Donaldson v. Raborg

Bartol, J.,

delivered the opinion of this Court.

Without repeating the facts in this case, about which there is no dispute between the parties, we proceed at once to decide the questions of law presented by the record.

The proceeding was instituted under the 72nd section of the 93rd Article of the Code, which contains the same provisions as the Act of 1820, ch. 174, sec. 3, and must receive the same construction as has been given to the Act of 1820.

To the petition filed in the Orphans’ Court, Donaldson’s executors, the defendants below, pleaded three pleas, upon which the questions argued before us have arisen.

Departing from the order adopted by the counsel in the argument, the defence under the third plea will first be considered. This plea denies the right of the petitioner to maintain the suit, upon the ground that the defendants are responsible only to the next of kin or distributees of Christopher Raborg, deceased ; that no administration de bonis non was necessary, and that the case made by the pleadings *325 is not one within the 12nd section of Art. 93 of the Code, in which the petitioner is entitled to the remedy there provided.

In Alexander vs. Stewart, et al., 8 G. & J., 326 , the Court of Appeals decided that “the Orphans’ Courts have exclusive cognizance in the appointment of administrators de bonis non, and where an executor had not completed his trust, by the payment of all legacies, and the delivery over of property in his hands to the persons entitled, the exercise of the power of appointment was rightful.” In that case there were assets of the testator existing in specie unadministered, and the appointment of an administrator de bonis non, was declared to he indispensably necessary to give title to the distributees, who could derive title through no other channel. So in Scott vs. Fox, 14 Md. Rep., 388, it was held, that letters of administration ought to be granted in case no final distribution has been made under the order of the Orphans’ Court. The principle decided by those eases seems to establish the propriety of the appointment of an administratrix de bonis non in this case.

Muncaster vs. Muncaster, decided at the April term, 1865, is not in conflict with the cases above cited. That was an application to the Orphans’ Court by beirs-at-law or next of kin of a decedent, to compel the executor of an administrator to pass an account of his testator’s administration, in conformity with the 11th section of Art. 93 of the Code ; no administration de bonis non had been granted ; and this Court decided that the Orphans’ Court had jurisdiction to enforce the performance of the duty prescribed by the Code, and that the petitioner being a party in interest had a standing in Court to maintain the suit.

The question whether an administration de bonis non might not become necessary in order finally to settle the estate and make distribution, was not raised or decided.

*326 Here the assets of Christopher Raborg, deceased, were received by Samuel Donaldson, the administrator d. b. n. in money ; by his last administration account, passed on the 25th day of April, 1837, there remained in his hands belonging to the estate the sum of $4,228.76, which the petition alleges and plea admits, remained in his hands at the time of his death. The question is whether money so retained may be recovered by the administratrix d. b. n. by a proceeding under the 72d section of the 93rd Article of the Code. This question, we think, has been conclusively settled by the case of Lemmon vs. Hall, 20 Md. Rep., 168 , in which the construction of the Act of 1820, was established in accordance with the ruling of the Supreme Court in De Valengin’s Adm’r vs. Duffy, 14 Peters, 291 , and of the Court of Appeals in Gardner & Hughes’ Ex’crs vs. Simmes, 1 Gill, 428 . See, also, Sibly vs. Williams, 3 G. & J., 63 .

It is now settled in Maryland, that money remaining.in the hands of an executor or administrator, in that character, at the time of his death, is subject to an order to pay ■over to the administrator d. b. n. Here the petition does not allege that Mr. Donaldson wasted the money, but that he retained it in his hands unwasted, without necessity, that he blended it with his own private property, and made use of it for his own profit.

There is nothing in the plea to show that the money had been wasted or lost, or that it did not remain in his hands as administrator at the time of his death. We are, therefore, of opinion that the third plea is not a good defence to the action.

The first and second pleas rely on the lapse of time, and the Statute of Limitations in bar of the claim.

Strictly, neither laches nor limitations can apply to the petitioner], inasmuch as Mr. Donaldson died in December, 1865, and this petition was filed in June, 1866, soon after *327 letters of administration de bonis non were granted to the adm’x. Until then her right of action had not accrued. Haslett’s Adm’r d b. n. vs. Glenn, 7 H & J., 24. Fishwick's Adm’r vs. Sewell, 4 H. & J., 428 . Owens’ Adm’r vs. Smith, 10 Md. Rep., 67 .

The possession of Mr. Donaldson was that of a trustee for the benefit of the next of kin. It has been correctly-said that “when a trustee does not perform his trust his possession operates nothing as a bar, because his possession is according to his title.” Hovenden vs. Ld. Annesley, 2 Sch & Lef., 633.

Ho final account was passed by Mr. Donaldson, nor any distribution made in accordance with law, which was necessary in order to exonerate the administrator or his personal representatives. See Conner vs. Ogle, 4 Md. Ch. De c, 425, 455. Lowe vs. Lowe, 6 Md. Rep., 354 . Scott vs. Fox, 14 Md. Rep., 396 . Hanson vs. Worthington, 12 Md. Rep., 418 .

It has been argued that inasmuch as the right of action upon the administration bond was barred by lapse of time, the relief sought by the petition ought to he denied. But it is settled that the bar of the Statute goes only to the particular remedy to which it is applicable. See Brent vs. Bank of Washington, 10 Peters, 617 . Farmers’ Bank vs. Iglehart, 6 Gill, 58 .

It does not follow that because no action can be maintained on the administration bond against the sureties, by reason of the words of the Statute of Limitations, that the remedy given to the administratrix de bonis non under the Code, ought not to he granted. A case might arise in which laches and great lapse of time would defeat this remedy as was said in the case of Johnson vs. The Farmers Bank, 11 Md. Rep., 412 . But in the opinion of this Court such a defence cannot prevail in the present case, and, therefore, the first and second pleas were also properly overruled,

*328 ( Decided January 30th, 1867.)

Upon the appeal of the administratrix de bonis non, this Court is of opinion that in the .present aspect of the case, the Orphans’ Court had no power to award interest upon the money claimed. Their authority under the Code is simply to order the payment over of the money remaining in Mr. Donaldson’s hands, as administrator. See Lemmon vs. Hall, 20 Md. Rep., 168 . There-is no provision for enforcing the payment of interest in a proceeding like the the present.

If the petitioner had instituted a preliminary proceeding under sec. 11, Art. 93 of the-Code, to'compel the executors of Mr. Donaldson to render a further account of his administration, or had inserted such a prayer in the present petition, as was done in the case of Mickle vs. Campbell, 10 Md. Rep., 352 , the question of his liability for interest would have arisen, and upon proper proof, interest might have been made a subject of charge in such account; and upon the balance thus ascertained, including principal and interest, the order of the Court passed under the 72nd section would operate.

No such preliminary proceeding has been taken in this case, and in the petition there is no prayer for a further account; there was, therefore, no error in refusing to award the payment of interest upon the money claimed.

The order appealed from will he affirmed with costs to the administratrix de bonis non.

Order affirmed.