Linthicum v. Polk
| Decision Date | 07 March 1901 |
| Citation | 48 A. 842,93 Md. 84 |
| Parties | LINTHICUM et al. v. POLK et al. |
| Court | Maryland Court of Appeals |
Appeal from superior court of Baltimore city; Henry D. Harlan Judge.
"To be officially reported."
Suit by Mary E. Polk and others against Helen A. Linthicum and others, as executors of the estate of Gabriel D. Clark deceased. From a decree of the superior court of Baltimore city reversing an order of the orphans' court dismissing the petition, defendants appeal. Dismissed.
Argued before McSHERRY, C.J., and PAGE, PEARCE, FOWLER, BOYD, JONES and BRISCOE, JJ.
Thos R. Clendinen and I. Chas. Linthicum & Bro. for appellants.
Jas. P. Gorter and H. Arthur Stump, for appellees.
The appellees filed a petition in the orphans' court of Baltimore city, alleging that Helen A. Clark, now Linthicum, who is one of the executors of Gabriel D. Clark, had taken possession of, concealed, and has "in her own hands, and has omitted to return" in the inventories to the court, certain silverware, clocks, jewelry, and other articles mentioned. Mrs. Linthicum was the widow at Gabriel D. Clark when she married J. Charles Linthicum. It is also alleged that on November 1, 1896, she came into possession of $2,000, and on November 9, 1896, of $300, belonging to said Clark, "but she has omitted to return said money, either in any inventory or list of debts filed in this court, but concealed and withholds the same." The petition prays that Helen A. Linthicum be required to bring into court the articles and money, together with all property belonging to the estate of Gabriel D. Clark, and that she and Gabriel D. Clark, Jr., her co-executor, be required to return an additional inventory of the said articles and money and of all other assets omitted. A citation was then asked for against Mrs. Linthicum and Gabriel D. Clark, Jr., executors, and Mr. and Mrs. Linthicum individually. Gabriel D. Clark, Jr., filed an answer admitting that the articles named in the petition belonged to their testator, and that since his death Mrs. Linthicum has had them, and, as she claimed them as her own, he did not have them included in the inventory. He also says he is informed that the two sums of money came into possession of Mrs. Clark, but he does not know what disposition she made of them, and submits to the passage of such order by the court as to it may seem proper. Mrs. Linthicum, as executrix, and individually with her husband, filed an answer, in which they deny the concealment of any articles, and also deny that any silverware, clocks, and jewelry in their possession belonged to the estate. They admitted that they had a few articles belonging to the estate which she had retained, on the authority of her co-executor, at the appraised value, as she supposed she had the right to do; but, upon being informed that they would have to be sold at public auction, sent them to the auction rooms. They answered the allegations as to the $2,300 by alleging that Helen A. Clark collected the two sums of money during the lifetime of Gabriel D. Clark, at his request, which she paid to him, and they were by him expended and disposed of in his lifetime. In an amended answer they admit having possession of a buffet and four busts, which she asked to be allowed to her as a part of the $75 a widow is entitled to under section 299 of article 93 of Code, and alleged that certain jewelry, silverware, and articles named therein were the property of Mrs. Linthicum, and, as she claims title to them, the orphans' court had no jurisdiction over the matter. Mr. and Mrs. Linthicum filed a motion to dismiss the petition so far as the same is against them as individuals and as far as they are concerned therein in their individual capacity. The orphans' court passed an order dismissing the petition for want of jurisdiction, and requiring the petitioners to pay the costs. From that order an appeal was taken by the petitioners to the superior court of Baltimore city, which court reversed the order of the orphans' court, and remanded the case for further proceedings. From the decree of the superior court this appeal was taken, and the question before us is whether the orphans' court had jurisdiction. If it had, then the decision of the superior court on the appeal to it was final, and cannot be reviewed by us; but, if the orphans' court had no jurisdiction to entertain the petition, then the superior court had none to review its decision, and hence an appeal to this court would be proper ( Gibson v. Cook, 62 Md. 256), although, when the orphans' court has jurisdiction under sections 238 and 239 of article 93 of the Code, the appeal authorized by section 240 to the circuit court for a county or the superior court of Baltimore city "is exclusive of all other appeals, so that in no event can an appeal in any such case be taken to this court under section 39 (now 58) of article 5 of the Code." Hignutt v. Cranor, 62 Md. 216.
As the statutes in question for the most part speak of an "administrator," we will use that term, as under the rules of interpretation, as adopted in section 4 of article 1 of the Code, it includes "executor," unless such application of the term would be unreasonable. Under section 238 of article 93, an administrator who believes that any person conceals any part of his decedent's estate can file a petition in the orphans' court "alleging such concealment, and the court shall compel an answer thereto on oath." The court is authorized to inquire into the charge, and, if satisfied that the party has concealed any part of the personal estate of the deceased, to order the delivery thereof to the administrator, and enforce obedience to such order by attachment, imprisonment, or sequestration of property. The jurisdiction of the court to proceed under that section is founded exclusively on the allegation of concealment, and hence it has been held by this court that without such allegation the orphans' court has no jurisdiction ( Taylor v. Bruscup, 27 Md. 219); and when the pleadings admit possession by the defendant, but set up title in him, the orphans' court has no jurisdiction, as there is no question of concealment to be passed on, but one of title, which belongs to another tribunal. Gibson v. Cook supra. The appellants contend that the same principles apply to section 239. There is, however, a manifest distinction between the two sections. By the latter the provisions of section 238 "are extended to all cases where any person interested in any decedent's estate shall by bill or petition allege that the administrator has concealed, or has in his hands and has omitted to return in the inventory or list of debts any part of his decedent's assets; and if the court shall finally adjudge and decree in favor of the allegations of such petition or bill, in whole or in part, they shall order an additional inventory, or list of debts, as the case may be, to be returned by the administrator, and appraisement to be made accordingly, to comprehend the assets omitted." The plain language of that section not only applies to concealment by the administrator, but to cases in which he has omitted to return in the inventory or list of debts any part of his decedent's assets. The appellants contend, however, that, if the administrator claims title to the property sought to be reached by a proceeding under this section, the orphans' court has no jurisdiction to determine that question, and that the principles applied to cases under section 238 are applicable to those under this section. In making that contention, however, they lose sight of the fact that section 238 does not give the orphans' court power to determine anything unless there has been concealment; and, if the question of title is raised, the administrator can institute an action in one of the courts having jurisdiction over such controversies, and have it...
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