Appler v. Merryman

Schmucker, J., delivered the opinion of the Court. This is an appeal from an order of the Orphans’ Court of Baltimore City dismissing a petition filed by the appellants as distributees of the estate of Marguerite E. Bullock, praying for the removal of the appellee from the position of administrator of the estate. The only relief asked for by the petition was the removal of the administrator and the appointment of a new one in his place. The grounds relied on by the petitioners were an alleged failure on his part to render any account, and various other delinquencies with which he was charged in the petition in general terms without specification of the particular transactions complained of.

The appellee answered the petition under oath averring that he had prepared an account, which was submitted to and approved by the counsel for the appellants, and left it with his vouchers in the hands of the auditor of the Court, and that he had overpaid to the appellants their respective shares of the estate ; and he stoutly denied the allegations of delinquency and misconduct contained in the petition. At the trial of the issue made by the petition and answer the Orphans’ Court, after hearing the testimony produced touching the filing by the appellee of an administration account, announced that in its opinion the evidence showed that such an account had been presented and sworn to by him in open Court, before the filing of the appellant’s petition, and that the account so rendered must be treated as prima facie correct and must be surcharged by the petitioners. The Court also refused to permit the appellants to introduce evidence under the various other charges in the petition which it held not to be sufficiently definite or specific. The petitioners asked leave to amend the allegations ⁷⁰⁸ of their petition.

The Court did not permit the amendment, but passed the order appealed from which dismissed the petition “ with leave to the petitioners to file a new petition.” We do not deem it necessary to enter at length into a discussion of the merits of the case because the appellee has made a motion to dismiss the appeal which must be granted. The order appealed from does not finally settle or determine the questions in controversy. It does not either remove or refuse to remove the administrator, but simply dismisses the particular petition before the Court