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 *Page 90 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 1, 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, *Page 91 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 *Page 92 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 omittedto 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 *Page 93 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 in 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 asBeall 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 *Page 94 from the defendant to the estate of their testator, and inWhiting 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 Art. 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 one joint 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 *Page 95 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 *Page 96 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 of Baltimore City, to which an appeal was taken, under section 240 of Article 93, was final, and this *Page 97 Court is not authorized to review it. The appeal will therefore be dismissed.
Appeal dismissed, Mr. and Mrs. Linthicum to pay the costs inthis Court.
(Decided March 7th, 1901.)