Scott v. Burch's Adm'x

6 H. & J. 67

• Court: Court of Appeals of Maryland
• Decided: June 15, 1823
• Status: Published

Opinion

The opinion of the court was delivered.by

Dorsey, J.

In deciding on the bills of exceptions, tw& important questions present themselves to the consideration of the court — First, What right did Kinsey Gillings.•. acquire in negroes Rachel, and her t\yo children Louisa and Eliza, in virtue of the order of the orphans court of Washington county in the District of Columbia, directing the property of Jesse Lurch to be delivered up to him,, when considered in connection with his subsequent possession?

Secondly. What was the legal effect of- the oi'der of the. orphans court of the 29th November 1819, by which Kinsey Gittings is directed to deliver up to the plaintiff the said three negroes, with their increase, on the terms therein mentioned? By the act of 1798, ch. 101, sub ch. 14, sec. 11, it is provided, that if any security of an executor or administrator sh,all conceive himself in danger of suffering from bis suretyship, he may apply to the orphans court which granted the administration, and the said court may call on the party to give counter security, to be approved by the court; and if the party so called on, shall not, within a fixed reasonable time, give such counter security, the court may order the property remaining in the hands of such executor or administrator, to be delivered up to such security, and the court may enforce the delivery by process as therein after provided; and an inventory of the property delivered to such security shall be returned without delay, and the property contained in said snitory slis.ll be by the said sefenrify sold, distributed and delivered up, as the case may require, under the immediate order of the court, as if said security were executor or administrator. The court are of Opinion, that a security who obtains the possession of the goods of the in • testate, under an order made pursuant to the provisions of this law, acquires a right to them for the purpose of paying the debts of the intestate, and for the purpose of distribution. The execution of this triist imperiously requires that he should have both the possession and right of property in tire effects; and as this right cannot exist m •association with the previous right of the administrator, the order must, necessarily operate as a divestment or ex-tinguishment of the right derived by the administrator from the letters of administration. If such is the effect of the order, it cannot be contended with success, that upon the death of Giitings, the right of possession and property supervened to the plaintiff The act in terms makes no such provision, and the law cannot imply it ia favour of one who has been judicially deprived of all ownership by her default in not giving the necessary counter security. In what inana'er the property can be affected in the bauds of the executor or administrator of the security, it is unnecessary for the court to decide, as that question is not now subjudice. The next inquiry is, what is the effect of the order of the orphans court of 29th November 1817? By the 15 sub ch. sec. 20, of the testamentary system, (1798, ch. 101,) it is declared that the orphans court shall not, under pretext of incidental power or constructive authority, exercise any jurisdiction whatever, not expressly given by that act or some other law. And to avoid the necessity of a recurrence to incidental or implied authority, the powers of the orphans court, both ia relation to the subject matter of its jurisdiction, and the forms cf Its proceeding, are declared with the most formal and precise minuteness. Does this law then invest the orphans court with the jurisdiction and power of decreeing or ordering the goods, in any event cr on any terms, to be delivered over by the security to the administrator qua administrator? Upon an examination of its provisions no such power Can foe found, and the exercise of such a power of revocation ■can only be countenanced by the doctrine of constructive authority; but recourse to such a principle is emphatically Condemned by tlie express enactment of the statute. Tliis administratrix must therefore be content with- the only re-’ medy which the law furnishes, and that is a special action on the case tb recover damages in case she shall suffer from the misconduct of her security in diminishing 'any part of the property without obtaining an allowance for the same from the court; But evSn supposing that the orphans court had jurisdiction to pass the order of the 39th November 1817, still the plaintiff would have no right to maintain the present action, inasmuch as the order could not of itself so operate as to confer on her the right of possession and property iri the negroes* before it was carried into effect by some one of the means by which that court is authorised to enforce the execution of its own decrees. Under this view of the subject, this court thinks; that Montgomery county court erred in refusing to direct the jury, as prayed by the defendant in his second bill of exceptions, that the plaintiff was not entitled to recover; and that they also erred in declaring to the jury, that after the death of Giltings, the defendant W'as bound, on the demand of the plaintiff, to deliver up the negroes to her. And we also think that the court below erred in refusing to permit the defendant’s counsel to read to the jury the bill of sale, executed by the plaintiff to Jesse Moran, for three of the negroes mentioned in the declaration, as she had not shown a title to those negroes, acquir.cd since the order of the orphans court of the 11th June 1805, which operated to divest her of all previous right. And we are further of opinion, that the court below did not err in the direction which they gave to the jury on the first prayer of the plaintiff, as set forth in the third bill of exceptions. But we dissent from the opinion expressed by the court below on the second prayer of the plaintiff, as set forth in the last mentioned bill of exceptions. They instructed the jury, that if they should be opinion, from tbe evidence, that the terms of sale were not complied with, or offered to be complied with, by Doctor Qffutt, or the purchase money was not paid by him to Gitiings, or that there was no delivery of the said negroes to said Offutt, that the jury may and ought to presume, that the property in the negroes was not divested, but still remained in Gitiings’ hands as part of the property belonging to the estate of Jesse Burch. It cannot escape observation, that the court decided, ilia' the omission of any one of the above cireumsf anees constituted a ground on which the jury , might presume that the sale made of the negroes by Gittings to Offutt, was not a real one. But this decision cannot be supported, as the mere omission óf Gittings to receive the amount of the purchase money, (more especially in a case where six months credit constituted part of the terms of the sale,) cannot, pir se, unconnected with any other circumstances, afford a presumption that the sale was collusive.

The opinion of the court below, on the third prayér of the plaintiff, as set forth in the third bill of exceptions, is correct. We consider tbe law to be too well established, now to be drawn in question, that an administrator cannot, at either a public or private sale, purchase in the goods of his intestate for his own Benefit. But if the goods aró bona fide purchased by a third person for his own use and benefit, without collusion between him and the administra» tor, neither the principles of law nor óqüity preclude the administrator from afterwards acquiring a right in the goods by a subsequent contract with such purchaser. The fourth, prayer of the defendant; as set forth in the third bill of exceptions, was in our opinion correctly rejected by the court below; and the subsequent opinion expressed by the court, though not required by either the plaintiff or defendant, does not appear to be exceptionable.

JUDGMENT reversed.