De Bearn v. Winans

³⁹² Boyd, C. J., delivered the opinion of the Court. There have Been so many appeals in reference to the bonds in controversy in this case that it will perhaps be well to recall just what has been determined. It was decided in Prince de Bearn v. Winans, 111 Md. 434 , that the Prince was “entitled to a decreé setting aside the distribution of the fund made by the Orphans’ Court and cancelling the releases given by him in his own right and as guardian to the trustees and administrators, and that he is further entitled to have the two-thirds of the trust fund which were distributed to his two children awarded and paid over to him absolutely, and to hold the same in his own right.” Eor the reasons stated in the opinion, that general statement was qualified by saying: “We will not require them (the trustees) to account for or to refund to him either the costs incurred in and about the distribution or the commissions allowed to them as administrators in the Orphans’ Court * * * Eor the same reason we will direct the costs of this ease to be paid out of the portion of the fund awarded to the appellant before turning the same over to him.” The “trust fund,” as it is spoken of in the opinion, consisted of railroad bonds which had been distributed by the Orphans’ Court of Baltimore City to the two children of the Prince under a mistaken theory of the law applicable to the distribution. 2. Mr. Bernard Carter was appointed by the Court to represent the children in that case, as they were the real parties in interest.

At the time the decision above referred to was made, no question had been made about Mr. Carter’s compensation and hence it was not then passed on, but after the case was remanded a new decree was passed and in that a fee was allowed him out of the fund. The Prince appealed from that allowance, and Mr. Carter also appealed from the amount allowed him. In De Bearn v. Winans, 115 Md. 139 , we determined that Mr. Carter was entitled to the amount he claimed, and that it was to be paid out of the property awarded to the Prince by the former decision; his right to a ³⁹³ fee and the amount were then and there definitely determined, and they are therefore no longer open questions and will not he further discussed. 3. No question was raised at the argument of this appeal about the claim of Messrs.

Barton, Wilmer, Ambler and Stewart, who were formerly associated with Mr. Leon, solicitor and attorney in fact of the Prince. Since the case was argued, a letter has been received by the Court from Mr. Barton stating that Mr. Leon had requested him to write that the matter of their fee, for which provision was made in the decree of June 10th, 1912, now being reviewed, had been settled out of Court. It will therefore he unnecessary to refer to that further. 4. The costs of the first case were expressly directed to he paid out of the portion of the fund awarded to the appellant, but we do not understand why the amount of the costs is named in this decree as $1,569.60.

In the decree of June 6, 1910, which was passed on by us in 115 Md. 139 , that was reduced to $1,477.00. While we did not discuss that particular item we reversed the decree on two grounds only— that it did not provide for the cancellation of the registration of the bonds, and that Mr. Carter was entitled to a fee of $4,000.00 instead of $3,000.00. In remanding the case if we had thought there was error in reducing the amount we would have said so. The amount of the costs to be allowed should therefore be $1,477.00. 5.

The most important questions in the decree appealed from are necessarily more or less interwoven with the judgments of condemnation rendered in favor of attaching creditors, which are involved in Numbers 91-98 of the docket of this term. They were decided before this decree was passed, but the records in those cases were for some reason transmitted to this Court five weeks after this one was received. In passing on the decree we will therefore be compelled to refer to those cases. It may be well in the beginning to say that Point 4 in what is called a “motion,” filed in Nos. 95 and 96, does not correctly state what was ³⁹⁴ done in the case of Be Bearn v. Prince Be Bearn, 115 Md. 668 , where it says, “The judgment seeks to apply a different rule of law and a different construction of section 10, Article 9, of the Maryland Code of 1904, to these particular bonds from that which would apply to all other cases of registered coupon bonds of foreign corporations located within the State,” etc. That opinion and others in that volume of the Maryland Deports pointed out the peculiar and unusual conditions existing in reference to these bonds and, as was plainly shown by the opinion, this Court concluded that these special facts and circumstances connected with the bonds differentiated this case from cases in which there was the simple question whether or not registered coupon bonds of foreign corporations are liable to attachment when located in this State; but of course any other case of like facts and circumstances would be governed by the same construction of that section, and the opinion nowhere indicates or suggests that a different rule would be applied to- “all oilier cases of registered coupon bonds of foreign corporations-located within the State.” The attorney for the appellant has displayed great industry in the presentation of the various appeals we have heard, but he' has not yet brought to-our attention any decision which was based on such peculiar facts as we have before us.

There were a large number of coupon bonds, payable to-bearer, which were distributed to the two children of the appellant, but they were erroneously so distributed, as we held in the case in 111 Md. 434 . Doubtless in order to-comply with the requirements of the American Bonding Company,' which was surety on the appellant’s bond as guardian, and possibly acting under Chapter 270 of the Acts of 1906 (sec. 39 of Art. 93 of Code of 1912), which authorizes fiduciaries, including guardians, to arrange with such surety for the safe keeping of money, assets and property for which they are liable, those coupon bonds were registered, as to the principal, and deposited in the vault of the Safe Deposit Company of Baltimore City, under the ³⁹⁵ arrangement made with the American Bonding Company and Messrs. Alexander Brown & Sons, shown in this and other records of the several cases which have been before us. The appellant filed his bill of complaint in the lower Court and prayed, amongst other relief sought, that the proceedings of the Orphans’ Court be declared void, that the releases given by him to the trustees and administrators be cancelled, and for general relief.

We sustained his contention and held that he “upon the death of his wife and the probate of her will became entitled in his own right to the bonds held by the trustees under the deed,” and that “it necessarily follows that the return by them of the bonds to the Orphans’ Court as part of his wife’s estate, and the attempted distribution thereof by that Court as part of her estate, was without warrant of law and of themselves operated to confer no title to the bonds upon the persons to whom the distribution was made.” We also said “That property is still in existence and within reach of the Court and it is but equitable that it should be returned to him,” and we then concluded that opinion by stating what is quoted in the first part of this opinion. The Court- undoubtedly had jurisdiction of the bonds in the equity case, as it did of the appellant, the infant children and subsequently of the American Bonding Company and Alexander Brown & Sons. While the case reported in 111 Md. was pending in this Court, and soon afterwards, certain parties claiming to be creditors issued attachments against the Prince and became parties to the equity case. After the mandate from this Court controversies arose between the appellant and others as to costs and fees and also between him and the attaching creditors.

The different parties in interest presented to the lower Court drafts of decrees according to their several contentions. The one presented by the appellant recited the facts in full and amongst other things provided that the clerk of that Court should open the safe deposit box containing the bonds and bring them into Court, that he be ordered “to make and ³⁹⁶ execute such instruments relating to each and every one of said bonds as may be requisite to accomplish the transfer of the registration of said bonds, and each and all of them, upon the boohs of the respective corporations issuing them from the said infants to bearer, and deliver such instruments with said bonds to the plaintiff” or his attorney in fact — subject to certain provisions relating, to the holding of some of the bonds. The Court passed the decree in accordance with the contention of the other parties, and it was passed on by us in De Bearn v. Winans, 115 Md. 139 . These were, therefore, coupon railroad bonds, payable to bearer, which without warrant of law and by a void distribution were distributed to the two infant children, when they in fact belonged to the appellant, and then, in pursuance of that void distribution, were improperly registered in the names of the children.

The appellant as well as all other parties to the cause conceded that under our decision in 111 Md., the registration should be cancelled, and this Court said in 115 Md. 151 , “This was an essential part of any decree made in conformity with said opinion,” and reversed that decree because it • did not so provide. As Juuge Burke said in 115 Md. 676 , “'Their registration in the names of his infant children is a mere shadow upon the title, which the Court has power and which it is its duty to remove.” The cancellation of the registration of the bonds was authorized and in effect directed by the Court before any attaching creditor had intervened or we had any knowledge of them, and of course nothing was said as to the rights of persons not parties to the case. But after they had intervened in the lower Court we sustained in 115 Md. 139 the decree in so far as it directed that the bonds should be kept “where they were,” but held there was error in ordering them to be kept “as they now are,” without providing for the cancellation of the registration. The prolonged controversy and the various appeals have interfered with our original directions being thus far carried out, but the time must come, even though, if we judge from the ³⁹⁷ past, it ’ may be still far off, when, our decision, rendered December 3, 1909, will in that respect be enforced.

The cancellation of the registration of the bonds was not directed by the equity Court in order that the attachments might become effective, but because that was essential in order to restore to the appellant what we decided rightfully belonged to him. It would have been done if there had been no attachments or controversy between the appellant and other parties. It was necessarily a sequence of what had already been decreed, and the only reason it had not been done two years before the judgments of condemnation were rendered was that the controversies which we have spoken of had arisen after the original case had been decided by us. It cannot,