Cornett v. Sandbower, Adm'r

Sybert, J., delivered the opinion of the Court. On November 24, 1961, the appellant, Danville Cornett, while riding as a passenger in an automobile owned and operated by Willie G. Simons, was seriously injured when the automobile struck another automobile operated by Mary E. Krebs. Simons died on December 16, 1961, from injuries sustained in the accident. Thereafter, on April 16, 1962, George F. Krebs and Mary L. Krebs filed a petition in the Orphans’ Court for Carroll County, in which they claimed to be creditors of Simons’ estate by reason of injuries sustained as a result of the automobile accident.

An order was issued against Rosalie Velvet, as nearest living relative of the decedent Simons, to show cause why the appellee, John E. Sandbower, III, who was attorney for the Krebs’, should not be appointed administrator of the decedent’s estate. On April 24, 1962, after Rosalie Velvet failed to answer, Sandbower was appointed as administrator and qualified by posting bond. No notice to creditors has been published by him and there have been no further proceedings in the estate in the Orphans’ Court. ³⁴¹ Sometime prior to June 29, 1962, the appellant, Cornett, consulted a law firm in Baltimore County in regard to recovery for the injuries sustained by him in the accident. Knowing that the decedent had lived very close to the line between Howard and Carroll Counties, the law firm, acting on behalf of the appellant, wrote to the Register of Wills for Howard County on June 29', 1962, inquiring whether letters of administration had been taken out therein on Simons’ estate and received a negative reply on July 2, 1962.

No inquiry was made of the Register of Wills for Carroll County until the end of January, 1963. During the interim, there had been correspondence between the appellant’s attorney and an insurer of the decedent, but it was not shown that the attorney ever asked the insurer whether an administrator had been appointed. While the appellee, prior to his appointment as administrator, had talked to the appellant concerning the facts of the accident, neither the appellant nor his attorney contacted the appellee after his appointment, and the appellee testified that he was not aware of the correspondence between the appellant’s attorney and the decedent’s insurer. On February 5, 1963, the appellant filed suit against the appellee, as the decedent’s administrator, in the Circuit Court for Carroll County.

The appellee filed a special plea alleging that the suit was barred by Code (1937), Art. 93, sec. 112, since it was not instituted within six months after his qualification as administrator. The appellee then filed a motion for summary judgment. After a hearing, during which testimony was taken, the lower court granted the motion for summary judgment. The appellant then entered this appeal.

It is clear that, unless a waiver or estoppel could be established, the appellant’s suit was barred by Art. 93, sec. 112, which provides that executors and administrators shall be liable to suit in any action which might have been maintained against their decedent, “provided, however, that any such action for injuries to the person to be maintainable against an executor or administrator must be commenced within six calendar months after the date of the qualification of the executor or administrator of the testator or intestate”. In the present case, suit was not filed until more than nine months had elapsed since the qualification of the appellee as administrator. ³⁴²