Taylor v. Bruscup

• Decision Date: 18 June 1867
• Citation: 27 Md. 219
• Parties: MARGARET TAYLOR AND JAMES TAYLOR v. THOMAS BRUSCUP AND MARY HENRY, Administrators of Joseph Henry.
• Court: Maryland Court of Appeals

27 Md. 219

MARGARET TAYLOR AND JAMES TAYLOR v. THOMAS BRUSCUP AND MARY HENRY, Administrators of Joseph Henry.

Court of Appeals of Maryland

June 18, 1867

APPEAL from the Orphans' Court of Baltimore City.

Joseph Henry died in September, 1866. In June previous he, with his sister, Margaret Taylor, with whom he was then living, went to the Eutaw Savings Bank and had her name inserted in his bank-book as the joint owner of a deposit he had to his credit in that bank, the same to be subject to the order of either of them. Shortly after the death of the said Joseph letters of administration upon his estate were granted by the Orphans' Court of Baltimore City to the appellees. On the 27th of September the appellee Thomas, acting administrator filed his petition in the said Orphans' Court, alleging that the appellant Margaret, after the death of her aforesaid brother, had taken his bank-book, and praying for an order requiring her and her husband, James Taylor, to produce the same, or any moneys which they might have drawn on account of said bank-book belonging to said deceased. On the 6th of October following the appellants appeared and asserted the ownership in Margaret of the money deposited in the Eutaw Savings Bank by title paramount to the claim of the appellees; denied that it was assets of the estate of her deceased brother, and pleaded to the jurisdiction of the Court. Plenary proceedings were then had, and a great deal of testimony was taken relative, in a great measure, to an alleged will of the deceased Joseph. After hearing, the Court passed an order requiring the appellants to appear and to deposit in Court the sum of $1,818.13, being the amount withdrawn by the appellant Margaret from the Eutaw Savings Bank. From this order the present appeal was taken.

The cause was argued before BOWIE, C.J., BARTOL, WEISEL and CRAIN, J.

Joseph L. Brent, for the appellants.

The Orphans' Court had no jurisdiction over the controversy. It is claimed by virtue of the 238th section of Article 93 of the Code of Public General Laws. The basis of the jurisdiction under this Article is concealment, and this section requires that such concealment should be alleged in the petition filed by the administrator. This allegation was not made in this case, and therefore the plea to the jurisdiction should have been sustained. The section also requires that the Court should be satisfied that there has been a concealment; but the Court does not affirm that such proof had been adduced. And throughout the voluminous testimony there is not one word bearing on the concealment of property. Everything was done openly. Margaret Taylor drew out the money on the advice of Mr. Sterling, her attorney, and the Savings Bank paid it over, after notice, on the advice of Mr. J. Mason Campbell, its attorney. The section of the Code invoked to sustain the jurisdiction of the Orphans' Court is only intended to apply to specific property, capable of identification and delivery. Here the money was loaned to the bank, which is the legal effect of the deposit, particularly as it was drawing interest. Story on Bailments, sec. 88. Hence, there was only a right of action against the bank existing at the time of the death of Joseph Henry, and that right of action survived to Margaret Taylor and not to the administrators. How can a party conceal a right of action? That the Orphans' Court had no jurisdiction is settled conclusively by the decisions of Spencer, Exc'r of Ragan, vs. Ragan, 9 Gill, 482, and Waring's Adm'r vs. Edmonds, 11 Md. Rep., 433. An adverse claim, based on title, ousts the Orphans' Court of jurisdiction, except by consent. Art. 7 sec. 7, of Code of Pub. Gen. Laws.

Even if there had been a concealment, the money which the appellants were required to bring into Court was not assets of the estate. By the terms of the deposit it was the joint property of the decedent and Margaret Taylor, with the right of survivorship. Upon the death of Joseph Henry, instead of vesting in his legal representatives, it vested in Margaret. In order to vest the Orphans' Court with jurisdiction the money itself must be assets; not a right of action to the money, but the money itself.

Now, by right derived from the decedent, the title of the money vested at his death in Margaret; and even if she took, as trustee, which is denied, yet the only right of the administrator was to make her properly administer or discharge the trust, or to sue for money had and received, &c. The money then was lawfully in the possession of Margaret Taylor; and being thus lawfully possessed by her, the Orphans' Court could not assume fraudulent conduct to consist merely in the possession of what it was lawful for her to possess. If she held as a mere trustee, then the rights of the estate are to be enforced in another forum.

John H. Ing, for the appellees.

The Code of Pub. Gen. Laws, Article 93, section 238, provides: "If an administrator shall believe that any person conceals any part of his decedent's estate, he may file a petition in the Orphans' Court of the county in which he obtained administration, alleging such concealment," and the Court may, "if satisfied, upon examination of the whole case, that the party charged has concealed any part of the personal estate of the deceased, order the delivery thereof to the administrator." Does this terminate the prerogative of the Court? By no means. The same section empowers the Court to enforce obedience to such order by attachment, imprisonment or sequestration. What means this word "Conceal?" Manifestly it is the synonym of withholding. Proverbs 12, v. 23; Act of 1719, ch. 14, sec. 7. Conversion is concealment. When administration is granted, the property of the deceased is vested in the administrator, by "relation," from the time of the death of the intestate. Winchester, Trustee of Gooding, vs. The Union Bank of Maryland, 2 G. & J., 80; Cecil, Adm'r of Owens, vs. Negro Rose et al., 17 Md. Rep., 102. The moment the debtor dies the law asserts the rights of creditors, and takes the property into its hands, and makes or directs the distribution of it according to their legal priority. This rule a testator cannot defeat by his will. The State of Maryland vs. The Bank of Maryland, 6 G. & J., 230.

Do the appellants claim the Bank-book as a gift? If so, was it a donatio mortis causa, or a donatio inter vivos? Is there any evidence in this case showing an intention on the part of Joseph Henry to give to his sister Mrs. Taylor, the whole of his estate, to the exclusion of his aged mother, towards whom he had shown a proper filial regard, and to the exclusion of his other sisters and his brothers? The reason why he gave Margaret the authority to draw the money was, that she could write and send it to him as he needed it. The alleged gift to Mrs. Taylor cannot be sustained as a donation mortis causa or as a donation inter vivos; such a gift cannot be by mere parol. The rule of law in either case is, that a delivery of the thing intended to be given is essential to the perfection of the gift. The gift should be full and complete at the time; there must be a parting by the donor with the legal power and dominion over the thing intended to be given, and leaving nothing to be done by him, or his executor, to perfect it. Pennington, Adm'r of Patterson, vs. Gittings' Ex'r, 2 G. & J., 216; Bradley and Wife vs. Hunt, Adm'r of Jack, 5 G. & J., 58. Supposing the entry in the bank-book authorized Mrs. Taylor to draw out the whole deposit in the Savings Bank, and to transfer it to herself during her brother's life-time, yet inasmuch as she did not do so, it was not a valid gift either in law or equity, for want of...