Sinnott v. Kenaday

Mr. Justice Shepard delivered the opinion of the Court: • 1. It does not appear from the record whether the demurrer was sustained upon one or both of the grounds stated; but it is understood that it was upon the second only. However, bo'th grounds have been pressed in sup [121] port of the decree, oil the argument on behalf of the appellee, and must be considered. Some minor questions relating to the rights of the petitioners, both as legatees and next of kin, have also been discussed. These were evidently not considered on the hearing of the demurrer, and do not properly arise at this stage of the proceeding. Their consideration and determination now would be premature. 2. Coming, then, to the two grounds of the demurrer in their order, we are of the opinion that the Orphans’ Court would have the jurisdiction to grant relief of the nature prayed for, upon a seasonable petition. The provisions of the Maryland act of 1798 are ample for the purpose. Ch. 101, Subch. 15, Sec. 1; Id., Sec. 12; McLane v. Cropper, 5 App. D. C. 276, 292; S. C. 6 App. D. C. 119; Conner v. Ogle, 4 Md. Ch. 425, 449, 450; Dorsey v. Dorsey, 9 Md. 31; Snively v. Beavans, 1 Md. 208; Watkins v. Bevans, 6 Md. 489; Dorsey v. Dorsey, 10 Md. 471; Union Bank v. Smith, 4 Cr. C. C. 509, 512; Gwynn v. Dorsey, 4 G. & J. 458, 461. 3. The second ground of the demurrer was well taken. The time had not arrived when the legatees or distributees could compel payment or distribution. Whilst it would seem to be the duty of the executor of an estate, when satisfied that no debts, or only trifling ones, exist against the same, to make as speedy settlements as possible with the legatees, it is not, at the same time, a legal duty that can be enforced until the time required for the presentation of the claims and the exhibition of the account shall have expired. It would seem from the action of the executrix, in delivering the bonds bequeathed to one of the petitioners and money in lieu thereof to others, that the estate was practically free of debt; but, under the provisions of the statute in respect of the presentation of claims and their payment, the court can not assume that no claims or demands will hereafter be presented for payment. Should there be such, the execu [122] trix, having made premature distribution of the estate, would be liable for their payment when legally established. The court did not err in sustaining the demurrer for this reason. Lowe v. Lowe, 6 Md. 347, 354. 4. Under the circumstances, we think it was within the discretion of the court to retain the petitions for hearing when the time shall arrive therefor under the statute, or to dismiss them. But the dismissal ought to have been without prejudice to the right of renewal at the proper time. Instead thereof it was made absolute by its terms; the record not showing that attention was called to the point at the time. Whether such unqualified decree of dismissal would prove a bar to the entertainment of the petitions at a later period, need not be considered. The decree will be modified so as to show a dismissal of each petition without prejudice, and as modified will be affirmed. The costs of this court will be taxed against the appellee to be paid from the assets of the estate in her hands. It is so ordered. Modified and affirmed.