Bauernschmidt v. Bauernschmidt

Pearce, J., delivered the opinion of the Court. This appeal is from an order of the Circuit Court No. 2, of Baltimore City, ratifying Account A and rejecting Account B, filed by the auditor in the case of Frederick and William Bauernschmidt v. Margaretha Bauernschmidt, Executrix of George Bauernschmidt, deceased, et al., which was before this Court at the January Term, 1903, and which is reported in 97 Md. 35 , under the title, “Ln re Bauernschmidt's Estate." It will facilitate the understanding and disposition of the questions involved here, to state as concisely as may be, the purpose and scope of the bill and the conclusions reached by the Court in the former case. The bill prayed that a deed of trust from Margaretha Bauernschmidt to the Baltimore Guarantee and Trust Company, in so far as it sought to affect the plaintiffs’ rights, should be annulled, andjjthat Mrs. Bauernschmidt should be decreed to hold the securities mentioned in the deed, and the proceeds and income thereof, in her capacity as executrix of the estate of her husband; that a deed from her to the Baltir more Realty Company be anuulled and declared of no effect, and that she be decreed to hold the. mortgages mentioned therein, and the proceeds. and income thereof in her said capacity as executrix; that an injunction be issued restraining the Baltimore Realty Company and the said Margaretha, as executrix from paying any assessment upon the stock or securities . of the Maryland Brewing Company, and from certain other acts mentioned in the bill; that she be required to conduct the administration of said estate under the supervision ¹⁵¹ and control of Circuit Court No. 2, and be required to charge herself, as executrix, with all the stock of the Maryland Brewing Company of which her husband died possessed, and with the stock of the Baltimore Realty Company of which he died possessed, and which came into her possession, and with which she was not already charged; that John, Sarah, and Elizabeth Bauernschmidt, and Emily Wehr and Henry Wehr, her husband, may discover what certificates of stock are standing in their respective names, of which the beneficial interest, was in George Bauernschmidt at the time of his death; and for general relief. The Circuit Court decreed, 1st, That the deed to the Baltimore Trust and Guarantee Company was null and void and that Mrs. Bauernschmidt should account before the auditor for all the securities and property mentioned therein, as part of the estate of George Bauernschmidt; 2nd, That her deed to the Baltimore Realty Company was null and void, and that she should account before the auditor, in like manner, for the mortgages mentioned therein and their proceeds; 3rd, That the alleged gift of securities in the Safe Deposit boxes mentioned in the bill, from George Bauernschmidt to himself and Mrs. Bauernschmidt as joint tenants, was ineffective for want of sufficient delivery, and that she account, in like manner, for said securities; and, 4th, That the case be referred to the auditor to state an aecount accordingly.

From that decree, the Baltimore Trust and Guarantee Company, and the other defendants took separate appeals. Upon these appeals the decree of the Circuit Court No. 2, •was affirmed in part and reversed in part. The first clause as stated herein, was reversed because it struck down the deed of trust as an entirety, and declared that all the securities embraced therein belonged to the estate of George Bauernschmidt. The second clause, vacating the transfer of the mortgages to the Baltimore Realty Company, was affirmed.

The third clause declaring the gift of securities by George Bauernschmidt to be ineffectual, was affirmed. ¹⁵² The fourth clause referring the case to the auditor for an account in conformity with the decree of the Circuit Court was reversed, and the case was remanded for a new decree in accordance with that judgment, and the statement of an account in conformity with that opinion. The Circuit Court thereupon passed a new decree accordingly, designating the securities which upon the appeal it had been held did pass absolutely under the deed of trust, and ratifying and confirming said deed as to those securities, and also as to all the other securities embraced therein so far as to authorize the holding thereof during the life of Mrs. Bauernschmidt, but requiring these last-mentioned securities to be accounted for by Mrs. Bauernschmidt before the auditor as part of the estate of her husband; the life interest therein to pass under said deed of trust, and the remainder interest therein to vest on her death as provided in her husband’s will, and referring the case to the auditor to state an account accordingly. Testimony was taken before the auditor, who submitted Account A as representing his own views, and Account B representing the views of the counsel of Frederick and William Bauernschmidt. Exceptions were filed to Account A by Frederick and William Bauernschmidt, and to both accounts A and B. by Mrs. Margaretha Bauernschmidt.

Account A was ratified, and Account B was rejected, and both parties have appealed. The exceptions of Frederick and William Bauernschmidt to Account A are as follows: 1st. To the fee allowed John N. Steele, Esq., for defending the deed of trust from Mrs. Bauernschmidt to the Baltimore Trust and Guarantee Company, upon the ground that it should have been allowed out of the income of the trust estate, and not out of the corpus, as allowed by the auditor. 2nd. Because it is alleged Mrs. Bauernschmidt should have been charged with $14,000 of gold mentioned in Frederick Bauernschmidt’s testimony, instead of $4,000 as charged by the auditor, the exceptants contending that the whole amount is sufficiently traced to her possession. ¹⁵³ 3rd.

Because in Account A, Mrs. Bauernschmidt is not charged with certain property conveyed by the George Bauernschmidt Brewing Company to the Baltimore Realty Company by deed dated March 1st, 1899, in the lifetime of George Bauernschmidt. 4th. Because Account A does not charge Mrs. Bauernschmidt with all the items with which she is charged in Account B, in addition to the items charged against her in Account A. The exceptions of Mrs. Bauernschmidt to Account A are as follows: 1st. To the charge of $252,000 marked {b) in section 2 of said account, “upon the ground that the same is not authorized by the decree of the Circuit Court No. 2, nor by the provisions of the decree which the Court of Appeals directed the said Circuit Court to pass; because the question involved in said charge was not presented to the Circuit Court, nor to the Court of Appeals in any manner; was not involved in the testimony, nor covered by the decree of the Circuit Court, and was not within the province of the auditor to determine.” 2nd. Because in stating Account A the auditor has exceeded the authority of the decree passed in the cause, and has not confined the items of the account to the matters passed on by the Court of Appeals.

The 3rd exception specifies the sum of $20,000, in section 4 of said account, being the value of 2,500 shares of Maryland Brewing Company’s stock, as not within the operation of the decree of the Court of Appeals. The 4th exception assails the charge of $4,000 in gold in sections 5 and 6 of said account on the same ground. The 5th exception is to the fee allowed John N. Steele, Esq., as not within the terms of the decree, and not properly chargeable as costs against the estate. Mrs. Bauernschmidt’s exceptions to Account B, are: 1st.

That the account is not in accordance with the decision of the Court of Appeals in the cause, and the decree of the Circuit in pursuance of that decision; 2nd. That there is nothing in the proceedings in this case, ¹⁵⁴ nor in the opinion of the Count of Appeals, nor in the original or subsequent decree of the Circuit Court, that authorize the statement of an account embracing the items and charges therein contained. These exceptions will be considered in the order in which they are here stated, except where certain of the exceptions from their nature must be considered together. The first exception of Frederick and William Bauerm schmidt, and the last exception of Mrs. Bauernschmidt to Account A, are to the fee of Mr. Steele, the latter contending that it is not within the terms of the decree, and not chargeable as costs against the trust estate, and the former not resisting its allowance, but contending that it should be allowed from the income, and not from the corpús of the trust estate.

The validity of the deed of trust was the main question in the former case, and involved the largest amount in controversy. It was directly passed upon by the Court, being sustained in part and stricken down in part. In Hamilton v. Trundle, 100 Md. 276 , decided in this Court, January 13th, 1905, it was held that counsel fees were not costs, and if this fee were allowed as such, it would be error. But Mr. Steele’s services were rendered in support of the deed of trust which was held to pass absolutely the particular securities shown to belong to Mrs. Bauernschmidt, but to pass only her life estate (after administration) in the remaining securities embraced therein, and we think it was clearly within the power of the Court, and the scope of the decree to make a proper allowance to Mr. Steele in the adjustment of all questions relating to the trust estate, and the securities in controversy.

This allowance, perhaps, could be properly made, either from the corpus of the securities adjudged to belong to Mrs. Bauernschmidt, or from the income of the other securities in which she was adjudged to have only a life interest, but as the case must, for reasons hereafter stated, be remanded, we are of opinion that the better course is to allow it from the income of any of the securities, as the whole income goes to Mrs. Bauernschmidt. This will cast the burden of maintaining the ¹⁵⁵ deed where it should rest, upon the maker, and will leave the corpus of both classes of securities to pass upon Mrs. Bauernschmidt’s death, as prescribed respectively by her husband’s will and her deed of trust, and we therefore direct that it be so allowed. The second exception of Frederick and William Bauernschmidt to Account A, and the fourth additional exception of Mrs. Bauernschmidt to the same account relate to the $14,000 of gold buried by George Bauernschmidt in his lifetime, and will be disposed of together. Frederick and William claim she should be charged with the whole $14,000, as is done in Account B, and she contends she cannot be properly charged with any part of the gold, while the auditor in Account A charges her with $4,000 only as representing the two sums of $2,000 found by him in the Safe Deposit boxes assigned by Mrs. Bauernschmidt respectively to Frederick and William, but which they refused to accept.

This exception also involves the consideration of Mrs. Bauernschmidt’s 3rd and 4th exceptions to Account B, upon the ground already stated, that it is not warranted by any order or decree in the case. This contention stated in other words, is, that nothing can be included in any account in this case which was not specifically mentioned in the decree of the Circuit Court in the former case, and either specifically affirmed or reversed on the former appeal, without regard to whether the items so objected .to, are in fact proper assets of George Bauernschmidt’s personal estate, and this contention will be considered now as it applies to other items as well as to this gold. The authority relied on for this contention is Crapster v. Griffith, 2 Bland, 24 , and Barnum v. Barnum, 42 Md. 320 , where it was said that a decree of the Court of Appeals sent to the Court of Chancery for execution there, cannot be revised or modified in any particular. How narrow and illogical would be the application of that language to the present case, will appear by a brief reference to the two decrees of the Circuit Court, and the conclusions of this Court upon the former appeal.

Paragraphs A and B of Judge Wickes first decree sus ¹⁵⁶ tained, and paragraph C overruled certain exceptions to testimony, and these were affirmed. Paragraph D declared the whole deed of trust to be void, and required all the securities mentioned therein to be accounted for as part of George Bauernschmidt’s estate, and this was affirmed in part, and reversed in part in the manner before stated. Paragraph E decreed Mrs. Bauernschmidt’s assignment of mortgages to be void, and that these should be accounted for as part of said estate, and this was affirmed. Paragraph F decreed the attempted gift of securities to be ineffectual, and this was also affirmed.

Paragraph G directed an account of the administration of George Bauernschmidt’s estate in accordance with the directions of that decree, and this was reversed, in order that a new decree might be passed in accordance with the opinion of this Court and an account be stated in conformity with such new decree, and the new decree passed by Judge Wickes pursued these directions strictly. The items in Account B to which this objection is urged are as follows: ist. The additional charge of gold, amounting to.................. $10,000 2nd. The fee-simple and leasehold properties and mortgages conveyed to the Baltimore Realty Co. by the Bauernschmidt Brewing Co. March xst, 1899, valued at............................. 100,000 3rd.

Securities held by the Bauernschmidt Brewing Co. as an insurance fund and transferred by it to the Baltimore Realty Co..............................••.................................................. 72,500 4th. Securities on the Books of the Realty Co. since Mch. 1. 1899.............................................................................. 626 75 5th. Securities purchased by the Balt. Realty Co. as an insurance fund...................................................................... 39,929 75 6th.

Cash insurance fund transferred to the Realty Co........... 27,000 Aggregating............................................................1250,056- 50 in excess of the charges made in Account A, and none of