Garrett v. Kerney

Boyd, C. J., delivered the opinion of the Court. James A. Kerney died in Baltimore in October, 1895, and Emilius A. Sullivan qualified as his administrator in the Orphans’ Court of that city. On the 8th of May, 1896, the administrator filed.a petition in that Court, alleging that he had filed an inventory of the estate of the decedent of $9,034.70; that Kerney left surviving him as possible claimants and distributees of said estate a widow, “two alleged children,” a sister residing in the city of Mullingar, Ireland, and another sister residing in Australia; that questions had arisen among the parties in interest respecting the relationship, if any, which the “two alleged children” bore to the decedent, and that conflicting claims were made in respect to the distribution of the estate. It then alleged that he could not “with safety to himself, nor to the interests of those entitled therto, distribute the said estate of the said decedent without the aid of this Honorable Court,” and prayed the Court to pass an order in pursuanee of, and in conformity to, Article 93, sec. 143 (now sec. 142), of the Code — suggesting the 10th of July, 1896, as the date of the meeting.

The petition was duly sworn to by the administrator, and upon it the Court passed an order, the day it was filed, “that the 10th day of July, 1896, be named and appointed for a meeting in this Court of persons entitled ⁵⁰³ to distribution, shares or legacies, or a residue of said decedent’s estate, in pursuance of the provisions of chapter 255 of the laws of Maryland of 1896,” which was the Act above referred to. It further notified and warned all such persons to be and appear in person, or by guardian, solicitor or agent, in that Court on the day named, “to the end that payment and distribution may be then and there made under the Court’s direction and control,” and directed publication in one of the daily newspapers published in Baltimore, once a week for four successive weeks before the 10th of July, 1896. A copy of the order was published in the Daily Record, as required. Sec. 142 of Art. 93, provides, that' “Any administrator or executor shall be entitled to appoint a meeting of persons entitled to distributive shares,” etc., on some day to be named and appointed by the Orphans’ Court, on petition, and “distribution or payment may be then and there made under the Court’s direction and control, subject, however, to such adjournments from time to time as the Court shall deem proper to order.” It then provides for summons being served on residents of the State, and for publication against non-residents and against those whose places of residence are unknown, or when the parties" in interest are unknown, or when it is not known whether the person in interest be actually living or dead.

The section concludes, “and distribution and payment as aforesaid made under the direction and control of the Court shall protect and indemnify the administrator or executor acting in obedience to it.” We do not understand that any question has been made as to the petition, order of Court or publication, which seem to have been in compliance with the statute, using substantially its language. An administration account was settled in the Orphans’ Court on August 31 st, 1896, and on thesameday an agreement was executed between Thomas C. Weeks, attorneyin fact of Margaret Kerney, widow, who resided in Chicago, of Kate Dargan, a sister, residing in Ireland, and of John and Elizabeth Hafford, nephew and niece, residing in Ireland, William J. Garrett, attorney in fact of Michael Kerney and Katie Kerney, ⁵⁰⁴ residents of Chicago, and described as children of the decedent, and William C. Shelley, attorney in fact of Margaret Sheehan, a sister, residing in Australia, parties of the first part, and Emilius A.' Sullivan, administrator, party of the second part, by which it was agreed that, after payment of costs, expenses, &c., the residue should be distributed as therein set out. The distribution agreed upon was one-third to the widow and the rest to be divided into five parts, one of which was to be paid to Kate Dargan, sister, one to John and Elizabeth Hafford, nephew and niece, one each to Michael and Katie, children, and the other to Margaret Sheehan, sister of the deceased. It is contended by the appellees, and was so decided by a majority of the lower Court, that the distribution was in fact made by the administrator, under the agreement, and not under the direction and control of the Court, as provided by the statute above mentioned.

Several, questions were raised by the appellants, but in our opinion the one just mentioned is the important and controlling one. On March 12th, 1903, a petition was filed by Annie Burke Kerney and Elizabeth Lynch, both of Ireland, in which they alleged that the former is the widow and the latter the only child of the deceased; that in November, 1871, James A. Kerney deserted them and came to America; that atfer he left them, the wife made various but unsuccessful efforts to discover his whereabouts, but was never able to learn anything about him until very recently, when she was told that her husband had died in Baltimore, in October, 1895. Mr. Sullivan died shortly after he settled the account on August 31st, 1896, and William J. Garrett was appointed administrator de bonis non, and settled an account on October 31st, 1896, which included a small amount of money left undistributed by Mr. Sullivan, and a leasehold property which we understand to be the same which had been distributed, but not conveyed, by Mr. Sullivan before his death. The petition prayed that the orders of ratification of the accounts be stricken out, and that the administrators be required to account to the petitioners for the estate coming into their hands. ⁵⁰⁵ Mr. Garrett answered the petition, setting up several defenses, among them that the settlement was made under the direction and control of the Court.

Certain testimony was taken in Ireland, exceptions to which were filed, but, as intimated above, we do not deem it necessary to pass on them. The majority of the Court passed an order that the two administration accounts be disallowed in respect to the distribution and that the distribution be set aside; that William J. Garrett, administrator, d. b. n., distribute the personal property which came into his hands as therein directed; and that he forthwith take proceedings to recover from the personal representatives of said Emilius A. Sullivan, the former administrator, or from the surety or sureties upon his bond, the value of the estate improperly distributed by him. From that order this appeal was taken. The record presents a peculiar condition of affairs.

Treating the testimony objected to as properly before us, there would seem to be no doubt that Mrs. Annie Kerney was the wife, and Mrs. Lynch the daughter of James A. Kerney, and there is no evidence to show that Mr. and Mrs. Kerney were divorced — the latter testified that no such proceedings were ever instituted by her husband or herself. Michael and Katie Kerney were children of James A. Kerney, by a woman named O’Neill, as the record speaks of her, who afterwards died. James A. Kerney and Margaret Kerney lived together in Chicago and Michael and Katie lived with them under the name of O’Neill — supposed by Margaret to be nephew and niece of James. Whether or not James and Margaret, or James and the O’Neill woman ever went through a marriage ceremony does not appear, but we will assume that Annie Kerney was the lawful wife, and is the widow of James, and that hence he was not lawfully married to either of the other two.

James A. Kerney was a traveling auditor of the B. & O. R. R. Co.; and Mr. Sullivan was in the auditing department of that company, “and was a close personal friend and confident of Mr. Kerney, the deceased,” as stated in the testimony of Mr. Garrett, who was counsel for Mr. Sullivan in ⁵⁰⁶ the settlement of the estate and succeeded him as administrator. When James A. Kerney died, the supposed widow, Margaret, and’the two alleged children, Michael and Katie, came to Baltimore to the funeral, from Chicago. Michael and Katie then stated that they were not nephew and niece but were children of James. The latter had lived in Baltimore with the O’Neill woman, and Michael and Katie were their children — going by the name of Michael and Katie Kerney, but, as we have said, when they went to Chicago to live with Margaret, they went by the name of O’Neill and were supposed to be nephew and niece.

The record is not very explicit, but we understand from it that James and Margaret never lived together in Baltimore, but did in Chicago— although apparently Baltimore was regarded as his place of residence at the time of his death. There is nothing in the record to suggest that Mr. Sullivan or any one in this country knew that Kerney had left a wife and child in Ireland, and, although the petition alleges that the distribution made in the Orphans’ Court was the result of a deliberate conspiracy between Mrs! Dargan, Margaret, Michael and Kate Kerney. Mrs. Dargan, whose testimony was taken by the appellees, testified that she did not know until 1901 that Mrs. Annie Kerney was alive in Ireland and had not been in America with the deceased.

But when she ascertained the facts she, on the advice of her spiritual adviser, arranged to meet Mrs. Annie Kerney in Dublin, informed her of the death of James, and of the distribution, and gave her one hundred pounds of the money she had received and sixty pounds that her niece, Elizabeth Hafford, had received. The important question therefore is whether the distribution was made under the statute, now sec. 142 of Art. 93 of the Code, or was simply a distribution by the administrator under the agreement. As we have seen there can be no doubt that regular proceedings were begun in order to have the distribution made under the statute. None of the Judges who heard the case below were on the bench of the Orphans’ Court when the ⁵⁰⁷ accounts were stated.

Judge Block, who dissented, was at the time the accounts were stated the auditor of the Orphans’ Court, and they are in his handwriting, but his testimony was not taken. The agreement above spoken of between the several attorneys in fact and the administrator, was headed: “In re estate of James A. Kerney, late of Baltimore City, deceased. In the Orphans’ Court of Baltimore City.” After describing the parties, it proceeds “Whereas, After due publication made under the order of this Honorable Court it appears that the parties hereinbefore named and duly represented in this proceeding by their respective attorneys, as aforesaid, are all the personal representatives entitled to participate in the distribution of the estate of the said James A. Kerney, deceased, and for the purpose of avoiding litigation and saving expense in determining their' respective rights and interest in said estate the parties hereto have agreed to execute these presents.” It concludes by saying, “And the party of the second part” (the administrator) “hereby agrees to distribute the said estate of James A. Kerney, deceased, in conformity to the terms of this agreement, subject to the approval of the Orphans’ Court of Baltimore City.” On the 27th of August, 1896, the administrator filed a petition in the Court, asking it to allow a fee to the attorney, Mr. Garrett, whom he had employed, and in it states that “as a result of his services, parties, who would otherwise have remained in ignorance of the existence of this estate and of the publication made for non resident distributees; or would have been too far removed from the jurisdiction of this Honorable Court to have made an effective assertion of their rights in the premises, have been brought into this Court, and their rights have thereby been-preserved.” That petition states that by his efforts, the attorney “has prevented a long and expensive litigation, which was threatened respecting the rights of certain children of the decedent to participate in the distribution of said estate, * * * and has effected a final agreement between all parties in interest whereby all of said parties are pecuniarily ben ⁵⁰⁸ efited.” The Court passed an order allowing a fee of $>300, and the administrator was credited with it in the account. It is difficult to imagine that an, administrator, who had taken such care to protect himself, and to ascertain who were entitled to distribution, on the several theories then presented to him, would have deliberately and intentionally ignored the statute, the protection of which he had sought, especially as he was acting under advice of counsel.

The agreement which is relied on by the appellees to show that the distribution was not made under the direction and control of the Court shows that all the parties, who, as far as was then known, could obtain any of the estate, considered themselves in Court and did actually appear in Court, through their attorneys, which is expressly authorized by the statute. Indeed the agreement discloses that all of them supposed they were acting in pursuance of the order of the Court, and the administrator gave his consent to the distribution as agreed upon by the parties “subject to the approval of the Orphans' Court of Baltimore City." The account shows that the distribution was “made under and by virtue of agreement made by all in interest, and as per