3464 ARTICLE 93

or administrator whose letters have been revoked, and it shall not be found
by the jury that the executor or administrator against whom such judg-
ment has been rendered has assets sufficient to discharge the same, the
plaintiff in such judgment may also issue a scire facias on such judgment
against the executor or administrator whose letters have been revoked,
suggesting that such executor or administrator did receive assets of the
deceased, liable to such judgment, more than was paid over or delivered
by such executor or administrator, to the persons obtaining the said letters
testamentary or of administration; and if the same shall be controverted,
it shall be ascertained by a jury in the same manner as in cases of scire
facias suggesting assets against the second executor or administrator; and
in case of a verdict and judgment being given against such former execu-
tor or administrator, execution may issue thereon in the same manner as
against other executors or administrators, and the plaintiff may also sue
the bond of such former executor or administrator.

An. Code, 1924, sec. 263. 1912, sec. 254. 1904, sec. 253. 1888, sec. 249. 1798, ch. 101,
sub-ch. 15, sec. 16. 1892, ch. 275..

264. The orphans' court may, in all cases of controversy therein, upon
the application of either party, direct plenary proceedings by bill or peti-
tion, to which there shall be an answer on oath, and if the party refuse
to answer any matter alleged in the bill or petition, proper for the court
to decide upon, he may be attached, fined and committed, or his property
may be attached and sequestered; and the appearance of the defendant
or defendants to such bill or petition may be compelled by writ of sum-
mons, order of publication or attachment, as such appearance is now com-
pelled to bills and petitions in the circuit court for the counties, as courts
of equity, and the judges of the orphans' court and register of wills shall
have the same authority to order, issue and attest such process respectively
as the judges and clerks of said circuit courts now have respectively, in
cases in their courts.

Issues arising on petition for removal of co-executor under Sec. 255 may be sent to
Court of law under this section and Sec. 265. Flaks v. Flaks, 173 Md. 358.

Issues are not proper before Orphans' Court under Secs. 264 and 265 except as an-
cillary to some relief in a matter over which the Court has jurisdiction to decide; e. g.,
issue in caveat to will of sanity, vel non, of testator at time of execution. Goldsborough
v. DeWitt, 169 Md. 473.

Cited but not construed in Baldwin v. Hopkins, 172 Md. 227; Harlan v. Lee, 174 Md.
586.

Wherever a bill or petition is filed, whether or not the other parties are cited to
appear, if they do appear and answer, the proceeding is plenary. Pegg v. Warford,
4 Md. 396. And see Stonesifer v. Shriver, 100 Md. 28; Daugherty v. Daugherty, 82 Md.
232; Bowling v. Estep, 56 Md. 567; Hubbard v. Barcus, 38 Md. 172; Cannon v. Crook,
32 Md. 484; Barroll v. Peters, 20 Md. 178.

Plenary proceedings must be conducted as prescribed by this section and secs. 265
and 266. Where answer is irregular and none of testimony appears in record, and no
judgment or decree can be founded upon record as it stands, case will be reversed.
Stonesifer v. Shriver, 100 Md. 27; Bowling v. Estep, 56 Md. 567; Cannon v. Crook,
32 Md. 485; Barroll v. Peters, 20 Md. 178; Kerby v. Peters, 172 Md. 8.

Where both former administrator and new administrator claim property and both
are in Orphans' Court, whose powers are adequate, that court may direct plenary pro-
ceedings under this section with right to issues under sec. 265. See notes to sec. 252.
Anderson v. Curran, 155 Md. 546.

As against administratrix, there is no need to resort to equity for discovery or ac-
count in respect to assets of deceased. Street v. Stubblefield, 20 F. (2nd), (Ct. Apps.,
D. C.), 1019.

An order of Orphans' Court that all persons interested in will, appear and answer in-
volves determining who are lawfully interested and thereafter decide whether persons
applying shall be made parties, held not to be final order from which appeal may be
taken. Collins v. Cambridge Hospital, 158 Md. 112.