Porter v. Timanus

Bartol, J., delivered the opinion of this court. This is an appeal taken on the 6th day of March 1855, from several orders and decrees of the orphans court for Howard county. The record shows that there were two orders passed on the 2nd of January 1855. These are not open for review under this appeal, and as to them the appeal must be dismissed, on the ground that it was not taken in thirty days, as required by the act of 1818, ch. 204, sec. 1. The words of the act are: “Provided such appeal be made within thirty days after such decree, order, decision or judgment.” One of the orders passed on the 2nd day of January 1855, required the appellant to bring into court on or before the 16th day of January 1855, the sum of $3007.28, being the balance appearing to be due on the last account passed therein by her. On the 20th day of February 1855, another order was passed requiring the executrix “to bring into this court, under an order of said court of the 2nd day of January 1855, on or before the 6th day of March 1855, the sum of $3007.28, being the balance appearing to be due on the last account passed therein by her, otherwise this court will revoke the letters of said executrix, and appoint an administrator from among the legal heirs.” And on the 6th of March, the day limited in the previous order for the money to be brought into court, the executrix having failed to comply, the said court passed an order revoking her letters, and appointing an administrator in hef place. The appeal was taken within thirty days after these last two orders, and would bring them before us for review, if they were-of such a nature as to be proper ground for appeal, But this court has decided, in Ex-parte Shipley & Wife, 4 Md. Rep., 496, that, under the act of 1831, ch. 315, sec. 4, the orphans court is clothed with a discretion to pass such orders, and when it has passed upon such an application, its decision js final, and no appeal will lie. It is true that the power vested in the orphans court by the act of 1831, is to be exercised with a sound, legal discretion, and not capriciously or arbitrarily. And in the case before us, even if it were proper to entertain [293] the inquiry, we can discover no evidence of such arbitrary exercise of the discretionary power, as alleged by the appellant’s counsel. It is objected that the order of the 20th of February was erroneous, because it was founded on the order of the 2nd of January, which, it is alleged, ordered the fund to be brought into court for distribution. Without expressing any opinion upon the question of the powers of the orphans courts to order funds to be brought in for distribution, it is sufficient, for this case, to say that there were two orders passed on the 2nd of January. The particular order of that date, on which that of the 20th of February was founded, and to which the latter refers, did not order the fund to be brought into court for distribution, but simply ordered the executor to bring it into court. Nor did the order of the 20th of February determine ab ante that a failure to comply should ij)so facto be a ground for a revocation of the letters. The act of Assembly declares that the orphans court may revoke the letters on a failure to comply with such order within a reasonable time; and although it was not necessary to admonish the executrix, in the order, of the possible consequence of her contumacy, such a warning did not render the order erroneous. To the order of the 6th of March, it is objected that no notice was given to the appellant of the exigency of the order of the 20th of February. But the record shows that she was in court, represented by counsel, when the order of the 2nd of January was passed, which required her to bring the money into court, and the failure to comply with such order, was a sufficient reason for a revocation of the letters, without the intervening order of the 20th of February. Notwithstanding the suggestion by the appellees’ counsel, that no notice of such an order is required by the terms of the act of 1831, and that none is necessary, we are of the opinion notice ought, in all cases, to be given to the party upon whom the order is designed to operate, and that he should be allowed his day in court to comply with its exigencies, or to show cause to the contrary before the revocation, of the letters. But, in this case, we consider ample and complete notice was given, and that the orphans court acted with sound and judicious discretion in the premises. [294] (Decided July 20th, 1858.) Although .none of-the orders appealed from are properly before us for review, we have deemed it proper to notice the objections urged by the appellant. In deciding that no appeal lies from thp order of the 0th of March, revoking the letters, we must be understood as confining our judgment to such an order passed under the act of 1831. This is a proceeding under that act which we have said vests a discretion in the orphans court. Appeal dismissed.