Campbell v. State ex rel. Dittman

Irving, J., delivered the opinion of the Court. The essential facts of this case will be found in the report of the case on the former appeal, in. 57 Md., 486 . After the remand the declaration was amended by adding the averment, that the Orphans’ Court of Baltimore County had ordered the administrator de bonis non to sue the bond of the executor whose letters were revoked. To this amended declaration the defendants pleaded, first, performance, and secondly, that the sale of the Hollins street property, which was reported, was never in fact made to Mrs. Mitchell, who was one of the distributees of the estate and one of the parties in remainder, hut was only colorable; that no money was paid, and the whole thing was prepared and arranged to hold the executor’s bond of Susan Gregory liable.

Issue was joined and trial proceeded to judgment. Under the first exception the ground of appeal is the rejection of evidence intended to support the second plea, which was in substance an allegation of false and fraudulent sale and accounting. The defendants (appellants) offered to prove by Mrs. Mitchell, the person to whom the report states the property was sold, and to whom the same was conveyed, that she did not buy it; and that so far as she knows no consideration was paid the executors. This was the whole offer, and it does not appear it was to he accompanied with or followed by any other proof.

To see that the Court was right in its rejection, it is necessary to recur to some of the facts it was intended to answer, and from the effects of which it was expected thereby to escape. The defendants had offered the executors’ bond, on which defendants were sureties; the appraisement, including Hollins street property as part of the estate, the sale thereof by order of the Orphans’ Court, the report whereof stated that the same was sold for thirty-six hundred dollars, being twenty-three dollars over the appraisement; ⁴ the assent in writing of the executors and Mrs. Mitchell, the purchaser, to its immediate ratification; the order of the Orphans’ Court ratifying the sale, which order recited that the same was passed in pursuance of the written consent of the executors and purchaser. In addition to all this the plaintiff had offered the account of Susan Gregory, surviving executrix, (the other executor having died,) wherein she charges herself with the proceeds of sale of this Hollins street property at thirty-six hundred dollars, claimed and secured allowances for disbursements and stated the balance for distribution. This was under oath and was passed by the Court.

To this was also added the deed of the executors for the property to Mrs. Mitchell, the offered witness. From all this it is clear, that the Hollins street property was a part of the estate, duly appraised ; that by order of the proper Court it was sold; and that the sale was ratified, and the property conveyed away so that it no longer existed as part of the estate, and could not he reached as such unless the sale could he and was set aside by a competent tribunal, and the property restored to the estate. ■ The proceeds of the sale were not forthcoming on the order of the Court, because the surviving executrix said the co-executor who managed the business was dead and she could not respond. Here was an undeniable devastavit, although the testimony offered be all true. It was a wasting of the estate, in violation of duty, for the discharge of which faithfully the defendants were sureties.

The administrator d. h. n. c. t. a. representing distributees and remainder-men sues therefor, and the contention in defence is that because the money was not received from Mrs. Mitchell, the purchaser, and she will so say, hut without the payment thereof they conveyed the property to her, and by that means enabled her to convey to innocent purchasers, therefore the securities are not liable in this suit. In other words the very impropriety of conduct, against which they stipulated in the bond, is urged as a reason why they should not he made ⁵ answerable in this suit at law. This cannot be the law and ought not to be. If that contention were sustained, the bond would be no protection against misconduct, but would be a mere delusion and a snare.

It has long been the law of this State, by uniform decision, that accounts of executors and administrators are only prima facie, and mistakes and errors may be corrected in a Court of law or equity; but a mistake or error must be conclusively shown in a legitimate way. Admissions of executors and administrators may