Jos. Cain and others, vs. Rich'd C. Warford, 3 Md. 454

Le Grand, C. J., delivered the opinion of this court. This case comes before us on appeal from orders passed by the orphans court for Baltimore city. It appears from the record, that, on the 1st, day of March 1853, tho appellee filed in the orphans court his application, asking to be granted letters of aduainistration^enefenie lite on the personal estate of Rachel Colvin, deceased, stating that she had left a will, bearing date the 6th day of April 1848, and that it had been left for probate, but that a caveat had been filed.

On the 15th of March following, the appellants filed their objection to the appointment of the appellee, because, as alleged by them, “the high court of chancery of this State has assumed the management and control of the real and personal estate of said Rachel, and has appointed Benjamin H. Ellicott receiver thereof, subject to any older in the premises which it might seem necessary or proper thereafter to pass. ” On the 26th day of March Elisha W arford filed his application to have himself and Benjamin H.

Ellicott appointed administrators pendente, lite, stating that the said Elisha was of the nearest of kin of the deceased, and that he represents the interest, with his own, of the majority of the nearest of kin of the deceased. This application was supported by the recommendation of the appellants, who allege themselves to be a majority in interest of those entitled to distribution. They also filed a petition, asking that the court would order and direct plenary proceedings in the matter of the petition of appellee.

The court granted the prayer of the petition of the appellee, and dismissed the petition of the appellants praying an order directing plenary proceedings. It is from this action of the court that the appeal has been taken. We see no error in the ruling of the orphans court. The person to whom the letters were granted was, admittedly, eligible to the office to which he was appointed, and we see no thing in tho acts of Assembly which made it the duty of the court, under the circumstances of this case, to have directed a plenary proceeding.

It does not appear from the record how the court of chancery obtained control of the estate of the deceased, but it was conceded by counsel in argument, that it was acquired by means of a. proceeding against her during her life, on the ground of menial incapacity to superintend and manage her estate. It has been always understood that the death of the lunatic will determine the office of the committee, and the court of chancery will order the personal estate to be passed over to the representative of the deceased. Alexander's Ch. Prac., 238.

The claim' set up by the appellants to an order for plenary proceedings, is founded on the 16th and 17th sections of sub-chapter 15, of the act of 1798,

chapter 101. The sixteenth

section provides, that whenever either of the parties having a contest in the orphans court shall require, the said court may direct a plenary proceeding, by bill or petition, to which there shall be an answer; and the seventeenth

section provides “in case either party shall require, the court shall direct an issue or issues to be made up and sent to any court of law,” &c. The obvious purpose of the sixteenth

section is, to enable the court to advertise itself of the real facts in the case, but where ihere is no dispute in regard to them, as in this case, and nothing but a purely legal question to be determined, it is not incumbent on the court to order a plenary proceeding. It could result in nothing more than what was already established.

There was no dispute in the case, as to the fact that the court had assumed jurisdiction of the estate of the deceased, and the fact could not have been more distinctly placed before the court, either by the finding of a jury, or by the answer of the appellee to any petition or bill which might have been filed by the appellants, or by the appellee against them. And this being so, we are of opinion, that the court did right in refusing to order, in conformity with the prayer of the petition.

These sections of the act of 1798 can only be supposed to relate to applications where there are matters properly in issue between the parties, and not to cases in which there is no dispute in regard to the facts of tbe case. Smith vs. Young, 2 Gill, 204. We regard the sixth’section of the act of 1810,

chapter 34, as vesting in the orphans court full power to appoint the appellee administrator pendente lite, it being admitted, that he was the executor named in the will, and the person to whom the largest portion of the personal estate was bequeathed. When the facts are admitted, which is the case here, the exercise of the discretion of the orphans court must determine the matter. Orders affirmed with costs.