West v. Chappell , 5 Gill 228 ( 1847 )

Archer, C. J.,

delivered the opinion of this court.

No right to the single bill upon which this suit is brought, would vest in the administrator de bonis non until the action of the Orphans court was had in pursuance of the act of 1820, ch. 174. That act, in authorizing the Orphans court to pass an order for the delivery over to the administrator de bonis non of the property therein described, impliedly clothed that court with authority to enquire, as preliminary to such order, into the fact, whether the property was administered, or unadministered. It is to be remarked, that the act does not vest the title to such property in the administrator de bonis non; nor does it give the right of possession to him, except upon the order of the Orphans court. The act is evidently founded on the idea that the property therein described may be unadministered property, but it does not treat it absolutely as such, the Orphans court being authorized, not directed, to pass the order on application. Until such order is obtained from the Orphans court, upon examination had by them, the title remains in the deceased, executor or administrator, who alone is capable of sueing on the note. And, indeed, even after an order for the delivery of the single bill, he could not sue in his own name as administrator de bonis non, but must use the name of the executor or administrator of the deceased obligor, for in him would remain the legal title, no authority being given by the act to sue in his own name.

Any other interpretation of the act of 1820, ch. 174, than that which we have given to it, would, in many cases, work the greatest injustice. For, if the evidences of debt, &c. which the deceased executor or administrator may have received, or had as executor, shall absolutely pass over to the hands of the administrator de bonis non, without enquiry in all cases, then even where such executor or administrator may have closed his accounts in the Orphans court, and finally settled his accounts and distributed the assets, his estate would be made to Surrender all evidences of debt taken by him in the course of his administration, and which at his death may have been on hand. A construction which would lead to such results could not he sanctioned.

JUDGMENT AFFIRMED.