Garitee v. Bond

Decision Date07 December 1905
CourtMaryland Court of Appeals

Appeal from Orphans' Court of Baltimore City; Myer J. Block, Wm J. O'Brien, and Harry C. Gaither, Judges.

Application by Charles E. Garitee for letters testamentary on the estate of Sophia V. Chambers, deceased. From an order denying the application, on the petition of William A. Bond, the applicant appeals. Reversed.


Joseph W. Bristor and Thomas C. Ruddell, for appellant.

W Ashbie Hawkins, for appellee.


The appellant was named as executor in the last will of Sophia V Chambers, late of Baltimore City. Upon his application to the orphans' court of that city for letters testamentary upon her estate, the appellee, claiming to be the adopted son of the testatrix, filed a petition asking that the letters be refused, because the appellant had been convicted of, and imprisoned for, an infamous crime, and had been disbarred as an attorney by the supreme bench of Baltimore City for unprofessional conduct, involving moral turpitude. The appellant answered the petition, denying that he had been convicted of any infamous offense, or that he was not a fit and proper person to act as executor, and insisting that the matters alleged in the petition would not justify the court in refusing to grant him letters testamentary. The record contains no evidence touching the appellant's alleged disbarment by the supreme bench, nor is that allegation adverted to or noticed in the order appealed from; but there does appear in the record a transcript of proceedings from the District Court of the United States for the District of Maryland showing his indictment and conviction for a violation of the act of Congress approved June 27, 1890, c. 634, § 4, 26 Stat. 183 [U.S.Comp.St.1901, p. 3231]. That act provides as follows: "No agent, attorney or other person engaged in preparing, presenting or prosecuting any claim under the provisions of this act, shall directly or indirectly, contract for, demand, receive or retain for such services in preparing, presenting or prosecuting such claim, a sum greater than ten dollars, which sum shall be payable only upon the order of the commissioner of pensions by the pension agent making payment of the pension allowed; and any person who shall violate any of the provisions of this section or who shall wrongfully withhold from a pensioner or claimant the whole or any part of a pension or claim allowed or due such person or claimant under this act shall be deemed guilty of a misdemeanor and upon conviction thereof, shall for each and every offense be fined not exceeding $500 or be imprisoned at hard labor not exceeding 2 years or both in the discretion of the court."

The indictment in the District Court charges the appellant with having, in violation of the statute, unlawfully demanded and received from a pensioner for prosecuting his claim for the pension the sum of $12, which was not paid to him upon the order of the commissioner of pensions by the pension agent making payment of the pension. It does not appear from the proceedings whether the traverser charged the pensioner $12 in addition to the $10 fee contemplated by the law, but it does appear that the $12 were collected from the pensioner in violation of the statute.

The orphans' court, upon a hearing of the matter thus presented to it, passed the order appealed from on July 12, 1905, declaring that the appellant "be, and he is hereby, removed as executor of the will of Sophia V. Chambers, he having been convicted of an infamous crime, and that letters testamentary to him be refused." It is conceded that the orphans' court in passing this order acted in exercise of power supposed to have been conferred upon it by section 51, art. 93, of the Code of Public General Laws, which provides as follows: "If any person named as executor in a will shall be at the time when administration ought to be granted under the age of eighteen years or of unsound mind incapable according to law of making a contract or convicted of any crime rendering him infamous according to law, or if any person named as executor shall not be a citizen of the United States, letters testamentary or of administration may be granted in the same manner as if such person had not been named in the will."

Without pausing to consider the propriety of the form of the order appealed from, we pass to the discussion of the most important question presented by the record, which is whether the offense of which the appellant was convicted in the federal court was an infamous one, within the meaning of section 51, art. 93, Code Pub.Gen.Laws. The authorities differ in their definition of an "infamous crime." Some of them rely for that purpose upon the character of the crime with reference to its degree of moral turpitude, while others hold that the true test is the nature of the punishment inflicted for the commission of the offense. The definition has in some instances been made to depend largely upon the connection in which the designation "infamous" was applied to the offense and the purpose intended to be accomplished by its use. Thus, in construing the provision of the federal Constitution which prohibits prosecution for "a capital or otherwise infamous crime unless on a presentment or indictment of a grand jury," the Supreme Court of the United States in the habeas corpus case of Ex parte Wilson, 114 U.S. 422, 5 Sup.Ct. 935, 29 L.Ed. 89, held that the provision must be considered, not merely from the standpoint of the character of the crime, but also from the nature of the consequences to the accused if he...

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