Ex parte Walsh

Weisel, J ., delivered the opinion of this Court. The order passed in this case by the Orphans’ Court of Allegany county was upon an ex-parte application of the administrator himself. He appeals from the order because it directed him to he charged with interest on the balance in his hands from the 5th day of February, 1857. He alleges in his report a petition to the Court below, for its further action; that having made all endeavors to find out the next of kin of his intestate, he applied to the Court to lend the money out, and the Court refused it, and that the money has remained necessarily in his hands in consequence of this refusal. He relies upon the case of Mickle vs. Cross, 10 Md. Rep. That, however, was the case of a known legatee, who would neither receive nor renounce the legacy bequeathed to him, and who was repeatedly applied to, to take the money ; the executor investing a portion of the fund and having cash for the residue to meet its payment whenever demanded. The law allows an executor or administrator in any case where money is thus in his hands, to apply to the Orphans’ Court for an order to invest it, and the Court has [498] power in its discretion so to direct. An appeal from an order of refusal, in a matter of discretion, would not lie, and, therefore, the administrator in such case would not he at fault, but the Court itself. ( 1831, ch. 315, secs. 4 and 6, 1 Code, Art. 93, see. 237.) The Court, however, in this ease requires the administrator to charge himself with in-* terest in the face of a report to the Court, that he had made application to it for an order to lend out the money, which was refused. Can the Court in the face of this declaration, there being nothing in contradiction or denial of it, and nothing to show that the administrator either used the money or made interest out of it, hold him to the payment of interest ? We think not. At the same time we are of opinion that parties interested, and yet to he ascertained, ought not to be concluded by the judgment of this Court in an ex-parte proceeding like this. A farther account is unnecessary if nothing but interest is to be charged since the last settlement, and the administrator should not he liable to it. The Court below can order the principal to he invested, leaving the question of interest to be litigated hereafter between the administrator and the parties found entitled, upon proper allegations and proof. The rules holding trustees to the payment of interest, in certain cases, are not to he relaxed, but enforced wherever a clear excuse is not shown. ( Decided March 12th, 1867.) We reverse the order below, and remand the case to the Orphans’ Court of Allegany county, for such action as may consist with these views ; the costs to he paid out of the estate. Order reversed and cause remanded.