Donaldson v. Raborg

Miller, J., delivered the opinion of this Court. The first question to be determined in this case is, what matters are now, in view of the decision of this Court on the former appeals between the same parties, open for consideration ? Those appeals were from an order of the Orphans’ Court, of the 26th of September, 1866, dii’ecting the executors of Donaldson to pay over to Catharine M. Raborg, as administratrix, d. b. n., of Christopher Raborg, “ the principal sum without interest” of $4228.76. The administratrix had, in June, 1866, filed a petition, alleging that Donaldson, the former administrator, d. b. n., of Raborg, stood charged with this sum as due the estate of his intestate, in his last adminis ⁵² tration account, passed April 25th, 1837, and remained so charged therewith down to the time of his death, in Decemher, 1865, and praying his executors he ordered to pay it over to her with interest.

To this petition, the executors, protesting their testator had duly administered the assets, and paid the distributees their shares, and reserving the right to, show the 1 fact of such payments thereafter, if their pleas should be held insufficient, pleaded three special pleas. One of which relied on limitations and lapse of time. Nothing was before the Court when this order passed, except the petition, the plgas, the two administration accounts of Donaldson, certain docket entries, and a petition of C. R. McClellan, filed in 1859, and the answer of Donaldson thereto, which will be more particularly noticed hereafter. Both parties appealed, the executors relying upon their pleas, and the administratrix insisting the order should have embraced interest on this sum from the 25th of April, 1837.

In January, 1867, this Court delivered an opinion and passed a decree affirming the order. The administratrix, then in February, 1867, filed another petition, praying the executors may.be “made to render an account of the assets received and the payments made by their testator,” under the 11th sec. of the 93d Art., of the Code, and in such account to charge themselves with interest on this sum to be calculated in such manner as the Court should think just and right. To this petition, the executors filed an answer, tendering an account and insisting their testator had fully administered the estate, and paid away in due course of distribution this whole balance to the parties entitled to receive it. .Testimony was taken on both sides, and on the 29th of May, 1867, the Court below passed an order rejecting the account tendered by the executors and requiring them to state another, charging ^ themselves with this sum and with simple interest thereon from the 25th of April, 1837. From this order both parties have now appealed.

It has been urged in argument by counsel for the administratrix that the affirmance of the first order irrevocably settles ⁵³ the question that the executors are responsible for the principal sum — that this is res adjudicóla — and yet they insist, at the same time, that the administratrix is not bound as to the interest. To this position we cannot yield our assent; for, in our opinion, it is very clear that if the affirmance of this order concludes the executors from now showing the principal had been paid away by their testator in due course of distribution, it is equally conclusive as to the claim of the administratrix for interest. It is established by a class of cases of which Young vs. Frost, 1 Md. Rep., 395 ; Hammond vs. Inloes, 4 Md. Rep., 164 , and Thomson vs. Albert, 15 Md. Rep., 282 , are instances, that a decision once made by the appellate court in the progress of a cause, or an order or decree affirmed by that Court, thereafter, “ becomes the law of the case ” in its further progress: that is it becomes the law for both sides and “ definitively settles the rights of the litigant parties.” The principle of those decisions is that neither party, in the further progress of the cause, can depart from the express terms of the affirmed order or decree, nor raise any questions which might have been raised before the order or decree appealed from, was passed. The order here affirmed is just as explicit that the interest shall not, as it is, that the principle shall be, paid over to the administratrix, and whilst the executors might then have relied on actual payment as a defence, she might also have then so framed her petition as to raise the question of interest.

We think, however, the present case is not governed by those decisions, but rests upon entirely different grounds. In the first place we find nothing in the opinion of this Court on the former appeals indicating a purpose to debar the parties from raising the questions now presented, by further proceedings in the Orphans’ Court. In that opinion the Court treated the petition as an application made exclusively under the 72d. sec. of the 93d Art. of the Code, and after stating that there was no dispute between the parties about facts, and that the pleas admitted (as in express terms they did) that this sum of $4228.76 remained in Donaldson’s hands as administrator at ⁵⁴ the time of his death, addressed themselves to the question of the legal sufficiency of the pleas as technical bars to the proceeding and claim of the administratrix, and decided they were properly overruled. Then in reference to the claim for interest they say in the then aspect of the case that the Orphans’ Court had no power to award it; that if a preliminary proceeding had been instituted under sec. 11 of the same Article to compel the executors to render a further account of Donaldson’s administration, or if a prayer to that effect had been inserted in the petition then under consideration, interest upon proper proofs might have been made a subject of charge in such account and upon the balance thus ascertained including principal and interest, an order under section 72 would operate, but as no such preliminary proceeding had been taken, and no such prayer inserted, the Court below was right in refusing to award interest.

We take this to be rather an intimation or suggestion that by further proceedings an accounting should be had under section 11, than a determination to the contrary. Perhaps the proper course to have been taken by the Court, was instead of affirming the order, to have remanded the cause with leave to amend the petition, and leave to the executors to answer. But however this may be, and whatever effect the affirmance of the order might have had to preclude the executors from setting up on their motion, by further proceedings, the defence now relied on, it is sufficient that the administratrix has herself, by further proceedings at her instance, asked the Court to compel the executors to discharge the duty imposed on them by the 11th section of our testamentary law. Under this section every administrator or executor of a deceased administrator, when rendering the account therein required, either voluntarily or by compulsion, whilst compelled to show the assets received, has the right to show • the payments and disbursements made by his decedent, and of this right thus conferred by statute, he cannot be deprived by any action or decision of the Courts.

Upon this ground we distinguish the present case from those before cited, fully ⁵⁵ adopting the law announced in those decisions and doing no violence to the rule stare deeisis. We must, therefore, proceed to consider the questions presented by this record unembarrassed by the decision on the former appeals. First, we must assume that there are no unsatisfied creditors of this estate. The lapse of time from the death of Raborg, in 1815, and the passing of the two accounts in 1834 and 1837, and the fact that those accounts show payment in full of all claims of creditors then exhibited, and the lapse of time from that date to the filing of these petitions in 1866, without any such claims being presented, compel us to presume that all debts have been paid.

Lark, et al., vs. Linstead and Heath, 2 Md. Rep., 420 ; Gardner and Hughes, exrs., vs. Simmes, a. d. b. n., 1 Gill, 425 . Another preliminary question is presented in the exceptions to the account proposed for passage. It is said that all the allowances therein claimed are based on alleged payments made anterior to the date of the last account, and thus contradict its admission that this balance was then due the estate. This objection is not in our opinion tenable.

We have said, the executors when accounting under this 11th section, have the right to show payments and disbursements made by their testator. They are in the same position in which he would be placed if now living, and offering to pass an additional account; and it is the usual practice in stating a subsequent account, to claim and have allowed payments not credited in the previous one, though made prior to its passage. But this is the case of payments claimed to have been made to distributees, and there is the stronger reason for their allowance, because there is nothing in our testamentary system expressly directing a distribution account in all cases to be stated, or distribution made in the Orphans’ Court, or under its direction. The law says, after debts are paid, “ the administrator shall proceed to make distribution” to the next of kin, and in case the surplus consists of property, in specie, and “ he cannot satisfy the parties,” he may have them summoned and ⁵⁶ distribution made under the Court’s direction, or the property-ordered to be sold, (Code, Art. 93, sec. 138,) and he may appoint a meeting of persons entitled to distributive shares, or legacies or a residue, and make payment or distribution under the Court’s direction and control.

Code, Art. 93, sec. 143. Ordinarily it would be safer for an administrator to pursue the course pointed out by this latter section, but there is no express command of the law that he should do so. The duty is cast upon him, in the first instance, to ascertain who the distributees and persons entitled are — he administers the estate in pais, (4 Md. Ch. Dec., 450,) and if he pays the right parties their proper shares he is protected, whether it is done under the sanction of the Court or not, and it makes no difference whether such payments be made before or after the passing of an account, showing the balance for distribution.

Such payments, where estates are solvent, are frequently made before such an account is passed, and in some cases an administrate!' will be compelled to make them. Code, Pub. Gen’l Laws, Art. 93, secs. 140, 141. The main question in the case now presents itself — has this surplus apparently due the estate, by the account of the 25th of April, 1837, been paid, to the persons entitled to receive it?

In order to determine this we have to examine the transactions and dealings of a deceased administrator with this estate and those interested in it, extending over a period of seventeen years, the last of which took place nearly thirty years before the first of these petitions was filed; and this is to be done too after the death of all the active participants in those transactions who, if alive might have aided us with their testimony in. arriving at the truth. There is submitted for our inspection a large number of papers consisting of deeds, mortgages, receipts, accounts, and proceedings in chancery and in insolvency, some of which cannot, at this late day, be satisfactorily explained, and about which, in some particulars, theories and inferences on either side niay be true. It is however clear that in 1837, and long prior to that time, all the ⁵⁷ parties then entitled to claim this whole surplus, were of full age, laboring under no disability, and lived all of them for at least seventeen years thereafter, and during all this period no steps were taken by any of them to assert claim to this money. In the former case this Court said that neither laches nor limitations can strictly apply to the administratrix, because her petition was filed in June, 1866, soon after letters were granted to her (until which time her right of action had not accrued) and but a short time after the death of Donaldson, in December, 1865; and all that was stated in that opinion as to the administrator being a trustee for the next of kin, was said in view of the controlling admission then made that this money was in Donaldson’s hands as administrator unadministered at the time of his death.

But as now presented this is not the case of an 'admitted possession and non-distribution of this money, thereby making a continuing trust where the * possession of the trastee operates no bar, because such possession is all the while according to his title, and where an administration ch bonis non was necessary in order to pass the title to the money to the distributees. The defence now relied on goes behind the title and claim of the administratrix and asserts that Donaldson paid this surplus to the persons entitled to receive it, thus raising purely a question of fact in the solution of which the distributees and the executors of the administrator ai-e alone interested. In dealing with the evidence as applicable to this issue wre are at liberty to, and, under the decision in Ridenour, et al., vs. Keller, 2 Gill, 145 , must, consider lapse of time, acquiescence and laches, and give full effect to every presumption which the law allows, and draw every reasonable inference in favor of the due discharge of his duty by the administrator. We may here also remark that when the former decision was made it did not appear who the distributees were, or that they had made any disposition of their respective shares, and in short none of the facts and evidence now shown and presented were 'then before the Court. ⁵⁸ The record now shows that Raborg died in 1815, leaving a widow and eight children, most of whom were then of age and all became so, long prior to 1837.

He left a large real and considerable personal estate, and was at the time of his death a partner with his son Christopher in the firm of C. Raborg & Son. Administration on his estate was granted shortly after his death, to his two sons, Christopher and William. Donaldson’s connection with the estate commenced in 1820, when by an agreement signed by the widow and seven of the children, he was appointed their agent to settle up the personal estate and the affairs of the partnership. About the same time proceedings for the sale of the real estate were instituted under the Act to direct descents.

In 1823 the administrators were removed. On the 5th of June, of that year, Donaldson was appointed administrator de bonis non, and some time thereafter brought suit on the bond of the former administrators. The 'net amount ($14,822.55) recovered in this action rendered necessary the passage of his second account in April, 1837, for by his first account passed in July, 1834, he had over paid the estate. When that suit was instituted is not shown, but the judgment was not recovered until April, 1836, and was probably not paid until shortly before the passage of the second account.

It is insisted on the one side, and denied on the other, that the shares of Christopher and William, the defaulting administrators, in this prospective surplus were considered and allowed by the referees in making up the amount for which this judgment was rendered. The suit was against the administratrix’ of William Raborg, a surety on the bond, who was admitted in argument, to have been a brother of the intestate. The award for $15,000 was made in April, 1836, Donaldson himself being one of the referees. It is said there was no plea of set-off, and that the referees acting under a mere “ rule of reference” could not with propriety have considered these prospective shares.

We are not furnished with the pleadings ⁵⁹ or any other part of the record except the award, but we see no difficulty, even without such plea, in the allowance being made, if it had been asked for, and not objected to by Donaldson. It would certainly be very unreasonable to suppose that these parties would have allowed a large judgment to be recovered against the estate of their deceased uncle for their default, without making an effort to diminish the amount by giving up their shares in whatever surplus might remain for distribution from the proceeds of the judgment; and it would be still more unreasonable to suppose that those who represented the uncle’s estate would not have insisted on this allowance, or that Donaldson, the trusted and confidential friend, agent and professional adviser of all the parties, who must have been familiar with the estate and the debts to be paid, and therefore knew what the surplus would be, and could easily have calculated the precise amount of these shares therein, would have objected. But for more than thirty years no claim to a share in this surplus was ever made by either of these sons, or by any one claiming to represent either of them, or the creditors