Mr. STIRLING. The two courts are to have
concurrent jurisdiction.
Mr. PUGH, I understand that, I do not
pretend to understand this matter thoroughly,
but so far as I know anything about it, this
provision is for the purpose of avoiding ex-
pense—it is for the purpose of avoiding the
entailing upon the heirs of deceased persons
the heavy expenses of equity courts. If they
choose to submit to the decision of the orphans'
court, by the provision as it now stands, they
will have the privilege of doing so, and not
besubjected to all that expense. And with-
out the amendment of the gentleman from
Baltimore city (Mr. Thomas,) they have the
privilege of taking their chances in a court of
equity, if they see fit to do so. The whole
object of this section can be secured in no
other way than by leaving it optional with
persons having charge of estates, to select
either the orphans' court, or the equity court.
Mr. STIRLING. I think my friend from Ce-
cil (Mr. Pugh,) and lam afraid some other
members of the convention have not. contem-
plated the extent to which this section goes.
I have no objection in the world to giving the
orphans' court concurrent jurisdiction to some
extent. But this section was framed upon the
idea that the circuit judge should have the
jurisdiction of the orphans' court. As the
section now stands it amounts to giving the
orphans' court absolute concurrent jurisdic-
tion over the estates of deceased persona. So
that if a man owns real estate of the value of
$100,000, and it is mortgaged for $50,000,
the mortgagers can force the heirs to go into
the orphans' court to settle up the estate. It
takes away from them the privilege of going
into the equity court. For although it says
"concurrent jurisdiction," the principle of
law is plain that the court that first gets juris-
diction must have the entire jurisdiction of
the case. And all that is necessary to be
done is for anybody interested to make the
slightest motion towards the orphans' court,
and that takes away the right to go into the
court of equity. And all these complicated
questions of equity must be taken into a court
which, in the counties, does not sit two days
in the week. It will not be so bad in the
city of Baltimore where the court is in session
all the time, but in the counties they do not
sit more than two days in the week.
The interests of other people are involved
in the estates of deceased parties, and not
only that, but questions of real estate law are
very eminently technical. And judges of the
orphans'' court, with all their ability to dis-
charge their ordinary duties, must necessarily
be ignorant how to decide upon these techni-
cal questions. So far as the mere power of
appointing guardians to sell or lease real es-
tate, I have no objection to vesting that in the
orphans' court. That is all that has ever
been asked for them before, and the legisla-
ture has not been willing to give that. Yet |
after the legislature has absolutely refused to
allow the orphans' court to authorize guar-
dians to lease real estate, it is now proposed
by this section to give them concurrent, juris-
diction to administer the whole estate of de-
ceased parties.
I hope the convention will re-consider what
it has adopted I do not think members un-
derstood it properly, doubtless thinking it
only gave the power which was asked in an
order introduced into this. body some time
ago. This section was framed upon adiffer-
ent principle from the one which ha» been
adopted by the convention. There should
at least be some amendment made, limiting
the jurisdiction of the orphans' court to a
particular amount.
Mr. MILLER. In addition to what has been
said by the gentleman from Baltimore city
(Mr. Stirling,) I would say that this is a very
important question. I ask gentlemen to re-
flect that in our State we have always had a
system of equity jurisprudence distinct from
common law jurisdiction. If you adopt this
section as it now stands it will amount almost
to striking down those several jurisdictions.
I know that in a great many of the northern
States their probate courts have jurisdiction
to distribute the real estate of deceased par-
ties, But they have there an entirely differ-
ent system from that which has prevailed in
the State of Maryland, and which it is pro-
posed to continue under this new constitu-
tion. They have no separate equity juris-
diction whatever. And in the New England
States the probate courts administer all the
estates of deceased parties.
And there is another consideration, in
this State tire title to real estate is a very important
matter. Now, if this section is
adopted, we shall have to go into the orphans'
court, where the records are probably loosely
kept, to find out where the title is; and we
shall also go into the equity court—the cir-
cuit court, and the court of appeals—to find
oat the title to land. And there will be a
complication of views upon that subject.
Now in reference to the cost of the matter.
This section does not diminish the expense at
all. And I should like to know how under
this provision a man is going to close up
and distribute the estate of deceased parties.
It is to be concurrent jurisdiction. And he
must file a bill in the orphans' court the same
as in the equity court. The same costs will
necessarily attend the distribution of an estate
in the orphans' court as in the other. Law-
yers must be employed to attend to it, and a
decree must be passed by the orphans' court,
as in the equity court, to direct the sale. 1
rather think the actual costs will be increased
by this system.
There seems to be an idea, abroad in the
community that if you give the orphans'
court this power, you will get rid of the ne-
necessity of employing lawyers. But that is |
