Taylor v. Bruscup

Bowie, C. J.,

delivered the opinion of this Court:

In a case between the same parties, decided by this Court on the 2d of March, 1867, an order in the nature of a supersedeas was issued by this Court, suspending proceedings pending this appeal. The question now arises on the appeal taken the 26th October, 1866, from the original decree of the Orphans’ Court, requiring the appellants to appear'and bring into that Court the sum of $1,818.33, alleged to have been withdrawn by the appellant Margaret, on the 28th of September, ult., from the Eutaw Savings Bank, by virtue of a certificate of Deposit, of which the following is a copy :

14,096. Joseph Henry, Margaret Taylor, and the survivor of them, subject to the order of either of them.

1866.

April 20 — Rec’d eighteen hundred and fifty dollars. ...... $1,850 00

E. T. Owens.

June 2 — Paid fifty dollars. . . . 50 00

Balance. . . 1,800 00

April 20 — Interest to June 1st,’66. . 33

Sept. 28 — Interest. .... 18 00

$1,818 33

Paid to Margaret Taylor, Sept. 28th, 1866.

*225 The power of the Court to pass this order, is said to he derived from the 238th section of the 93d Article of the Code of Public General Laws. This section authorizes an administrator, if he shall believe any person conceals any part of the decedent’s estate, to tile a petition in the Orphans’ Court alleging such concealment, and the Court shall compel an answer on oath, and if satisfied upon an examination of the whole case, that the party charged has concealed any part of the personal estate of the deceased, may order the delivery thereof to the administrator, and may enforce obedience to such order by attachment, imprisonment, or sequestration of property. This section is, “pro tanto,” a transcript of sec. 12, ch.t115, of the Act of 1831, to which was annexed a proviso to the effect, that in case either party, after answer put ixi on oath, shall require it, the Court shall direct an issue or issues to he made up and seat to any Court of law which may be most convenient under all circumstances for trying the same, as provided in the Act of 1798, ch. 101, to which it was a supplement.

A similar provision, applying to all issues raised before the Orphans’ Court by petition and answer, is embodied in the Code. If the parties to this controversy had desired to avail themselves of the benefit of issues, to be tried by a jury, could any issue involving the fact of concealment have been properly framed upon the petition and answer filed in this case ? If not, the power of the Court must be found in some other section of the Code. Concealment is the ground of jurisdiction in such cases in the Orphans’ Court as essentially as accident, fraud or mistake are grounds of jurisdiction in a Court of Equity ; and in both Courts the facts giving jurisdiction must be alleged in express or equivalent terms.

The Code, Article 93, Section 252, declare s: The Orphans’ Court shall not, under pretext of incidental power or constructive authority, exercise any jurisdiction *226 not expressly conferred by law.” This is but a statutory recognition of a principle of the common law, that Courts of special limited jurisdiction must be confined to the express letter of their authority.

The petition of the appellees does not impute any concealment to the parties. There is an allegation that the trunk of the deceased was opened after his death and the bank-book taken out, which allegation is traversed and facts alleged to show the subject matter in dispute was not the property of the deceased, but of the respondents ; and when the certificate of deposit is examined “per se,” it certainly shows & prima facie right of possession, if not of property, in one of the appellants.

The argument of the appellee, that the word “ conceal” is manifestly the synonym of withholding, is not sustained by any lexicographer we have consulted, or the popular sense of the term. Secrecy is an essential ingredient of the act of concealment. “ To hide dr withhold from observation, to cover dr keep from sight,” are the meanings technically and popularly conveyed by the word “conceal.” It can scarcely be imagined that the extraordinary power of requiring an answer upon oath, with the summary process of attachment, sequestration and commitment, were to be exercised by a Court of special limited jurisdiction in every case, in which the administrator or executor should allege a third person withheld property which belonged to the estate of the deceased.

It was only in cases where concealment rendered the act quasi criminal, and the usual remedies at law or in equity, difficult or impossible, that this peculiar jurisdiction was granted to the Orphans’ Courts. A different interpretation would revive the pretensions of the spiritual Courts, which by entertaining suits “pro laesione fidei,” attempted to exercise the powers and jurisdiction of Courts of Equity, “until finally prohibited by the *227 unanimous concurrence of all the Judges.” 3 Chitty’s Black., 52.

(Decided 18th June, 1867.)

In the language of Lord Coice, “these particular jurisdictions, derogating from the general jurisdiction of the Courts of common law, are ever strictly restrained, and cannot be extended further than the express letter of their privileges will most explicitly warrant.” 2 Inst., 543, cited in 3 Black. Com., 85, in margin.

The evidence tending to show that Mrs. Taylor was the trustee of the fund, for the benefit of the decsased or his next of kin or devisees, concedes the question of concealment. If she occupies this relation to the fund, she is legally entitled to its possession, and accountable in a Court of Equity for the faithful administration of it.

The Orphans’ Court has no jurisdiction over matters of trust and confidence. The decree of the Orphans’ Court being erroneous for want of jurisdiction, it is unnecessary to examine the testimony introduced by the parties to support their several pretensions.

Decree reversed with costs to the appellants.