If there is any way to avoid all that, I want
it. I say that the executor, until a guardian
is appointed, is in the capacity of executory
guardian to the heirs.
Mr, RIDGELY. There is a way out of the
difficulty, as I will state to my honorable
friend from Cecil (Mr. Pugh,) and that is by
making this court acourt to be presided over
by one who is competent to discharge the
functions of that court.
Mr. PUGH. I was in favor of that.
Mr RIDGELY. There is no other way out of
it, I am very sure that the course of argu-
ment taken by the gentleman from Cecil (Mr.
Pugh) is sufficient of itself to satisfy this
whole body of the utter impractibility of
the provision made by the committee for a
very different set of circumstances—would
this convention for one moment entertain the
proposition to give the criminal and civil
jurisdiction of the State to the orphans' court?
And yet that would be no more remarkable a
proposition—not so remarkable a proposition
as to give the equity jurisdiction of the State
to the orphans' court. Because the equity
jurisdiction of the State involves questions far
more profound, difficult and complex than
the criminal jurisdiction; questions arising
out of real estate which are the most difficult
questions that arise in the practice of law.
We are now called upon to submit questions
to laymen—I use that expression without
meaning any reflection at all, merely to dis-
criminate between those who are educated to
the profession of law, and those who are
not—we are called upon to submit questions
of the most difficult and complicated charac-
ter, arising out of the various interests in real
estate, to a tribunal which is wholly unedu-
cated to consider them; whose discipline and
training of mind is in another direction en-
tirely. The only effect of this would be to
multiply appeals.
Now these courts, ever since their forma-
tion, have been considered mere statutory
courts; courts created with very limited pow-
ers, and denied all constructive or inferential
powers.. Every possible restriction has been
imposed upon them by the law, in view of
the fact that they are law courts, and not
constituted with a view to consider and de-
termine questions of law or equity. I hope
the convention will not think of engrafting
upon the constitution aprovision which would
be so very prejudicial to all the interests of
every one—not of lawyers, but of heirs, cred-
itors, and everybody else interested in the ad-
ministration of real estate. It is impossible
to confer such a distinction without involving
common interests in confusion and difficulty.
Mr. SANDS. I would just say, in addition
to what has been said in regard to this mat-
ter by the gentleman from Baltimore county
(Mr. Ridgely,) that if I wanted to promote the
interests of lawyers as a class, I should cer-
tainly vote for this section as it stands here. |
Because then where I now go to the court of
appeals once, I would go a dozen times.
Now my friend from Cecil (Mr. Pugh,) not
being a lawyer, but being a man of high
intelligence in other respects, has in the course
of a few minutes demonstrated the wrong we
would commit in permitting ignorant
in the law to decide questions of law. For
instance, the question would come up before
him, as judge of the orphans' court, whether
by virtue of the office of executor or adminis-
trator a man was guardian to the minor
heirs, notwithstanding the fact that there
might be a guardian appointed by last will
and testament. How would he decide that
question? According to his view of the law
as expressed here to-day, he would decide that
he was such guardian by virtue of his office as
executor. Yet the law is plain, as it stands
in article 93, section 161 of the code, that that
was not the legal view of the case. How
would that affect me as a lawyer? in addi-
tion to my fees in the orphans' court, I would
make my fees here, for I would at once bring
the case to the court of appeals, where they
would immediately decide that that was not
the law—and in section 152 of the same arti-
cle of the code, it is expressly provided that
after a certain time be shall not act as guar-
dian of the minor heir) even by virtue of his
office as executor, where no guardian is ap-
pointed by last will and testament. That is
the law. But how shall a man ignorant of
the law know it to be the law; as a lawyer 1
go to the proper title in the code, and in arti-
cle 93, sections 151 and 152, I find the law to
be as follows:
" Whenever any person shall die seized or
possessed of any lands, tenements, or heredita-
ments lying within this State, and any of the
persons entitled thereto or any part thereof,
shall be under age, and without a guardian
appointed by last will and testament, or by
the orphans' court, the administrator of the
decedent, as soon as administration shall be
committed to him, and not before, shall take
possession of such estate, and discharge and
fulfil all the duties of guardian to such
infant, and shall account with the court in
like manner as guardians are required by law
to account, and subject to the like control and
authority of the court, in all respects what-
ever."
"No administrator shall be bound any
manner to discharge and fulfil the duties of
guardian after the close of his administration,
or after three years from the granting such
administration, nor after a guardian shall be
appointed by the orphans' court."
By very lapse of time, where there is no
guardian appointed by last will and testament,
the heirs to the estate would be without a
guardian, without any one to have legal
charge of their interests in this matter.
Mr. PUGH. The gentleman admits that the
executor i» guardian for three years. |
