delivered the opinion of the Court:
It is certainly well settled, that if an administrator or executor, acting in good faith, and without any knowledge, or good reason to believe, that a claim against the estate is unjust or without proper foundation, pays the same, after it has been duly passed by the court, even though not proved in the manner prescribed by the testamentary system, such payment will not be at.the risk of the administrator or executor. He, in such case, is not only prima facie entitled to a credit in his account for such payment, but his right to it cannot be controverted. Owens v. Collinson, 3 G. & J., 26, 38; Conner v. Ogle, 4 Md. Ch. Dec., 449. But the mere passing of the claim, without actual payment, will not give such exemption from risk to the administrator or executor; the claim must be paid by him, in good faith, after being passed by the court. For if he is aware of any just reason for refusing to pay the claim, he cannot pay it with immunity from responsibility, though it may have been passed by the court.
The appellant not only denied the justice of the claims, but denied the good faith of the administrator in recognizing and paying the claims. And she asked for issues to try and determine the facts; and in the refusal of such issues we think the court erred.
The questions, whether the claims were well founded, and to what extent they should have been allowed, if allowable at all, and whether they had been paid in good faith by the administrator, were matters of fact that the appellant had a right to have tried on issues properly framed. The statute of Maryland of 1798, Ch. 101, forming the testamentary system of this District, by its sub-chapter 15, Sections 16 and 17, prescribes the mode of procedure, and that mode of pro*77cedure is not left to the discretion of the court. It has been the uniform construction of the statute, to say nothing of the imperative terms employed by it, to recognize the right of either party to a controversy of fact in the Orphans’ Court, to require an issue, and the court is not at liberty to refuse it. Barroll & Cannell v. Reading, 5 H. & J., 176; Pegg v. Warford, 4 Md., 395. The petition and answer in this case made the issues of fact, and such issues should have been framed as would determine such facts. It is only issues of fact, not questions of law, that should be formulated to be tried by a jury. The issues framed and submitted to the court for adoption were not such as properly presented the questions of fact involved, in relation to the two claims excepted to; and no other item in the account of the administrator is asked to be made the subject of an issue to be tried by a jury.
In regard to the exception to the account because the administrator did not charge himself with an amount greater than that mentioned in the account, as principal and interest received for the United States bond, we think the court was right in overruling the exception. It would appear that the bond was disposed of to the Treasury of the Government for all that it was worth at the time, and the administrator has charged himself in the account with the full amount of the proceeds. And in respect to all other matters referred to in the exceptions, except only the claims of Miss Tait and Mrs. Conboye, the court below was entirely right in disposing of them as it did. But because of the refusal to frame and direct issues to be tried in regard to the two claims mentioned, that of Miss Tait and that of Mrs. Conboye, for which the administrator claimed credits in his account, the order appealed from must be reversed, and the cause be remanded for further proceedings.
Order reversed and cause Remanded.