
    HELEN A. LINTHICUM et al. vs. MARY E. POLK et al.
    
      Jurisdiction of the Orphans' Court When an Executor Claims Title to ■ Property Alleged to Belong to Decedent's Estate and Omitted from. ■ the Inventory—Construction of Code, Art. gj, sec. 239—Appealfrom Order of Orphans’ Court on Pelition Alleging Concealment of Assets—Parties.
    
    The Orphans’ Court has jurisdiction, under Code, Art. 93, sec. 239, to determine the questions arising upon a petition filed by a distributee of an estate alleging that one of two executors has omitted to return in the inventory certain articles of personal property belonging to the decedent and to return in the list of debts certain money of the testator which came into the possession of the executor before the testator’s death ; and the fact that such executor claims title to the property in question, does not oust the jurisdiction of the Orphans’ Court.
    From an order of the Orphans’ Court passed under Code, Art. 93, secs. 238, 239, upon a petition alleging concealment of assets by an executor or administrator, or failure to return an accurate list of debts or inventory of personalty, an appeal lies to the Circuit Court for the county, or the Superior Court, etc., of Baltimore City, under Code, Art. 93, sec. 240, but no appeal lies from the judgment of that Court to the Court of Appeals.
    In a petition in the Orphans’ Court alleging that an executrix has omitted to return in the inventory property belonging to the testator, the husband of the executrix is a proper party to be joined as a defendant.
    Appeal from the Superior Court of Baltimore City. (Harlan, C. J.)
    The cause was argued before McSherry, C. ]., Fowler, Briscoe, Page, Boyd, Pearce and Jones, JJ.
    
      Thomas R. Clendinen and J. Chas. Linthicum for Helen A. Linthicum, appellant.
    The questions involved, are : First. Has the Orphans’ Court jurisdiction to entertain a petition of individuals in interest alleging that an individual (who is also a co-executor) has possession of certain of the testator’s assets and that she be compelled to bring them into Court, when the answer shows that she claims title thereto ?
    
      Second. Has the Orphans’ Court jurisdiction to entertain a petition of individuals in interest naming other individuals as respondents and should not the petition herein be dismissed so far as same is against Helen A. Linthicum and J. Charles Linthicum, as individuals, and as far as they are concerned therein, in their individual capacity ?
    
      Third. Has the Orphans’ Court jurisdiction to entertain a petition of individuals in interest praying that an individual (who is also a co-executor) account to the Orphans’ Court for certain moneys collected by her for testator before testator’s death, alleged to have been kept by her while an individual or appropriated by her after testator’s death—when the answer shows that it was paid to and expended by testator before his death ?
    
      Fourth. Has the Orphans’ Court jurisdiction to entertain a petition of individuals in interest praying that co-executors make an additional inventory of goods and moneys said by such petition to be claimed by an individual in her individual capacity ?
    To the first question we submit: (a.) That the only thing which tends to give the Orphans’ Court jurisdiction is Art. 93, sec. 239 and that it only gives it a right to entertain a petition wherein it is alleged by individuals in interest that an executor (not a joint executor) conceals or has in his hands and has omitted to return any part of decedent’s assets, {b.) That sec. 241 provides the procedure in the case of joint executors and that if the joint executor, not alleged to be in default, does not care to proceed against the other, then the individuals in interest have their remedy by petitioning for a removal and by suit on the bond of both executors, (c.) That the claim of title by Helen A. Linthicum ousts the jurisdiction of the Orphans’ Court as to those goods to which title is claimed.
    To the second question we submit: That Art. 93, sec. 239, the section of the Code under the authority of which the petition was admittedly filed does not, nor is there any warrant whatever anywhere for individuals to petition the Orphans’ Court alleging a withholding of assets of decedent by other individuals.
    To the third question we submit: (a.) That the appellant, Helen A. Linthicum, if held accountable for the $2,300, can only be so held individually, as the money was collected before testator’s death, in which capacity the Orphans’ Court has no jurisdiction over her. (A) That the charge in the petition relative to the $2,300 is not sufficiently specific for the Orphans’ Court to take further cognizance of it after the statement of respondent in regard thereto.
    To the fourth question we submit: (a.) That executors, however numerous, are treated in law as one person, and that no order can be passed except against all. (b.) That the Orphans’ Court cannot pass an order against an executor under Code, Art. 93, sec. 239, requiring him to return money or goods which it is alleged are held by another person, unless it is also alleged that the executor is in collusion or particeps criminis.
    
    The appellants are also of the opinion that the Court below erred in its interpretation of the decisions of this Court in the cases of Gibson v. Cook, Admr., 62 Md. 258-260; Daugherty v. Daugherty, 82 Md. 231; Taylor v. Bruscup, 27 Md. 225. In these cases, this Court did not hold that the Orphans’ Court had not jurisdiction to try a question of title, because there was no issue of concealment. “But,” said this Court, “the Orphans’ Court has no jurisdiction, because it is a question of title, and not one of concealment.”
    
    
      “ The Orphans’ Court shall not, under pretext of incidental power or constructive authority, exercise any jurisdiction not expressly conferred by law.” (Code, Article 93, section 256.) This is but a statutory recognition of a principle of common law that Courts of special limited jurisdiction must be confined to the express letter of authority. Taylor v. Bruscup, 27 Md. 225; Blumenthal v. Moitz, 76 Md. 566; Brown v. Preston, 38 Md. 373; Stanley v. Safe Deposit Co., 87 Md. 453.
    An adverse claim based on “title” ousts the Orphans’ Court of jurisdiction except by “ consent of both parties,” since that Court has no jurisdiction to try a question relating to the title to property. Gibson v. Cook, 62 Md. 260; Levering v. Levering, 64 Md. 410; Blumenthal v. Moitz, 76 Md. 566; Daugherty v. Daugherty, 82 Md. 232.
    We submit that the Orphans’ Court has no jurisdiction to entertain the petition as to the $2,300, for certainly that is a matter in which Mrs. Linthicum, if accountable at all, can only be so held individually, because, as it is alleged, the money came into the hands of Mrs. Linthicum on November the 1st and 9th, 1896, respectively; whereas, Mr. Clark did not depart this life until December 8th, of the same year, and Mrs. Linthicum positively asserts, that she paid the money over to him, and that he disposed of it before his death. If the Orphans’ Court has jurisdiction to go into matters transpiring between a husband and wife a month before the husband’s death, certainly it would have an equal right over matters which transpired between them at any time during their entire married life of thirteen years, and to examine into and compel an accounting for the hundreds of collections and business matters attended to by Mrs. Linthicum, then Mrs. Clark, during that time.
    
      James P. Gorter, and H. Arthur Stump, for the appellees.
    To say that the Orphans’ Court cannot enquire into the question whether the administratrix has in her hand and has omitted to return any part of the decedents assets, when, incidental to that enquiry, the title claimed by the administrator or executor might be involved, is to declare that these words in section 239 are useless and without legal effect. To illustrate : A petition is filed in the Orphans’ Court under section 239, alleging concealment, and withholding of specific chattels. There are but three possible positions that the defendant or executor can take : 1. That he has not the goods. 2. That he has them, admits they belong to the estate, but refuses to return them. 3. That he has them, but claims title. If the petitioner can establish in the first case that the executor has the goods, we have concealment made out, for if you prove that a party has chattels which he denies that he has, concealment is established.
    In the second case there is no need of an investigation or Inquiry; there is nothing in dispute to decree upon; there is no room for issues to a Common Law Court, or an appeal to the Superior Court. If you cannot inquire in the third case, the words “or has in his hands and has omitted to return in the inventory or list of debts any part of his decedent’s assets,” are without effect. If the appellants’ claim be sound, we are confronted with an Act which has stood upon the statute books of the State for 70 years, with clear and distinct language, extending the sphere of jurisdiction of the Orphans’ Court beyond the section preceding, with reason and necessity for so doing, with severe measures to compel obedience, and finally with the authority conferred upon the Court to remove its disobedient officers, and yet powerless to accomplish any good,, or reach any imaginable case. A
    Section 239, was enacted, required and intended to reach a case where the administrator withheld assets, whether title be claimed or not. The administrator is appointed by the Orphans’ Court; it creates him; it can remove him, and it has full control and authority over him. It is but natural, therefore, to expect legislation, authorizing the Orphans’ Court to investigate and enquire into matters wherein an administrator is concerned, when it would not be necessary or proper in cases where third persons were concerned, the jurisdiction of Courts of Law and Equity in such cases being amply sufficient. The administrator is vested with the legal title. He is, therefore, in a position to invoke the aid of a Court of Law or Equity, where a third person interferes in any way with the estate of a decedent, while, on the other hand, a person interested in the honest administration of an estate can, with difficulty, if at all in certain cases, reach an administrator at law or in equity. Illustration of this in the cases of Beall v. Hilleary, 1 Md. 197; Hesson v. Hesson, 14 Md. 8; Whiting v. Whiting, 64 Md. 157.
    
      While Courts of Equity have, generally speaking, jurisdic'tion over executors and administrators, yet in Maryland the •estates of deceased persons are universally (unless for some •special reason Courts of Equity take jurisdiction) administered in the Orphans’ Court, and the tendency of the decisions of 'this Court has been towards a non-interference with the Orphans’ Courts in the exercise of their jurisdiction over the ■estates of deceased persons. In proceeding under sections 238, 239 and 240 every safeguard is thrown around the rights of all concerned.
    It is said that the Orphans’ Court cannot pass upon a question of title. This is true where the controversy is in respect to the rights of a third person, because the remedies at law and equity being full, adequate and complete, the Legislature has never conferred this power upon the Orphans’ Court. You see illustrations of this principle: (a.) Where a claim of a Tiird person against an estate is disputed by an executor. Fowie v. Ghiselin, 30 Md. 553 (b.) Where an executor claims assets for the estate, and the person holding them disputes the title. Gibson v. Cook, 62 Md. 256; Taylor v. Bruscup, 27 Md. 219. (c.) Where an effort is made to set aside a deed, Daugherty v. Daugherty, 82 Md. 229, relied on by the appellants below, although the answer in this case swore away the allegations of the petition.
    But when you come to the jurisdiction of the Orphans’ 'Court in dealing with an executor or administrator, you find •a different principle, based upon the reason and the necessity of the case, running through the legislation of the State, and the decisions of the Court of Appeals. Spencer v. Ragan, 9 Gill, 480; Beall v. Hilleary, 1 Md. 186; Hesson v. Hesson, 14 Md. 8; Whiting v. Whiting, 64 Md. 157.
   Boyd, J.,

delivered the opinion of the Court.

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 of Gabriel D. Clark when she married J. Charles Linthicum. It is also alleged that on November i, 1896, she came into possession of two thousand dollars, and on November 9, 1896, of three hundred dollars 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 twenty-three hundred dollars, 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 Art. 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 Art. 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 Art. 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 Art. 1 of the Code, it includes “executor,” unless such application of the term would be unreasonable. Under section 238 of Art. 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 his 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 regularly tried there.

But the object of section 239 is to require the administrator to account m the Orphans' Court for all property of his decedent. He is, by virtue of his qualification as an administrator, in that Court, and he is presumed to take all of his decedent’s personalty into that Court and to there account for it. He being already there and the person interested in the decedent’s estate voluntarily coming into it, there is not the same reason for denying the Orphans’ Court jurisdiction to determine questions between them, as there is when the administrator undertakes to bring into that Court one who is not already there. But apart from that, the Orphans’ Court is the one where the inventory and list of debts are to be filed, and if the administrator does not file correct inventories or lists of debts, can there be any reason why the Orphans’ Court should not have authority to compel him to do so ? Is that Court to be shorn of all power to compel administrators to file true and correct inventories and lists of debts on the mere allegation of the administrator that the property belonged to him ? If the Orphans’ Court cannot determine the question, what tribunal can ? The title to property of the decedent is in the administrator. No one could maintain an action of replevin, trover, or other action to test the title against him for the estate, for the simple reason that the title is in him as administrator, if the property belongs to the estate. If he has money belonging to the estate, who could sue to recover it in a Court of law? Manifestly no one could, for the reason that no one but the administrator is entitled to recover the money due his decedent. Nor would there be any ground for a Court of equity to give relief. It was held as far back as Beall v. Hilleary, 1 Md. 186, that one executor could not file a bill in equity against his co-executor in order to compel the latter to account for and pay over to him certain claims alleged to be due from the defendant to the estate of their testator, and in Whiting v. Whiting, 64 Md. 157, that case was affirmed, and it was said: “The Code, by sections 225, 239 and 241, of Article 93, makes provision for proceeding against delinquent administrators, or co-administrators in the Orphans’ Court; and a resort to the remedy thus provided would certainly be more expeditious and less expensive than by proceeding in equity.”

It is true that the jurisdiction of the Orphans’ Court is limited, but amongst the powers expressly conferred on it are those to “direct the conduct and settling the accounts of executors and administrators, superintend the distribution of the estates of intestates, secure the rights of orphans and legatees, and to administer justice in all matters relative to the affairs of deceased persons.” Section 230 of Ait. 93. It would indeed be scant justice if distributees, with a petition of this character, are to be turned out of Court on the mere allegation of an administrator that the property referred to belonged to him, and not to the estate he represents. The. law does not prohibit those interested in estates from going into the Courts where they are to be settled, to demand proper accounting by administrators and executors.

It was suggested at the argument that section 241 afforded all the relief necessary. But that is a proceeding by onejoint .administrator or executor against another. It does not furnish any remedy to other parties, and if the one administrator or executor does not proceed against the other that section is ■of no avail. Of course in most instances the bond is liable for •defaults by an administrator, but oftentimes that does not furnish the interested party all the relief he is entitled to. It may be that the distributees want the specific articles themselves ■and not simply their value, but if the position of the appellants is correct, an administrator could select for himself any article he wanted and merely by claiming title to it avoid any recovery of such article. There is nothing in our testamentary laws, or the construction of them by this Court to require or permit such a condition of affairs. Section 240 provides for issues being framed and sent to Courts of law, so that such questions as arises under sections 238 and 239 can be passed on by juries and there can be no reason why the Orphans’ Court cannot entertain a petition of this character under section 239, even if the administrator claims title to the property in question. If it is in fact his property then of course he is not required to account for it, but if it is the property of the estate, he should be required to produce it, when that is possible, or to account for it if that cannot be done.

It is contended that the pleadings show that the money referred to in the petition was received, if at all, prior to the death of Mr. Clark, and hence it could at most only be a debt due by Mrs. Linthicum to the estate. If that be conceded, then the petitioners had the right, under section 224, to go into the Orphans’ Court and have that determined in one of the methods therein provided and if determined against the executrix she is required to account for the sum due as if it was so much money in her hands and on failure her bond could be sued. Section 225 protects the bond if the administrator or executor was insolvent, or unable to pay his debts at the time of his qualification, but his commissions are applied to the payment of the debt by that section and if he be a distributee the amount due by him must be deducted whether it was a debt due to the decedent or incurred to the estate itself after the decedent’s death. Hoffman v. Armstrong, 90 Md. 130. The Orphans’ Court would therefore clearly have had jurisdiction to inquire into that part of the claim under that section. But we have no doubt that it had under section 239. The petition alleges “ that a considerable portion if not all of said sums of money remained or came into the hands of said Helen A. Clark, now Helen A. Linthicum, after the death of the said Gabriel D. Clark, but she has omitted to return said money either in any inventory or list of debts filed in this Court, but conceals and withholds the same.” If that be true, it was clearly her duty to account for it as executrix—just as much so as if the money had been in bank, or in the pocketbook of the deceased when he died. If it can be properly accounted for that will end that part of the controversy, but if' it is not, it is the duty of the executors to account for it— either as money in hand or in the list of debts, if it was converted by Mrs. Clark prior to his death.

It is perhaps not necessary for us to determine whether Mr., and Mrs. Linthicum were properly included in the petition in. their individual capacity as the order appealed from dismissed the petition, and therefore discharged her as executrix, as well as in her individual capacity. But we can see no objection to. making the husband of Mrs. Linthicum a party. No relief is sought against him, but as she married after she became one-of the executors, it was a very proper practice to join him in the proceeding, for the protection of his wife, although no decree would be passed against him. Excepting in cases where: the statute expressly provided for her being sued as a femesole, it was, prior to the Act of 1898, generally proper, if not. necessary, to join the husband in a suit or proceeding against, the wife. With a few exceptions a married woman could not be sued in equity without the joinder of her husband, Clark v. Boarman, 89 Md. 428, and although this was not a proceeding in equity the practice in the Orphans’ Court resembles that, in equity more than that at law, and in cases of this character, independent of the Act of 1898 which was not applicable, it. would seem to be eminently proper to make the husband a. party. There certainly could be no ground for dismissing the-petition, because Mrs. Linthicum as an individual was made a. party. As was well said by the learned Judge below : “ If it should be necessary ‘ to enforce obedience to such order ’ as. may be passed ‘ by attachment, imprisonment or sequestration of property ’ a lady would derive small comfort from the-thought that as an individual she was entitled to her personal, freedom, but as executrix she was imprisoned under a commitment for contempt.”

Being of the opinion that the Orphans’ Court had jurisdiction under the allegations in the petition the decision of the: Superior Court ol Baltimore City, to which an appeal was. taken, under section 240 of Article 93, was final, and this. Court is not authorized to review it. The appeal will therefore be dismissed.

(Decided March 7th, 1901.)

Appeal dismissed, Mr. and Mrs. Li7ithi~ cu77i to pay the costs íti this Courts  