
    IN THE MATTER OF THE ESTATE OF HORATIO AMES.
    From Probate Court.
    I. The justice holding a special term and exercising tiie powers of tiie late Orphans’ Court in the District of Columbia has authority to refer exceptions to an account of an administratrix for examination to a special auditor, and to determine objections to the report of such auditor, and to settle and adjust the accounts according to the facts of the case.
    II. Tiie justice holding the Orphans’ Court, in settling such account, may disallow credits therein for payments made by the administratrix in her own wrong, and may also direct her to pay over to the administrators de bonis non the amount found due from her after such account is so adjusted. Such justice would probably ■direct a suit at law against her and her hail rather than to enforce collection of the same by proceedings of' attachment for contempt.
    STATEMENT OE THE CASE.
    This is a controversy in regard to the settlement of an administratrix’s account in the Orphans’ Court. Horatio Ames died Januaiy, 1871, in the State of Connecticut, and the executors in his 'vyill refusing to qualify, his widow, Charlotte L. Ames, was appointed in that State administratrix with the will annexed. Some years prior to his death the deceased had an agreement with the Navy Department, under which he furnished a number of guns to the government, some of which were paid for in his life-time, and the balance not until afterwards. A further sale of guns being negotiated, after his death, the said Charlotte L. Ames was also appointed administratrix with the will annexed, by the special term of the Supreme Court of the District of Columbia, doing business in probate. In February, 1869, Horatio Ames employed one Clifford Arrick as counsel in the matter of his claim against the United States, and, for his services in that respect, the said Arrick was paid by the administratrix several sums of money, -and she now claims a credit for such payments on her account rendered in the Orphans’ Court. The account of the administratrix was filed in June, 1873, and exceptions thereto were filed on the 5th day of August following by Oliver Ame3, a brother of the said Horatio Ames, and an alleged creditor of the estate. It is claimed by Oliver Ames that, he was the owner of the works in Connecticut at which all of the guns were manufactured for the government, and that he is equitably entitled to the payments therefor made by the United States; and he exhibited before the auditor a transcript of a judgment of the Superior Court of Connecticut, for the county of Litchfield, which determines that he, the said Oliver, is entitled to the entire ownership of the guns and the equitable right to their proceeds, and that the said Horatio Ames, in his dealings with the government, was acting as his agent. This is the effect of the judgment as stated by the auditor. The latter, however, held that, under the circumstances of the case, the money received by the administratrix from the United States was properly assets in her hands, whatever might be the equitable claim of the said Oliver; and that as the amounts were paid here they were properly to be accounted for as assets of the estate in this jurisdiction. Iu her account, the administratrix charged herself with the amounts paid her by the United States on account of guns, &c., aggregating $39,955, and she claimed credit and allowance for the following:
    April 4, 1873. By cash paid as per voucher
    •No. 1 -..... $125 00
    May 2, Voucher No. 2 ---------------------- 5,000 00
    May 2, Voucher No. 3 ------------------- 14,824 36
    May 2, Voucher No. 4 —---------------- —. 14,250 00
    Register of wills, stating account------------- 8 15
    May 2, 1873. By commission on $39,955 at 6|
    percent. — ------------------- 2,596 07
    Total------------------------------ $36,304 58
    The account was excepted to by Oliver Ames on the ground, principally, that the amounts received should be accounted for to him as administrator in the State of Connecticut, and that the whole amount belonged to him, and that all the 'credits should be disallowed. Three items of said credits, amounting to $33,574.36, were paid to Clifford Arriek for the services already’ mentioned, and which‘were in addition to large sums which he had received during the life-time of Horatio Ames.
    An order was passed referring these exceptions to James ' G-. Payne, on the 17th day of March, 1874, who made a report allowing the administratrix credit for only $5,495.50, on the vouchers she presented for moneys paid to Anick. Upon the coming in of this report the administratrix file’*-, the following objections :
    
      First. Because said report was made and iiled without any authority of law.
    
      Second. Because the orders passed in the cause by the justice holding a special term and exercising the powers and jurisdiction of the late Orphans’ Court of the District of Columbia, on the 5th day of August, A. D. 1873, and on the 17th day of March, 1874, were, and each of them was, without any authority of law, and void for want of jurisdiction.
    
      And for these causes moved that said report and the said orders be vacated and set aside; which the said justice refused.
    The administratrix, without prejudice to said motion or to her objection to the jurisdiction of the court therein raised, then tiled certain exceptions to said report, viz.:
    
      First. Because said auditor erred in disallowing the debts or claims, or any portion thereof, paid by her as administratrix and mentioned in her said account, the same having been duly proved before payment.
    
      Second. Because her right to a credit for the said debts or claims so paid could not then be controverted.
    Exceptions to said report were also filed on behalf of Oliver Ames, to the allowance of ten per cent, on $5,495.50, credited Mrs. Ames by the auditor, on the sums she had paid Mr. Arrick.
    TJpon consideration of the exceptions, the court below passed the following decree January 28,1876:
    “ This cause coming on to be heard upon the papers relating to-the estate of Horatio Ames, deceased, filed in this court, and upon the first account of said administratrix, and the vouchers numbered 1, 2, 3,4, and 5, filed therewith, and the exceptions to said account filed on behalf of Oliver Ames, and upon the report of the special auditor, James G. Payne, Esq., filed on the 6th day of July, 1875, and the depositions-of Clifford Arrick and others tiled therewith, and the exceptions to said report filed on behalf of said administratrix, and: ou behalf of said Oliver-Ames, and the depositions and ex-mbits thereto, notwithstanding objection of counsel for said Charlotte L. Ames, to the deposition of Oliver Ames as in.competent, having been read to the court, and the mattér having been argued by counsel, for said administratrix by James S. Edwards, and by Messrs. Stanton and Worthington, counsel for said Oliver Ames; after consideration thereof, it is this 22d day of January, 1876, ordered, adjudged, and decreed that the report of said special auditor he, and it is hereby, ratified and confirmed, except in so far as it allows said administratrix credit for $2,500, as being due Clifford Arrick for professional services in the collection of $25,000 from the United States, on the 11th day of April, 1871, and in that réspect said report be, and hereby is, overruled.
    “And except also inasmuch as it allows said administratrix a commission of six and a half per cent, on $39,955, and that in that respect said report be, and hereby is, overruled, and said administratrix is hereby allowed a commission of five per cent, bn said sum of $39,955, for her commission as administratrix in this case.
    “It is further ordered, adjudged, and decreed that the exceptions to the report of the said special auditor, filed on behalf of said Oliver Arnes, so far as they relate to an allowance of ten per cent, on $39,955 to said administratrix, be, and they are hereby, overruled, and in other respects they are sustained; and that the exceptions to the said report of the special auditor, filed on behalf of said administratrix, be, and they are hereby, overruled. Said administratrix is hereby charged with the sum of $39,955, the amount received by her as stated in her said account, and she is credited with $125 due James O. Clephane, with $4,955.50 due Clifford Arrick, and $1,997.75 hereby allowed her for commission as administratrix; and she is hereby directed to pay over to Nathaniel Wilson, administrator e. t. a., d. b. n., of the estate of Horatio Ames, deceased, on or before the 8th day of February, 1876, the sum of $34,876.75.”
    From this decree the administratrix appealed.
    The testimony is voluminous and the facts somewhat cqjj^plicated; but this statement probably contains all that is necessary to an understanding of the decision. Nathaniel Wilson has been appointed at the special term of this court administrator de bonis non.
    
    
      James S. Edwards and Ross & Dean, for Charlotte L. Ames, urged the following points:
    I. Oliver Ames, who appears and opposes the account and the credits for the sums paid by the administratrix of his brother's estate to Mr. Arrick, has no standing in court; because there is no evidence in the case that he is a creditor of the estate, alleged over the signature of his solicitor. He produces no account or claim whatever, nor any memorandum showing an indebtedness from his brother’s estate. Nor is there any testimony tending to show that the administratrix had notice of any claim from him as a creditor of the estate. No bill or account is made out or presented in any form, and the record contains no voucher or proof of a claim of his.
    Neither is there any testimony to sustain the allegation that the estate is insolvent ; to the contrary, it appears from the record that after being credited with all the sums the administratrix presents vouchers for, there is a balance in her hands for distribution of $3,650.42.
    H. The justice holding the special term as a Probate Court had no jurisdiction to appoint a special auditor. All proceedings under the orders of August 5, 1873, and March 17, 1874, were coram non judicc and void.
    The limited jurisdiction of the late Orphans’ Court, which this court inherited, and is controlled and governed by in testamentary matters and the administration of deceased persons’ estates, ought now to be too familiar to this court to require argument or citation of authorities to establish.
    The last declaration of the law-making power, when creating an Orphans’ Court and regulating its proceedings, was to enact, in express and positive language, which does not require judicial interpretation, that “ the Orphans’ Court shall not, under pretext of incidental power or constructive authority, exercise any jurisdiction whatever not expressly given by this' act or some other law.” (Act of Assembly of Maryland, 1798, ch. 101, sub.-ch. 15, sec. 20.)
    The Orphans’ Court is inhibited from the exercise of any power or jurisdiction not expressly given by legislative enactment. They are tribunals, special and limited in their jurisdiction, without any constructive or incidental power. (Yeaton v. Linn, 5 Peters, 228; Lowe v. Lowe, 6 Md. Rep.; Townsend v. Brooke, 9 Gill, 91; Scott v. Burch, 6 Har. and John., 67; Brodess v. Thompson, 2 Har. and Gill, 120.)
    III. Mrs. Ames, as administratrix, having, in good faith, paid Mr. Arrick’s bills, after the same were proven as required by law, is entitled to a credit therefor in her accounts, which the court had no right to reject or disallow.
    
      “ No executor or administrator shall discharge any claim against the deceased, (otherwise than at his own risk,) unless the same he first passed by the Orphans’ Court granting the administration, or unless the same be proved according to the following rules.”
    The vouchers or proofs of any claim or open account shall be a certificate of an oath or affirmation taken by the creditor before a person authorized to administer an oath, since the death, endorsed on, or annexed to, the account, “ that the account as stated is just and true; that he (or she) hath not received any part of the money stated to be due, or any security or satisfaction for the same, except what, if any, is credited.” (Act of Assembly of Maryland of 1798, ch. 101, sub.-ch. 8 and 9, secs. 22 and 8.)
    IV. The court below directed Mrs. Ames to pay over to Nathaniel Wilson, administrator c. t. a., d. b. n., of the estate of her husband, on or before a certain day, the sum of $34,-876.75, being the balance of the money collected by her and charged to her in her accounts, after making her the allowances mentioned. This is error.
    The'power of the court to order and require any assets of the decedent to be delivered to an administrator de bonis non, is expressly limited by the statute to unadministered assets. The court below had no jurisdiction to direct money collected by one administrator to be paid over upon his death or removal to an administrator de bonis non. (14 How., 400; 1 Gill and John., 275; 7 Id., 13.)
    
      Walter D. Davidge, on same side, argued that Oliver Ames was not a creditor; that the administratrix had charged herself and discharged in her account; and that the Orphans’ Court could not make a personal decree against her for assets that she had administered already, and require her to pay them over to the administrator de bonis non.
    
    
      Edwin L. Stanton and A. S. Worthington for Oliver Ames, and of counsel for Nathaniel Wilson, administrator de bonis non, made the following points :
    I. Oliver Ames has an important interest, which entitles him to be heard by the court, in reference to the allowance of Arrick’s claim, and on the question of ordering the late administratrix, under section 97 of the Revised Statutes of the District of Columbia, to deliver to the administrator de bonis non the unadministered assets of the decedent.
    II. It was the duty of the court to reject the claim not merely upon the facts reported by the auditor, but also because the claim had never been proved as required by law.
    1. In the brief for the administratrix, on page 8, the Maryland act of 1798, which prescribes the form of proof in certain claims against the estate of deceased persons, is quoted, but a part of the section and sentence upon which counsel for administratrix rely is suppressed. Section 8 of sub-chapter 9 of the act in question, after providing that any claim on (not “ or,” as printed in brief for administratrix) open account shall be accompanied by the affidavit of the creditor, continues in the same sentence with these words: “ and, moreover, the account shall appear to have been proved as is required by an.act passed at November session, 1785, ch. 46.”
    The act of 1785, here referred to, after declaring what shall be proper evidence to prove foreign records, wills, bonds, notes, &c., proceeds, by sections 4 and 5, to provide that certain accounts may be proved by the affidavit of any clerk, storekeeper, or disinterested credible person. (Thompson’s Digest, pp. 11, 12.)
    The evidence which this administratrix files to justify her for the large payments made to Arrick is the affidavit of Arrick himself, appended to each voucher. There is no affidavit by any clerk or disinterested credible person, as required by the act of 1785. She therefore paid the claim at her peril, even if it was a “claim on open account” within the meaning of the law.
    2. But this was not such a claim. The Marylaud statute evidently contemplated only mutual book accounts between merchants. The act of 1798, above cited, by its sub-chapter 9, provides for the form of proof in certain specified and restricted classes of cases. Sections 1, 2, and 8 refer to the proof of a judgment or decree; sections 4, 5, and 6 to the ease of a specialty, bond, note, or bill of exchange; section 7 to a claim for rent; and lastly, section 8 to a claim “on open account.” The construction which Mrs. Ames’s counsel put upon section 8 would make it apply to nearly every claim against an estate, except those included in sections 1 to 7. It seems clear, however, that the purpose of the‘Legislature was to provide for the payment of a few classes of claims which are easily proved, and which are usually’, if not always, reduced to wilting. This, as to section 8, is made manifest by the act of 1785, chapter 46, which is in effect made part of that section, for that act applies exdume.ly to written instruments, and to claims growing out of the “ payment or delivery- of any money, or the delivery or sale of any goods, wares, merchandise, chattels, or effects.”
    3. This administratrix paid the claims in controversy’ without requiring even the affidavit which her counsel concede was necessary. The money was all paid to Airick on or before the 2d day of May, 1873, as appears from the receipts filed by the administratrix with her account. To each voucher is appended two affidavits made by Arricie, one •dated May 2, 1873, the other June 4, 1873. The affidavits which are of the date of the receipts — 2d May — are not in form or substance such as the creditor is required to make. The affidavits dated June 4, though in proper form so far as they go, were made after the debt, had been attempted to be discharged by the administratrix, and are, therefore, no protection to her, even if the statute authorized her to pay such claims on the mere affidavit of the creditor.
    III. The court had jurisdiction and power to investigate, as it did, the claim of Arrick.
    The power of the Orphans’ Court in passing claims against the estate of a deceased person was not confined to strictly legal claims, but every species of indebtedness, whether legal or equitable; nor is its authority in this respect limited to such as are proved according to the act of 1785, ch. 4G. It did not derive its power to pass open accounts from the 8th section of the 9th sub-ch. of the act of 1798, ch. 101, nor were its powers on that subject imperatively restricted by it. The object of that section was to restrain the authority of executors and administrators in payment of open accounts not passed by the court to such as were proved in the mode thereby prescribed. The power of the Orphans’ Court in passing accounts before payment was derived from the 2d section of the act of February session, 1777, ch. 8, and the 1st section of the 15th sub-chapter, Maryland act of 1798. (Stevenson v. Shriver, 9 G. & J., 424.) And under the latter enactment, in determining the issues of fact raised in this case by the account and the exceptions, the court, under the limited jurisdiction of the old Orphans’ Court, has power “of directing the conduct and settling the accounts” of Mrs. Ames as administratrix, “ of superintending the distribution of the estate,” (including that of the residue belonging to creditors at the domicil, and including the ascertainment of the quantity of that residue,) and “of administering justice relating to the affairs of the deceased according to law.” (Maryland act 1798, ch. 101, sub-ch. 15, see. 3.) It has also “full power, authority, and jurisdiction to examine, hear, and decree upon all accounts, claims, and demands existing between * * * persons entitled to any distributable part of an intestate’s estate and executors and administrators, and may enforce obedience to and execution of their decrees in the same manner as the Court of Chancery may,” (Id., sec. 13;) and whenever either of the parties having such a contest shall require, the court may direct a plenary proceeding. Depositions shall be taken in writing and recorded, * * * and court shall give judgment on the bill, answer, and depositions.
    IV. The court had jurisdiction and power to order tbe removed administratrix to pay the newly-appointed administrator de bonis non the moneys charged to her account, after making to her all just allowances.
    1; The power certainly existed as to $6,255.64, reported as unadministered in the account of the appellant, or $6,247.47 after deducting court costs.
    2. It existed also as to the whole amount of claims disallowed by the court. Arrick’s claim was not proved as required by the Maryland act of 1798, sub-chapter 9, chapter 101. That enactment, restrains the authority of executors and administrators in the payment even of claims on open account not passed by the court to such as are proved in the mode thereby prescribed. (Stevenson v. Shriver, 9 G. & J., 324.) Under the Maryland act of 1715, chapter 39, section 3, an administrator de bonis non might compel his predecessor to account; but under the Maryland act of 1798, chapter 101, sub-chapter 14, section 12, the authority of an administrator de bonis non extended only to the things described in' that act as assets not converted into money, and not distributed or delivered or retained by the former- executor or administrator under the direction of the court.
    Kosciuskio’s case, 14 How., 412, was one of an appointment of an administrator de bonis non after death of the administrator of the first decedent — the administrator de bonis non being also executor of the administrator. It was not a case of removal of an administrator for cause and appointment of a successor to him. In the latter case the common law and the law of Maryland have been changed by the act of Congress of February 20, 1846, (9 St. at L., 4 Rev. St. D. C., secs. 974-976.) Where an administrator fails to give additional and sufficient security after being ordered by the court so to do, the court may remove him and appoint an administrator in his stead, and “shall further have power to order and require any assets or estate of the decedent which may remain unadmiuistered to be delivered to the newly-appointed administrator de bonis non.” Effect must be given to the provisions of this statute. It can only be given if the administrator de bonis non in such ease takes greater power than he would have had at common law or under the laws of Maryland. The-act of Congress is a remedial statute, and is to be liberally construed, and in harmony with other legislation on the same subject-matter. By such legislation in many, if not in most, of the American States, an administrator de boms-non, appointed on removal of a former administrator, has “ full authority to bring suit against the former representatatives of the estate as well in regard to any of the assets of the estate which have come into their hands since the decease of the intestate, as for debts due to or other causes of action in favor of the deceased in his life-time, aud he will not be estopped by any illegal act of the former representative.” (3 Redf. on Wills, 102; Collends Adam v. Donaldson, 17 Ohio, 264; Hardwick v. Thomas, 10 Ga., 266; Potts v. Smith, 3 Rawle, 361; Shackelford v. Runyan, 7 Humph., 141; Bell v. Speight, 11 Humph., 451.)
   Mr. Justice Olin

delivered the opinion of the court :

The decree of the court in special term for probate business is affirmed. We have no doubt that the judge of that court had authority to settle and adjust the account of the administratrix, and that settlement was quite as favorable to the administratrix as the proof in the case would justify. The only doubt which the court entertains is as to the propriety of the latter clause of the order made by the justice directing the administratrix to pay over to Wilson the amount found due' from Mrs. Ames, the administratrix; Mrs. Ames claiming that the amount of $34,876.75, having been paid over to Clifford Arriek, was administered, and no order could have legally been made directing her to pay that sum over. Without definitely deciding that question, it will be sufficient to say that, if application be made to the court below to enforce that order, direction will probably be given to resort to a suit at law against Mrs. Ames and her bail, rather than to the summary proceeding of attachment for contempt or for disobedience of the order of the court.  