose interests any such order may have a tendency to operate injuriously is a party entitled to appeal. Parker and Wife vs. Gwynn, 4 Md., 423. The orders complained of in this case directed suit to be brought on the guardian’s bond, and passed the account of the guardian showing his indebtedness as such. This account would be prirnd facie evidence against the sureties in a suit on the bond, and to this extent would have a tendency to operate injuriously upon their interests. Besides, they had the right and were interested in preventing the passage of any order directing the bond on which they were sureties to be put in suit. The motion to dismiss the appeal is therefore overruled, but as we find no errors in the orders appealed from they must be affirmed.

Orders affirmed.