properly belong to us to consider, as a reason
for my vote upon it.
Mr, DANIEL. Agreeing with the gentleman
that this is strictly within the power of the
Legislature, the law-making power, and not
so much in our province, it seems to me that
a reference is unnecessary. I do not think
the Judiciary Committee need act upon all
these individual cases. If we were disposed
to fill up our Constitution with provisions to
meet particular cases, this order, as suggested
by the gentleman from Somerset (Mr. Jones)
would not meet the case. To show that it is
strictly within the power of the Legislature,
I will say that the. Legislature has already
acted upon this very subject; and it is only
to provide for an omission in the law as it
now exists, for its not going quite far enough,
that the order is proposed. There is now
upon our statute book a law covering this.
You can vest the power to sell real estate in
an executor by will; and if the executor dies
without having executed the power, then it
is considered, I believe, that the power dies
with him; and then the Court of Chancery
must appoint. The Legislature having al-
ready acted upon that, it is very easy for the
Legislature to say just what this gentleman
wants us to say that in case the executor dies
without having executed the trust, the ad-
ministrator de bonis non shall execute the
power. It seems to me therefore simply a
question for the Legislature. I think we de-
tract from the dignity of this body if we at-
tempt to take into consideration every indi-
vidual matter which would properly come
before the Legislature, the law-making power.
I think it would rather show that we do not
understand our business.
Mr. BERRY of Prince George's. I do not
at all agree with the gentleman from Balti.
more city (Mr, Daniel) that this comes with-
in the purview of general legislation. When
a testator makes a will and directs by that
will the executor appointed therein to make
a sale of real estate, if he dies the power to
sell dies with him, and the only possible
means by which a sale of that real estate can
be made is through the interposition of a
Court of Equity. Now the Committee on the
Judiciary System, will, as a matter of course
in arranging the jurisdiction of the different
courts, set forth what their peculiar jurisdic
tion is to be. The 0rphans' Court of our
State has no chancery jurisdiction except that
specially given to it by law. I think by
reference to the present Constitution, that the
particular duties and jurisdiction of each of
the courts of the State will be found to be
there defined; but you will not find that duty
enumerated in our present Constitution as a
duty of the Orphans' Court. The courts
therefore, being limited in their jurisdiction
they can exercise no other jurisdiction than
that expressly given them by the Constitution
I think therefore that this is a proper subject |
to go to the committee for their consideration,
whether the Orphans' Court of the State
shall be vested with a jurisdiction of that sort,
to enable them to appoint an administrator
de bonis non clothed with the same powers
the executor was clothed with under the will
of the deceased party. For these reasons I
shall vote for the reference to the Judiciary
Committee.
Mr. SANDS, I do not propose to discuss
the merits of the order at all but only to
make a suggestion. It has hitherto been our
practice, as a matter of courtesy, when an
order is offered simply to be referred to a
committee, to allow that reference, I agree
entirely with the view of the gentleman from
Prince George's (Mr. Berry) upon the merits ;
but I really think, as a mutter of mere ex-
pense, that the time we shall consume in dis-
cussing the merits—for we must either adopt
the general rule of refusing all orders of this
sort or admitting all, or else we must discuss
the merits of every individual order that
comes up, and decide upon its merits—will
cost far more than the printing, paper and
ink, in putting them upon the Journal, out-
side of the question of courtesy to the mem-
ber offering a mere order of reference. While
therefore I entirely concur with the views of
the gentleman from Prince George's upon
this Older, I think we shall save much lime
and expense in simply referring all orders of
imquiry irrespective of their individuals merits.
Mr. BRISCOE. I do not undertake to object at
all to the adoption of the order as a matter of
courtesy; for upon that ground I should pre-
fer that this should go to the committee.
I only want to reply to my friend from
Prince George's in his statement that the
Constitution says what shall be the jurisdic-
tion of the Orphans' Court, or the Equity
Court, or any civil court. The Coustitution
of Maryland does not say what the jurisdic-
tion of the Orphans' Court shall be, or de-
scribe the extent of its jurisdiction at all. I
will read that clause of the Constitution in
reply to my friend :
"They shall have all the powers-now
vested in the Orphans' Court of this State,
subject to such changes therein as the Legis-
lature may prescribe."
As I at first intimated, it is simply and ex-
clusively, so far as their powers are concerned,
a question for the exercise of the discretion
of the legislative department of the govern-
ment. This Constitution has, by its own
words, given the Legislature the right to
prescribe the jurisdiction of that court. The
question covered by the order before us is
simply a question of enlarging or circum-
scribing the jurisdiction of that court; and it
is competent for the Legislature hereafter to
do that. I am not arguing upon the ques-
tion of expense, or of economy, for I do not
raise issues of that kind before a body like
this; but if because a gentleman desires a |
