Foley v. Syer

Boyd, C. J., delivered the opinion of the Court. This is an appeal from an order of the Orphans’ Court of Baltimore Oity dismissing a petition of the appellant filed in that Court. The last will and testament of John Foley, the father of the appellant, was admitted to probate in January, 1868. and Martha Y. Foley and William B. Larmour qualified as executors. The testator, after leaving two hundred and fifty shares of “Lochiel Stock” to his three sons as therein provided, left all of the rest and residue of his property to his wife, “Martha Virginia Foley, to be held and enjoyed by her together with the rents, income and profits thereof, for and during the term of her natural life and no longer, with power and full authority to her to- invest and ⁸¹ reinvest the principal according to her preference for any specific security, and to use and apply the income as she pleases”.

He then directed that after ihe death of his wife his estate “be applied and disposed of” as therein provided, and that, his three sons having during his lifetime and by the provisions of his'will received more than $10,000.00, such of his children as may be living at the death of his wife, and who have not been thus advanced or mentioned in his will, shall each receive the sum of $10,000.00, so as to put them on an equality with their three brothers, and that the balance then remaining be equally divided among his children, share and share alike. He provided that if any one of his children die “without leaving behind it living at the death of my said wife heirs of or on its body begotten, the share of such child shall be thrown into the common stock,” and then authorized and empowered his wife, “if she shall at the time deem it expedient and proper, to grant and assign any security she may hold or cash money, or both, to the amount- altogether of ten thousand dollars, to either of my daughters or to each of them, at the time of the marriage of my said daughters * * * and any daughter thus provided for shall be considered equally advanced with my said three sons — as she then will already have the ten thousand dollars which upon my wife’s death she would have 'first’ received”. The petition alleges that William B Larmour is deceased and that Martha Virginia Foley married about two years after the death of John Foley and her present name is Martha Virginia Syer; that under orders of the Orphans’ Court dated September 14th, 1868, and December 29, 1868, the executors were authorized and directed to invest the sums of $6,000.00 and $14,000.00 respectively, in such securities as the widow might desire, and that so far as the records of the Orphans’ Court disclose no change had been made in those investments and they are still under the jurisdiction and authority of the Court; that under the adminis ⁸² tration accounts passed in the estate of John Foley property and cash amounting to $44,519.67, were distributed to the widow for life — including thirteen coupon bonds of the United States of the par value of $1,000.00 each, and fifty-six shares of the Danville National Bank, of Danville, Pa., valued at $7,280.00; that no order had been passed authorizing any change in those investments and they are still within the jurisdiction and subject to the orders of the Court; that the administration of the estate of John Foley has not been completed, the orders passed not distributing the rest and residue in accordance with the terms of the will. It is then alleged that Martha Virginia Syer now resides with her husband in San Jose, California, where she has lived for many years; that she has not made any report to the Court for the past forty-four years; that during all that time property in which she only has a life estate and in which petitioner has an interest under the terms of his father’s will has been completely under her control, and he has no knowledge nor means of knowing whether the money and property have been invested, and, if invested, in what it is invested.

It prays that an order he passed requiring her to file a report showing the investments representing the rest and residue of the estate, and requiring her to produce in Court the securities, etc. On May 25th, 1912, an order was passed requiring her as surviving executrix to produce in Court the rest and residue of the estate, but on September’ 20th, 1912, she filed a petition asking the Court to rescind the previous order, which she alleged had been passed without giving her an opportunity to answer, and to allow her to answer the allegations contained in the petition. That was done and she filed an answer as surviving executrix. It denies that the investments are still under the jurisdiction and authority of the Court, and alleges that the executors on May 22nd, 1869. filed their administration account under which they finally distributed the estate, according to the terms of the ⁸³ will, to Martha V. Eoley, widow, and they received a release from her which was duly recorded. She admits that the property in which she has a life estate has been completely under her control and alleges that she as surviving executrix is not required to further report to the Court because she has stated her final administration account, distributing the assets according to the terms of the will.

She alleges that acting under the terms of the will she .and William 33. Larmour, executors, distributed the rest and residue of the estate to Martha Virginia Eoley, individually, and that it is now vested in her. in her individual capacity and not as surviving executrix; that at the time the administration accounts were passed she was advised by counsel that hhe, in her individual capacity, had the complete control of the funds, constituting and composing the rest' and residue of the estate, and acting on that advice, she, in her individual capacity, assumed control of the same, and has ever since done so; that as surviving executrix she has no assets in her hands, and the Court has no jurisdiction in the premises. The petition was amended by alleging that the securities on the bond of the executors had long since been dead and their estates fully distributed; that in the event of the Court determining that the estate of John Eoley is still within its jurisdiction the surviving executrix be required to file a new bond; that she be required to produce in Court the corpus of the estate, and that the same be invested under the direction of the Court; that the administration accounts, which do not show a full administration and distribution, be amended and corrected and the surviving executrix be ordered to file an account distributing the rest and residue of the estate. An answer was filed derying the matters and facts set forth in the amended portion of the petition.

Testimony was taken and the petitioner testified that he is a son of the testator and was eighteen years of age when his father died; that Mrs. Syer is his sten-mother; that his father had eight children by his first wife, and Mrs. Syer ⁸⁴ had two daughters by John Foley and one son by her second marriage. The first account of the executors charges them with $66,232.83, and they were allowed credits for payments and disbursements (including the Loehiel stock) amounting to $21,713.16, and then follows the entry: “Balance due the estate and which is retained by Martha Y. Foley, the widow of the said deceased, and one of these accountants, under the terms and conditions mentioned in the will of said deceased, to be held by her during her natural life, viz: 4 shares of Susquehanna River and North and West Branch Telegraph Co. stock, incorporated by Act of Penn. Legislature, A. D. 1849, which is worthless, and so returned; 13 coupon bonds of the IT. S. for $1,000 each appraised at $1,060 each, $13,780.00; 56 shares of Danville Rational Bank of Danville, Pennsylvania, appraised at $130.00 per share, $7,280.00; and in cash, $23,459.67; total, $44,519.67; estate accounted for, $66,232.83.” That account was passed by the Orphans’ Court on May 22, 1869.

On May 8th, 1871. a second account was passed, in which the executors charged themselves with cash received amounting to $1,920.00, and after being allowed $216.86, there was distributed: “Balance due the estate, being the amount to be paid to Mrs. Martha Y. Syer under the will of the deceased, $1,703.14.” On May 22nd. 1869, Martha Y. Foley executed a release to the executors in which she acknowledged receiving $2,522.79 in cash, $13,780.00 in TJ. S. bonds, $7,280.00 in Danville Bank stock, which, together with the amount of money theretofore received by her, to wit, the sum of $23,-062.83, “is the full amount coming to me, as widow and devisee of said John Foley, including the amount of my commissions as executrix, under account passed by Orphans’ Court of Balto. City this day,” and on May 3rd, 1871, she executed another release for $1,703.14- — “said balance being due and payable to me under a clause of the said will as the widow of said deceased.” ⁸⁵ Prior to the passage of the first account the Orphans’ Court had on the petition of the executors authorized Martha V. Eoley to invest $6,000.00 in mortgages upon real or leasehold property, or other securities, as she may prefer, “she being in virtue of the last will and testament of said testator the owner of the life estate in said sum of money, and entitled to apply the proceeds of the same to her own use and benefit, during her natural life,” and also the sum of $14,000.00 in any securities she may prefer — the order concluding in the language of the one just quoted. There can be no doubt that the testator only gave a life estate in the rest and residue of his estate to his widow.

The terms of the will are too plain to admit of any question as to that. It is likewise clear that the testator did not intend the executors to retain in their hands the estate so left his wife. He left the rest and residue of his estate to his wife “to be held and enjoyed by her together with the rents, income and profits thereof, for and during the term of her natural life and no longer, with power and full authority to her to invest and, reinvest the principal according to her preference for any specific security.” Then by the sixth clause he authorized and empowered his wife— not his executors — “to grant and assign any security she may hold or cash money, or both” to his daughters as above mentioned. That clause