Hardt v. Birely

Fowler, J., delivered the opinion of the Court. When this case was heard, it was supposed the appeal would have to be dismissed, because the record had not been transmitted to this Court within the time prescribed, but since the hearing a certificate has been filed by the Register of Wills, by which it appears the delay was caused. by his inability to complete the record sooner, and was not caused by the appellant. The motion to dismiss the appeal must, therefore, be overruled. The facts of the case may be stated as follows: William F. Johnson, of Frederick County, died in 1886, and by his will, duly executed to pass real and personal property, he appointed the appellee executor, and devised and bequeathed to him in trust for the benefit of testator’s wife during her life, and then to his daughter, the residue of his estate after paying debts and funeral expenses.

The testator directed his executor, while holding the estate in trust, to keep all moneys safely and profitably invested. The will was duly proved, and after having stated his first and final account in the Orphans’ Court, charging himself with certain mortgage and other notes and debts due to the testator, and distributing the same to himself as trustee in accordance with the provisions of the will, the appellee, on the 12th of October, 1886, filed his petition in the Circuit ¹³⁶ Court for Frederick County, sitting as a Court of equity, asking said Court to take jurisdiction of tlie administration of the trusts under said will, which was accordingly done. During the same month the appellee resigned said trust, and thereupon the appellant was appointed to succeed him. In Jrine, 1889, the .appellant, as trustee, filed his petition in the Orphans’ Court of Frederick County, asking that Court to strike out the allowance of eight per cent, commissions on certain stocks, bonds, notes and debts, amounting to $15,985 which constituted a part of the estate of said testator.

The appellee, Birely, answered this petition, and admitted that he had received eight per cent, commissions upon the notes as alleged, but denied that said commissions so allowed him were illegal, and without the warrant of law. The appellant has, however, abandoned a part of the claim set up in his petition, and now claims that the amount on which commissions were improperly allowed is $1,515, and that the amount of commissions erroneously allowed is $606. Of this sum, it appears to be conceded that the appellee voluntarily relinquished the sum of $300, and charged himself, as trustee, with the same. The actual amount in dispute therefore is $306.

The Court helow dismissed the petition filed by the appellant, Hardt, and from this action he has appealed. The appellee contends here, as he did below, in the first place, that the Orphans’ Court had no jurisdiction to entertain this petition, and for this position he relies upon Binnerman vs. Weaver, et al., 8 Md., 517 , in which case it was held by this Court that, where an administrator fully settles his accounts in the Orphans’ Court, the jurisdiction of that Court ceases, and a Court of equity alone can enforce the trust created by the will. There can be no doubt as to this doctrine; but the case referred ¹³⁷ to does not appear to have any application to the question under consideration, which relates solely to the jurisdiction of the Orphans’ Court over the subject of executors’ commissions, and which has, no reference whatever to any óf the trusts created by the will. We think it is clear that the Orphans’ Court, had jurisdiction to entertain the case made by the petition; for as was said in Stratton’s Case, 46 Md., 551 , “it would be absurd to allow a Court jurisdiction herein, and at the same time deprive it of the liberty of vacating and setting aside an act of their own whether obtained by fraud or imposition or honest mistake.” In the second place, assuming that the Orphans’ Court had jurisdiction, was the petition filed, or application made in time to correct the alleged mistake?

The theory of the appellee seems to be that when the executor had closed the estate, by stating and passing his final account in the Orphans’ Court, it was too late, successfully to object to that account, or to ask that Court to correct it, however unjust, and erroneous it may have been. But, clearly, this cannot be a correct view. The parties interested in the estate must have a reasonable time within which to appear in the Orphans’ Court and make their objections, and, if they cannot object after the final account has been passed they cannot object at all, for it is by that account that the commissions objected to in this case were allowed the appellee by the Orphans’ Court. It is