Gavin v. Carling

Alvey J., delivered the opinion of the Court. That Mrs. McNulty, as administratrix of her former husband, John Gavin, deceased, had no right or power to appropriate the personal estate of the decedent to her own use, at the appraised value thereof, and thus make the property her own, to indemnify herself for money advanced to pay the debts and expenses of the estate, is entirely clear, upon what has been decided by this Court upon more than one occasion. Hall vs. Griffith, 2 H. & J., 483 ; Haslett’s Adm’r vs. Glenn, 7 H. & J., 17 . Nor had the Orphans’ Court the power to authorize such appropriation.

Hence the account settled in the Orphans’ Court by the administratrix, on the 16th of July, 1869, was clearly erroneous, at least in so far as it allowed her to retain the leasehold property on Lexington street, ⁵³⁶ Baltimore, in satisfaction of her advances to the estate of $339.57, according to that account, and of her distributive share, as there allowed, of $90, aggregating $430. The appraised value of the leasehold property was $400. The account being thus erroneous upon its face, and subject to impeachment by those interested in the proper settlement of the estate, it was perfectly competent to the Orphans’ Court, upon application, to re-open the account, and to direct a re-statement thereof, in order to correct the errors disclosed; as was done by the order of that Court of the 28th of June, 1877. Scott vs. Fox, 14 Md., 388 ; In the Matter of Stratton’s Estate, 46 Md., 551 .

And as there is nothing appearing in the record to raise a doubt as to the correctness of the account as re-stated, and approved by the order of the 17th of August, 1878, we must take that account, as thus re-stated and approved, as being in all respects proper and correct. The account speaks and shows the condition of the estate as of the 16th of July, 1869. And instead of being a final account, closing the administration of the estate, according to the profession and showing of the original account as stated and passed, it now appears that the estate is still open, and that the leasehold property remains unadminstered. Mrs. McNulty died in the latter part of the year 1876, and before any further or final account was settled; and consequently, an administration de bonis non became necessary; and such letters have been granted, and the unadministered property has devolved upon the administrator de bonis non, who is the defendant in this cause.

Under sec. 12 of Art. 93 of the Code, the surviving husband of the deceased administratrix is required to state an account; hut that account is only required to show “the amount of money and property received, and of payments and disbursements, made by such administratrix, or that may have been received or paid by him, (the husband) and not before accounted for with the Court.” He is not authorized to ⁵³⁷ take charge of and administer property left unadministered by the deceased administratrix. There can be no question therefore but that the leasehold property in question, and which forms a part of the personal estate of John Gavin, deceased, has legally and rightfully devolved on the defendant, as administrator de bonis non; and we think it equally free from doubt that he has a right, and that it is his duty, to proceed to sell such property, and account for the proceeds. There would, however, appear to be some considerable t hardship in the case; the property having been improved at considerable cost, and the parties having acted on the settlement of the estate as made by the sanction of the Orphans’ Court, allowing the leasehold property to be taken by the widow of the deceased at a valuation, by making an assignment of it by way of mortgage to a third party for valuable consideration. But the parties must, in strictness, be chargeable with knowledge of the defects in the proceedings in the Orphans’ Court, and be held to have dealt with respect to the subject-matter in subordination to the rights of those interested in the legal and proper settlement of the estate.

We are of opinion, however, that there is an equity in respect to the proceeds of sale, to which the complainant is entitled. He, of course, is entitled, by virtue of his mortgage, to whatever interest or right McNulty and his wife, the mortgagors, had in the premises at the date of the mortgage. The proof shows that at the death of Gavin, the leasehold lot was but poorly improved. It had a small house upon it, consisting of two small rooms, one over the other, and a small shed back-building, of one room, used for a kitchen.

As we have already stated, this lot with the improvements upon it, was only valued at $400. And this was nearly all the property he left, and it was the only home of his family, consisting of his wife and four minor children — two boys and two girls. After the ⁵³⁸ widow married McNulty, in 1864, there was not room in the house for the decent and comfortable accommodation of the