Hagerstown Trust Co., Ex. of Mealey

Stockbridge, J., delivered the opinion of the Court. The will of Edward W. Mealey, a wealthy citizen of Washington County, was probated in the Orphans’ Court of that county on the 12th day of May, 1911. The seventh and eighth clauses were as follows: “7th. All the rest, residue and remainder of my estate, real, personal and mixed, and wheresoever situate, I give, devise and bequeath to the Hagerstown Trust Company of Hagerstown, Maryland, Trustee, to hold the same and collect the income therefrom,- and pay over the net amount thereof, to my wife, Adelaide Savage Mealey, in semi-annual instalments, and upon her death I direct that the wholq corpus or principal of the trust estate held under this clause of my will be passed over and delivered by my said Trustee as follows: Two-thirds thereof to the Washington County Hospital Association, a body corporate, duly incorporated under the laws of the State, of Maryland; and the remaining one-third thereof to the Washington County Eree Library, a body corporate, duly incorporated under the laws of the State of Maryland. 8th.

I hereby confer upon the Hagerstown Trust Company of Hagerstown, Maryland, Trustee, and its successors in the Trust, full power and authority to ²²⁷ invest and reinvest all sums of money which shall come into its hands under the provisions of this my Will, and confer upon it full power and authority to sell and dispose of, assign and convey any part of the whole of the trust funds in its hands, either for the purpose of changing the investments thereof, or for any other purpose which, in its judgment, may be necessary to facilitate the administration of the estate.” Adelaide Savage Mealey, the wife of the testator, was by the provisions quoted entitled to the met incosne of the estate of the testator during the team of her life. She died on the 8th day of March, 1912, of which the executor had knowledge, both through general repute and private telegTam. Four days after the death of Mrs. Mealey, the executor took into the Orphans’ Coui’t of Washington County what purported to be its first and final account as executor of Mr. Mealey, and that account was on the 12th day of March approved. On the 19th Api-il the Hagerstown Trust Company as executor filed a petition in the Orphans’ Coui't asking to have the account, which it had stated, and which had been approved by the Court on the 12th March, set aside, and on the 23rd day of April the Court passed its order reopening ■ and setting aside' the account of the executor passed on March 12th, 1912, and directing that the executor forthwith state said account under the direction and authoidty of the Court.

Three days later, on April 26th, 1912, a restated account was pi-esented by the executor to the Orphans’ Court, which account so presented was rejected by the Court on the 30th of April, 1912,, the order of such rejection being as follows: “It appearing from the petition of said Hagerstown Trust Company, Executor as aforesaid, filed Api’il 19th, 1912, that said Executor had received, since the death of Edward W. Mealey, ‘From Tygart’s River Lumber Company, $19,000.00,’ and from the ‘Glady Fork Lumber Company, $3,200.00,’ which sums wei’e ²²⁸ claimed by tbe life tenant under tbe will of said Edward W. Mealey, his widow, during ber life, as income to be paid ber according to tbe provisions of tbe seventh clause of said Edward W. Mealev’s will, and since ber death, will be claimed by ber legal representatives; and on tbe other hand, are claimed by the remaindermen (the Washington County Hospital Association’ and the Washington County Eree Library’) to constitute a part of tbe corpus of the estate, and that said Executor has knowledge of said counter claims, which have not been submitted to a Court of competent jurisdiction for adjudication. It is an error on the part of the said Executor to distribute said sums of $19,000.00 and $3,200.00 as part of tbe corpus of tbe estate of the decedent, and the said Executor should have retained said sums in its hands, a reasonable time, to await a determination of the dispute in relation thereto. It also appearing from the petition aforesaid of the said Executor that Mrs. Adelaide Savage Mealey, the widow of the decedent, Edward W. Mealey, died on March 8th, 1912, prior to the ‘Restatement of said first and final account,’ it was an error on the part of said Executor to distribute to the Hagerstown Trust Company of Hagerstown, Maryland, Trustee, the ‘Balance of tbe Estate,’ as shown in its account to be $363,686.21, after deducting $19,141.37 for Collateral Inheritance Tax, no such tax being imposed upon estates, real or personal, passing from any person to a body corporate, in trust, for the use of the wife of the grantor, said balance of $363,686.21 (being the balance after the deduction of the collateral inheritance tax) should have been (in accordance with the Statute of Uses, 27 Henry 8th, Chapter 10), distributed direct to tbe remaindermen, the Washington County Hospital Association and the Washington County Eree Library. It is therefore ordered, this 30th day of April, 1912, that the said account of tbe said Hagerstown Trust Company, Executor of Edward W. Mealey, deceased, ²²⁹ as restated, be and the same is hereby rejected, and the said Executor is hereby ordered to restate said account in accordance with the directions above given.” From this order of the Orphans’ Court the executor has taken an appeal to this Court.

Numerous questions arise under this appeal, which will be considered in order. These are stated in the brief of the appellant, as follows: 1st. Is the restated account of April 26th, 1912, right ? 2nd. The power of the Orphans’ Court to adjudicate trusts. 3rd.

Conceding the jurisdiction, is the opinion of the Court and its order of April 30th,.1912, right? It will be observed that the third question as phrased by the appellant is whether the opinion of the Court and its order of April 30th, 1912, is right. All this Court is concerned in is, whether the order is right. That may be entirely proper and yet the opinion of the Court an error; consequently the first and third questions as stated by the appellee may properly be considered together.

The first matter to be passed upon is the correctness of the account in distributing two sums of money, viz, $19,-000.00 received from the Tygart’s River Lumber Co. and $3,200 received from the Glady Eork Lumber Co. as part of the corpus of the estate of said deceased. All that appears from the record in this case -with regard to either of these sums are two items in the account which charge the executor with the receipt of these moneys, and the allegation of the second paragraph of the petition filed on the 19th April, which simply states that the executor has received these sums, but whether they were received as dividends upon the stock of the respective corporations,, or in liquidation by them in the process of voluntary dissolution, or the payment of accumulated dividends, or as payments on account of the reduction of the capital stock, nowhere appears, ²³⁰ and in such a condition it is impossible for this Court to say whether those sums of money, respectively, constitute a portion of the corpus or should have been treated as income of the estate of Mr. Mealey. The principles for the determination of this question have been frequently laid down by this Court; see the cases of Thomas v. Gregg, 78 Md. 556 ; Smith v. Hooper, 95 Md. 16 ; Robinson v. Bonaparte, 102 Md. 63 ; Atlantic Coast Line cases, 102 Md. 73 ; Ex Parte Humbird, 144 Md. 627 . Rut there are no facts before this Court by which it can say affirmatively whether that portion of the order of the Orphans’ Court appealed from was correct or incorrect.

In the absence of any facts upon which to base a conclusion, the presumption is that the ruling of the lower Court was correct, until the contrary appears.- There are certain matters in the account which are not entirely clear; thus, whether the item of $37.39, appearing as the amount of the collateral tax upon the appraised value of certain pictures, books and antiques was intended as a charge against the life-interest in them of the window, or against the remaindermen, it is impossible to tell. If it was the intention to make this, or any portion of it, a charge against the life-interest of Adelaide Savage Mealey, the widow of the testator, it is manifestly at variance with the Code (1912), Article 81, Section 120; while on the other hand, if it was intended only as indicating the amount of the tax to be paid by the remaindermen who had already become entitled to the property when the account was presented in the Orphans’ Court, the item was entirely proper. There also appears in the re-stated account the following item: “Erom which deduct this sum, income charged in this account, which under the 7th clause of the will of testator goes to testator’s widow and by this executor paid to trustee, $11,167.61.” No such corresponding item, or anything like it, appears in the original account, and the natural inference from the manner in which the item is expressed would be, that Mrs. Mealey was living at the time, and that the property was passed over to the trustee for her benefit, in accord ²³¹ anee with the terms of the will; but Mrs. Mealey had died on the 8th of March, and this re-stated account was not filed until the 26th day of April, a month and a half later. Apparently there was no payment made by the executor to the trustee for Mrs. Mealey’s benefit from the time of the death of her husband until the time of her own death, when the