Johnson v. Johnson

Singley, J., delivered the opinion of the Court. Wesley P. Johnson died domiciled in Baltimore on 2 June 1970, intestate, survived by his widow, Eugenia V. Johnson, whom the Register of Wills of Baltimore City qualified as personal representative of the estate by an order entered in administrative probate; by Charlene Johnson, a daughter by a prior marriage; and by Robert Cash, a natural son. A controversy arose between the children, Charlene and Robert, on the one hand, and the widow, Eugenia, on the other, over the manner in which Wesley’s gross estate of $11,159.59 was to be distributed. While we propose to dispose of the case, as did the court below, on procedural grounds, reference should be made to the principal cause of the children’s unhappiness.

The children had been recognized, with the widow, as being Wesley’s only heirs, each of whom was entitled to one-third of the net estate, by an order of the orphans’ court entered on 2 February 1971 after a meeting of interested persons, held at Eugenia’s instance under the provisions of Code (1957, 1969 Repl. Vol.) Art. 93, § 7-405. Prior to the meeting of interested persons, Charlene had received an advance of $175.00 on account of her anticipated inheritance. However, as it turned out, Charlene received nothing more from the estate and Robert, nothing at all.

The reason for this was that Eugenia received the family allowance of $1,000.00 provided for by Art. 93, § 3-201; claimed payment of $5,363.82, being one-half of the outstanding mortgage debt on the residence which she owned as a tenant by the entirety with Wesley, as permitted by Cunningham v. Cunningham, 158 Md. 372 , 148 A. 444 (1930) and 37 Op. Att’y Gen. 418 (1952); was allowed gross commissions of $1,115.96 under Art. 93, § 7-601 (b), which are not subject to appeal because they were within the limits allowed by law, Riddleberger v. ³²⁹ Goeller, 263 Md. 44 , 282 A. 2d 101 (1971), and her counsel was allowed a fee of $350.00, an allowance which was within the discretion of the court, Lusby v. Nethken, 262 Md. 584 , 278 A. 2d 552 (1971). After these payments, the remaining assets of the estate were $498.55 less than the amount required to pay funeral expenses, debts and miscellaneous expenses of administration, without taking into account the $175.00 paid to Charlene. In short, there was simply no net estate available for distribution.

Charlene and Robert had been notified of the proposed allowance of commissions and the counsel fee, but had not filed a request for hearing within the 20 day period permitted by Art. 93, § 7-502. Eugenia filed her administration account on 26 February 1971. Thereafter, the children made a timely filing of what they called a “Request for Hearing” in which they questioned the propriety of the payments and allowances which have been discussed, as well as three minor disbursements totalling $109.90. The matter came on for a hearing at which no testimony was taken, but arguments were heard.

On 22 March, the orphans’ court entered an order overruling the exceptions, and denying relief. No appeal was taken within the 30 day period allowed by Code (1957, 1968 Repl. Vol.) Art. 5, §§ 25-26. On 5 May 1971, the children filed what they called “Exceptions to First and Final Account” which raised precisely the same questions as those raised in the “Request for Hearing.” After another hearing at which no testimony was proffered, the orphans’ court dismissed the exceptions, on the ground, inter alia, that the 22 March order was res judicata.

From this order a timely appeal was taken to the Superior Court of Baltimore City. There, Eugenia’s motion to dismiss the appeal was granted, and Charlene and Robert brought this appeal. The thrust of their argument is that their “Request for Hearing” was filed under Art. 93, § 7-502, which at the time provided: 1 ³³⁰ “The personal representative shall give written notice to each creditor who has filed a claim under § 8-104 which is still open and to all interested persons of any claim,