Fleischmann v. Mercantile Trust Co.

Markell, J., delivered the opinion of the Court. This is an appeal from an order overruling a demurrer to the bill of complaint. Mercantile Trust Company is the surviving trustee under the will of Albert Gottschalk and as such is administering the trust estate under the jurisdiction of the lower court. It is also conducting a general banking business.

Lillie Fleischmann died on January 15, 1948, leaving as her next of kin two sons, Albert J. Fleischmann and Edwin M. Fleischmann. Shortly after her death, two wills purporting to have been executed by her were offered for probate, one dated April 15, 1944, affirming and republishing one dated July 29, 1936, whereby she left her entire estate to Albert and appointed him executor; the other dated February 10, 1943, whereby she left her estate in equal shares to Albert and Edwin and appointed them executors. A caveat to the 1944 will by ⁶⁸³ Edwin and the Marceile Fleischmann Foundation, Inc., now pending, states that Edwin on January 2d, 1948, assigned to the foundation all his right, title and interest in and to any legacy or devise in any will of his mother and all interest he had or might acquire in her property should she die intestate. On April 7, 1948, Albert was appointed administrator pendente lite of her estate.

Lillie Fleischmann kept a checking account in the Mercantile and from time to time drew checks on it. She became entitled under the will of Albert Gottschalk, upon the termination of the trusts thereunder, to certain securities, and these securities were delivered to her by the Mercantile. The Mercantile, individually, and as trustee, filed a bill against Albert, individually and as administrator pendente lite, and Edwin and the Foundation, alleging the above facts and that differences had arisen between the defendants and demands had been made upon plaintiff by Edwin and the Foundation to deliver to them certain information in plaintiff’s hands, consisting of (a) photostatic copies of certain checks upon Mrs. Fleischmann’s bank account, (b) certain letters from her relative to the disposition of the securities to which she became entitled under the Gottschalk will and (c) a power of attorney executed by her to Albert; and that Albert had notified plaintiff that it should not give to Edwin or the Foundation any of the information demanded by them. “In view of these conflicting demands and instructions” plaintiff desires the protection of the court, and requests (a) that the court instruct it, both in its individual capacity and as trustee, “as to what steps, if any, it should take in the premises” and (b) in its fiduciary capacity, that the court, pursuant to the Uniform Declaratory Judgments Act, Code 1939, art. 31A, § 1 et seq., determine and adjudicate the rights of the respective parties and (c) general relief. Albert, individually and as administrator pendente lite, demurred to the bill. ⁶⁸⁴ Plaintiff admits that its bill is without precedent but contends that it can be maintained as a bill in the nature of interpleader, State of Texas v. State of Florida, 306 U. S. 398 , 59 S. Ct. 563, 830 , 83 L. Ed. 817 , 121 A. L. R. 1179, or as analogous to such a bill and within the inherent power of a court of equity to devise new remedies to meet new situations.

Plaintiff argues: Edwin demands information. Plaintiff faces a suit by Albert if it gives the information and a suit by Edwin if it