Bacon v. Howard
| Decision Date | 28 October 1863 |
| Parties | THOMAS M. BACON & HARRIETT E. SULLIVAN, Admr's of JAMES T. SULLIVAN, v. GEORGE W. HOWARD, et al. |
| Court | Maryland Court of Appeals |
APPEAL from the Orphans' Court of Harford County:
This is an appeal from an order of the Orphans' Court of Harford County passed on the 5th day of February 1862. The case is stated in the opinion of this Court.
The cause was argued before BOWIE, C. J., and BARTOL GOLDSBOROUGH and COCHRAN, J. O. Scott and H. D. Farnandis for the appellants:
It would seem to be established, that where a trustee or executor has used good faith in the exercise of a fair discretion, in the same manner as he would ordinarily do in regard to his own property, he ought not to be held responsible. 2 Story's Eq., sec. 1272, & c Thompson vs. Brown, 4 Md. Ch. Dec., 619. Adams vs. Claxton, 6 Ves., 22, Gwyn vs. Dorsey, 4 G. & J., 460. Chase vs. Lockerman, 11 G. & J.,
The case of O'Hara vs. Shepperd, 3 Md. Ch. Dec., 315; and Carlysle vs. Carlysle, 10 Md. Rep., 440, it is suggested, do not apply to this case. They are decided on the Acts of Assembly, requiring guardians to make investments under the order of the Orphans' Courts.
The Act of 1831, ch. 315, authorizes the Orphans' Courts in their discretion, ex officio, or on application, to direct executors and administrators to bring into Court, or place in bank, or invest in bank stock any money, & c. To pass such orders is not made obligatory, but is discretionary. Ex-parte Shipley & Wife, 4 Md. Rep., 493. Porter vs. Timanus, 12 Md. Rep., 283.
In reference to, and illustrative of the true interpretation of the Act of 1831, ch. 315, it is suggested that this Act confers upon the Orphans' Courts powers analogous to those had by Courts of Equity.
It does not require administrators to apply for orders or directions to deposit, or subject them to any penalty for failing to make such application.
If the Orphans' Court gives such directions the administrator is bound to obey; if such directions are not given ex officio or on application, the responsibility of the administrator is not varied.
The test of such care and prudence is that it is such as the party would exercise in regard to his own property, and in conformity with the practice of prudent and intelligent business men.
H. W. Archer, for the appellees, argued:
1st. That the appellants having made their deposits, without any order of or authority from the Orphans' Court, did so at their own risk, and are responsible for the loss, even if it were conceded that said firm was a banking house of good standing and credit.
2nd. That even if the discretion to select the place of deposit for funds belonging to the estate, were vested in the administrators, they have not exercised such care and caution as will release them from responsibility for the loss. Hall vs. Purnell, 2 Md. Ch. Dec., 138. 2 Story's Eq., secs. 1274, 1776. O'Hara vs. Sheppard, 3 Md. Ch. Dec., 315. Carlysle vs. Carlysle, 10 Md. Rep., 440. Act 1831, ch. 315, secs. 4 and 5.
The appeal in this case is taken from an order of the Orphans' Court of Harford County, passed on the 5th day of February 1862, on the petition of the appellees.
The petitioners prayed the Court to order and direct the appellants to charge themselves as administrators of James T. Sullivan with the sum of twenty-seven hundred dollars, admitted by the appellants to have been deposited with the banking house of Josiah Lee & Co., which, at the time of the deposit, was composed of Garrard, Grover and others. That the said sum of money has been lost by the failure of the above firm, and that the deposit was made by the appellants without any order or authority of the Orphans' Court.
From the earliest period of the testamentary system, it has been the sedulous purpose of the Legislature to hold persons standing in a representative position to a just accountability; while at the same time, ample provision is made in that system for their official protection.
No person who seeks to hold this relation can obtain it, without giving bond and security for the faithful execution of...
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Goldsborough v. De Witt
...17 A. 272. Compare Real Estate Trust Co. v. Union Trust Co., 102 Md. 41, 54, 55, 61 A. 228; Mickle v. Cross, 10 Md. 352, 362. [d] Bacon v. Howard, 20 Md. 191. See Ex Walsh, 26 Md. 495. Compare Carey v. Safe Deposit & Trust Co., 168 Md. 501, 518, 178 A. 242. --------- ...
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Fay v. Fay
...That conclusion is said to be required by the construction placed upon chapter 315 of the Acts of 1831, Code, art. 93, § 251, in Bacon v. Howard, 20 Md. 191. statute provides: "The orphans' court may, in their discretion, and whenever it shall seem proper to them, either ex officio or upon ......
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