Cook v. Aronheim

Collins, J., delivered the opinion of the Court. One Benjamin Sternheimer died December 24, 1942. His will was admitted to probate by the Orphans’ Court of Baltimore City on January 8, 1943. Belle H. Sternheimer, the widow of the deceased, and Fillmore Cook, named as executors of the will without bond, qualified the same day. ' The inventory of the personal estate of the deceased, Benjamin Sternheimer, was not filed until February 1, ¹⁴¹ 1944.

The first administration account was filed by Fillmore Cook, surviving executor of Benjamin Sternheimer, on June 13, 1945, Belle H. Sternheimer having died on November 1, 1944. The account shows that the corpus of the estate of Benjamin Sternheimer consisted of: Appraised Value Preferred Stocks..........................$9,347.38 Common Stocks........................... 9,489.13 Bonds..................... 84,031.45 Balance in Savings Banks & Building Associations................ 10,055.12 Cash in Bank............................. 2,147.78 Cash in home............................. 18.50 Diamond Stud............................ 250.00 $115,339.36 Six exceptions to this first administration account were filed by residuary legatees on June 14,1945. The Orphans’ Court by order passed on July 30,1945 sustained the first, second, and third exceptions; held for further hearing and consideration the fourth exception; partially sustained the fifth exception; and did not pass on the sixth exception. From that order of the Orphans’ Court, the said Fillmore Cook in three capacities; (1) As executor of the last will and testament of Belle H. Sternheimer; (2) as remaining trustee under the last will and testament of Benjamin Sternheimer; (3) as surviving executor of the last will and testament of Benjamin Sternheimer; appeals to this Court.

Flack’s Code, 1939, Article 5, Section 64; Dorsey v. Warfield,, 7 Md. 65 ; Cecil v. Cecil, 19 Md. 72 , 81 Am. Dec. 626 ; Meyer v. Henderson, 88 Md. 585, 590, 591 , 41 A. 1073 , 42 A. 241 . Here he abandons his appeal on the second exception whereby the Orphans’ Court ordered that one half of the executor’s commissions be allowed the estate of Belle H. Sternheimer, the said Fillmore Cook having distributed ¹⁴² all the executor’s commission to himself in the account filed. The order on the first exception struck from the administration account charges of $16.89 for interest due on the income tax for the year 1942; $30.41 for interest due on the income tax for the year 1943; and $49.53 as interest payment on the delayed federal estate tax return.

The appellant states that he did not file the federal income tax returns for the years 1942 and 1943 until December 26, 1944. We see no reason why the estate should be penalized for the failure of the executor to file the income tax returns in time. The Orphans’ Court was correct in disallowing these items which should be paid by the executor personally. In the testimony before us he fails to adequately explain why the interest was paid in the amount of $49.53 on the delayed federal estate tax return and therefore the Orphans’ Court was correct in disallowing that item.

The fourth exception relates to the seventeenth clause of the will of Benjamin Sternheimer. In that clause he recited the fact that during his lifetime he had endeavored to provide a separate estate for his wife, Belle H. Sternheimer, of at least $40,000 to be exclusively owned and controlled by her, irrespective of other gifts, legacies, and devises made to her, by conveying to himself and her, as tenants by the entireties, certain ground rents, investments in Building Loan Associations, and bank funds upon such terms that upon his death such ground rents, investments, and funds would become the sole property of his wife. In the seventeenth clause he directed that should these ground rents, investments, and funds not equal or exceed the value of $40,000, “then from the estate of which I may die siezed and possessed, I give, devise and bequeath unto my said wife, Belle H. Sternheimer, such additional ground rent investments, Building Association investments, or cash absolutely as may be necessary to bring the total value of the separate estate of forty thousand dollars, which I have endeavored to ¹⁴³ create and provide for her after my death to said value of forty thousand dollars.” The appellant claims that it was his duty as surviving executor to ascertain if the jointly owned property aforesaid amounted to $40,000. He secured the services of two of the appraisers of the Orphans’ Court to make an appraisal of this jointly owned property.

They arrived at an appraisal of $37,961.39 and therefore he made a charge in his administration account of $2,038.61 to make up the amount of $40,000. This fourth exception was to this charge of $2,038.61, the ex-ceptants alleging that the fair market value of said jointly owned property would aggregate the sum of $40,000. The Orphans’ Court disallowed this item of $2,038.61 and ordered that it be held by the surviving executor for further consideration of the Court, “when and if the exceptants and the surviving executor shall stipulate as to the filing of the inventory of said jointly owned property, prepared by the appraisers of this Court at the request of said Surviving Executor, and a further stipulation that said question of valuation shall be heard by this Court upon the testimony to be produced by said exceptants and said Surviving Executor in connection with the valuation of said property.” As there was no determination of this question, held for further consideration, there is no appeal from that ruling. Mack v. Pairo, 136 Md. 179, 182 , 110 A. 198 ; Fleishman v. Kremer, 179 Md. 536, 542 , 20 A. 2d 169 .

The question comes here, however, on an exception to the refusal of the Orphans’ Court to admit the appraisal in evidence at the hearing. The Orphans’ Court did not abuse its discretion in refusing to admit this appraisal in evidence until testimony could be taken before that Court as to the valuation of said properties and the fairness of the appraisal. The third and fifth exceptions relate to the nineteenth item of the will of Benjamin Sternheimer whereby the rest, residue, and remainder is left unto Fillmore Cook and the Safe Deposit and Trust Company of Baltimore, ¹⁴⁴ in trust to pay quarterly the net rents, issues, and profits therefrom to his wife, Belle H. Sternheimer, for her life “and in the further trust that after the payment of the Collateral Inheritance taxes due on the distributive shares hereinafter set forth, which I direct my said Trustees to pay from the corpus and any rents, issues, income and profits remaining unpaid to my wife at the time of her death, to distribute and divide said corpus and all rents, issues, income and profits thereof which shall not have been paid at the time of my death to my said wife, Belle H. Sternheimer, among and unto the following persons in the following sums and proportions.” The Safe Deposit and Trust Company refused to act as trustees for this trust. These exceptions are to the allowance of an aggregate amount of $6,761.81 in the account under dispute to Fillmore Cook, trustee for benefit of Belle H. Sternheimer, life tenant, claiming that this amount is not income to the estate of Belle H. Sternheimer, but the same passes in accordance with the provisions and directions of paragraph nineteen, of the will of Benjamin Sternheimer.

The Orphans’ Court ordered that of this sum $2,183.88 is disallowed as income to the estate of Belle H. Sternheimer and should be a part of the