Dunnigan v. Cummins

Pattison, J., delivered the opinion of the Court. This is an appeal from an order of the Orphans’ Court of Harford County. The appellees filed their petition' in the Orphans’ Court of Harford County asking that the letters of administration granted unto the appellant upon the personal estate of his brother, Andrew Dunnigan, deceased, be revoked. In their petition they allege, among other things, that James P. Dunnigan, a nephew of the deceased; Ella N. Dunnigan, a niece •of the deceased and daughter of the administrator, and one Xawrence Forwood had each filed against the estate of the •decedent a claim which was old and stale, without merit, and “not due by the estate” of the decedent.

The petition also alleges that upon each of these claims suit had been brought in the Circuit Court for Harford County against the administrator, and that he, although notified by the petitioners that the demands made in said suit were unjust and not properly ■chargeable against the estate of the decedent, had refused ‘to defend the suits, and further charges that the administrator is abusing the trust reposed in him and is colluding with the claimants to enable them to absorb the whole personal estate of the decedent and defraud such petitioners of their interest in said estate. The petition also alleges that the administrator in passing his account, intended by him to be a final account so far as the assets of the decedent are concerned, wilfully concealed and failed to charge himself with certain chattels and money which are in his hands belonging to said estate. ²⁹¹ The appellant answered admitting the filing of the claims mentioned in the petition by the parties therein named. The answer also admitted that suits had been instituted thereon, but denied that he was abusing the trust reposed in him by colluding with the claimants to enable them to absorb the estate of the decedent and to defraud the petitioners of their interest therein, as alleged in the petition. In the answer he alleges that the charge made by the petitioners that the trust is not being properly administered is without foundation in fact, and further alleges that as soon as he found that claims were filed against the estate of the decedent by the claimants aforesaid, he rejected said claims and advised each of the claimants that they would have to prove their respective claims' before a jury, and in so doing thought he was fully discharging his duties to said estate.

The answer further alleges that the petition filed was for the purpose of compelling the respondent to plead limitations to said claims, which he declined to do, believing that the discretion in reference to said plea, so far as it concerned the estate of the decedent, is by law i’eposed in him alone. To this answer the formal replication was filed and evidence thereafter was heard upon the issues thus joined, and upon which an order was passed by the Oourt revoking the letters of the appellant as administrator. It is from that order that this appeal is taken. The evidence discloses that Ella Dunnigan, one of the claimants, first placed her claim, for collection, in the hands of Mr. Williams, counsel for the administrator, but as it was afterwards rejected by the administrator, he suggested that she employ some other attorney to look after her claim, inasmuch as he was counsel for the administrator, and at her request turned it over to Mr. Carver, an attorney of the Harford County Bar.

Thereafter Mr. Carver called upon Mr. Williams to ascertain if this claim, as well as- the claim of Dunnigan and Eorwood, could be settled without suit. He was told by Mr. Williams that they could not, that the administrator intended ²⁹² to fight the claims and that they would have to go to Court. Upon this he docketed the suits. Mr. Williams was likewise called upon by both Mr. Webster and Mr. Harlan, counsel for the petitioners, in relation to these claims.

Mr. Webster testified that when asked by him what he was going to do about these claims, Mr. Williams said he was going to let them sue and get judgment, and when asked by Mr. Harlan to have the administrator plead the Statute of Limitations, Mr. Williams replied that the administrator would not plead limitations, and when told by Mr. Harlan that it had been said that a way could always be found to make an administrator plead the statute, he replied by saying that the administrator would oppose any effort made to require him to file such plea, contending that this matter was left to the honesty and discretion of the. administrator. Mr. Harlan testified that the conversation had with Mr. Williams left upon his mind the impression that the administrator did not intend to defend these suits; this, however, was repudiated by Mr. Williams. As to these claims, Mr. Williams testified that the administrator assumed the position that in his opinion these claimants were possibly entitled to something, but how much he was not prepared to say, and he thought it best that the claims should be submitted to a jury for its determination. The administrator, when asked why he rejected these claims and required suit to be brought thereon, replied “I do not want to settle these claims unless they prove them before a jury and know whether they were entitled to it or not.” He further stated that his daughter had lived with her uncle about six years, and when asked by Mr. Harlan, upon cross-examination, whether he had examined the checks and receipts of the decedent and had made investigation to see if these claims had been settled, he said he had examined the papers of the decedent and all of his checks for years bad;:, but he found no evidence that any of these claims had been paid.

When asked why he refused to pay Norwood’s claim, he replied that he did not think the estate owed it, and when ²⁹³ further asked if he thought it was an honest bill, stated he did not know whether it was or not. He was then shown the bill of James P. Dunnigan for board and asked if he thought the estate owed that claim. He replied by saying “He might have owed it, I would not say,” and when asked if he thought it was an honest bill, said he was unable to say, although there had been dealings between them and the decedent had at different times stopped at his nephew’s, James P. Dunnigan’s, home, but, like the other bills, he preferred the Court to decide it. He was not further interrogated in relation to the claim of his daughter.

Other witnesses, produced on the part of the petitioners, likewise testified to the fact that Ella Dunnigan had for several years lived with and kept house for her uncle. The evidence discloses that certain articles, said to have been the property of the estate, were not returned by the administrator in his inventory of the property of the estate. It was shown that the decedent had, at the time of his death, a watch said by some of the witnesses to be worth twenty-five or fifty dollars that was not returned in the inventory but withheld by the administrator. It was likewise shown that several of the petitioners had agreed that their uncle, the administrator, should not return this watch, but should withhold it as his own property, as they did not wish it go out of the family and regarded him as the proper one to have it.

There is no evidence, however, that others of them had agreed to this or had been consulted, nor was the administrator examined in relation thereto. By the evidence it was disclosed that in addition to the watch, the administrator had failed to return, as part of the estate, one pair of sleeve buttons, two feather beds and ten dollars in cash. The sleeve buttons had, the year before the death of the decedent, been given to him by his niece, Ella Dunnigan. The administrator, as he stated, was present at the time when these buttons were presented by his daughter to her uncle.

When so presented, the decedent said to his niece, “Why, Ella, I will wear them, but do not think it will ²⁹⁴ be long; when. I am gone you can have them.” Thereafter he “never saw the sleeve buttons or had anything to do with them.” As to the feather beds, the administrator stated that when his daughter Ella was about to go to her uncle’s to live with and care for him, she told him that her uncle had no beds. It was then that he gave her a large bed which he had, from which his daughter made two. After the death of the brother one of these beds was earned to the home of the administrator, while the other one at the time he testified was at the home of Andrew Cummings, his nephew, one of the petitioners in this case, and is still there waiting to be carried to the home of the administrator.

Andrew Cummings, however, testified that the administrator, his uncle, had told him that the bed that was not returned was one that Ella had saved from the fire that destroyed her uncle’s house several years before; but this was positively denied by the administrator. The decedent died at the home of Andrew Cummings. A few days before his death he had drawn from the bank $100. Either the day before or the day after his burial, the testimony of the administrator and the nephews .being at variance on this point, the trunk of the decedent, which was at the home of Andrew Cummings and which contained a small box, was examined by them and the box taken therefrom.

Upon examination money was