Jones, Admr. v. Harbaugh

Boyd, J., delivered the opinion of the Court. - This appeal was taken from an order of the Orphans’ Court of Baltimore City revoking the letters of administration, which had been granted to the appellant, on the, estate of Charles Leonard. Harbaugh,-and appointing-the-appellee-new administrator in his place. On July 4th, 1900, Mr. Harbaugh was found dead in a house in Baltimore which he owned and the appellant, who was a coroner, was sent for. He had the body ²⁷¹ placed in a vault in St. Peter’s Cemetery, where the mother of the deceased was buried, and left the house in charge of the police authorities, as there was no one living there.

At the suggestion of one of the police officers, Dr. Jones, on the 6th of July, informed the Orphans’ Court that the property was under police protection and needed some disposition to be made of it. He applied for letters of administration which were granted to him that day and he gave bond in the penalty of three thousand dollars.' The day he qualified he heard that Mr. Harbaugh had, sometime before his death,'taken some money out of the house where he was found to Mrs. Hiskey’s where he boarded, and he called there, but was told there was nothing there but some old clothes, which would not be delivered until the brother of the deceased from the west arrived. Dr. Jones then requested a captain of police to send an officer for the money and on Saturday night he was informed that they had found eleven thousand dollars. Upon going to the police station he ascertained they had found money and bankbooks, but the captain told him he could not get the money until it was turned over to the police department.

On Monday, July 9th, he got the money and the bank-books and then consulted his counsel, Mr. Bryan, who advised him to file an inventory at once, which he did on July 1 ith. That contained personal chattels, &c., amounting to $76.00, two leasehold properties appraised at $1,200.00, $727 cash in the house at the time of deceased’s death and $10,660.97 in bank—in all $12,663.97. The Orphans’ Court ordered him to give an additional bond of $22,000, which was afterwards done. Dr. Jones had heard that the deceased had a brother living in Illinois and Mr. Bryan advised him that he must make every effortto locate him and as Mr. Bryan was goingto Chicago on other business it was arranged that he should try to do so.

He was to start Saturday afternoon, the 14th of July. That morning Mr. Winternitz, of the law firm of Quinn & Winternitz, called at his office and informed him that his firm represented the brother, who was then in the city. While Mr. Winternitz was there Dr. Jones came in to deliver a paper which he ²⁷² thought would aid Mr. Bryan in locating the brother. He was introduced to Mr. Winternitz.and was informed that he represented the appellee and that he was in the city.

Mr. Winternitz proposed that he or his partner be associated with Dr. Jones as co-administrator, but that was declined and Dr. Jones offered to retire from the estate. Mr. Winternitz replied that they did not want that and said they desired an early settlement of the estate. It was finally agreed that if the Court and the bonding company which was security for Dr. Jones consented, a settlement should be made and they also agreed that Dr. Jones should be permitted to retain $1,500—$1,000 for his own commissions and $500 for Mr. Bryan, his counsel. On July 16th, two checks were drawn to the order of Quinn & Winternitz, attorneys, one for $500.00 and the other for $8,700.00.

The one for $500.00 bears the date of July 10th, in the record, but the testimony shows conclusively that both were given on the 16th, and what appears to be the “ 10th ” was either intended for the “ 16th” or was unintentionally written the “ 10th ” by Mr. Bryan, who wrote the checks. On the 17th of July, the appellee executed a release, which was regularly acknowledged before a Notary Public, and' on the 18th the appellant stated an account in the Orphans’ Court, which after deducting expenses, collateral inheritance tax and U. S. Internal Revenue Tax, distributed to the appellee $10,181.76. The commissions allowed the administrator in the account were $633.19, which were to be deducted from the one thousand dollars agreed upon, and he was also to pay Mr. Bryan out of the balance in hand. That still left $114.95 ¡n the administrator’s hands, but his testimony shows that the two checks amounting to $9,200.00 were given before the account was stated and he was to settle for any balance that was not included in those checks, as this was not a final account, the leasehold property and personal effects still being undisposed of.

Messrs. Quinn & Winternitz only paid the appellee $4,050 out of the amount received by them—they claiming that under a contract they had with him they were entitled to be allowed for certain expenses and fifty per cent of the bal ²⁷³ anee. The appellee received that amount and went to his home in Illinois. After getting there he received a clipping taken from a Baltimore newspaper referring to the transaction, and, after taking advice, filed a petition on the 20th day of August, 1900, in which he charged Messrs.

Quinn & Winternitz and others with a conspiracy to defraud him and alleged that the appellant “ entered into and aided the above mentioned parties in the perpetration of the fraud.” The petition prayed that the account of the administrator be reopened and set aside, that he be removed and a new administrator appointed ; that the commissions of Dr. Jones be disallowed and for general relief. As the record shows that proceedings have been instituted against Messrs. Quinn and Winternitz and others, we do not intend, in what we say, in any manner to pass upon the questions therein involved, or determine whether they were guilty of the fraud charged against them, but will, as far as possible, confine ourselves to the action of the Court below in removing the appellant and appointing the appellee in his place—that being the subject before us. 1. The majority of the Judges of the Orphans’ Court, as shown by their opinion, reached the conclusion that the letters; were improvidently granted and therefore should be revoked for that reason and because the petitioner “has been fraudulently deprived of a large sum of money by administrator Jones.” We will consider the reasons for removal in that: order.

Some confusion has arisen in this State as to when the: Orphans’ Court can grant letters of administration—especially to one not entitled to them by reason of his relationship with) the deceased. Section 14 of Art. 93 of the Code provides; that “Whenever any person shall die intestate, leaving in this; State personal estate, letters of administration may forthwith be granted,” etc., while by section 16 it is provided that “It shall be incumbent on the person applying for administration to prove such dying intestate to the satisfaction of the Court, unless the same be notorious” and then, after authorizing the Court to examine into the facts, concludes by saying “No such ²⁷⁴ administration shall be granted until at least twenty days after the death of the supposed intestate, and at least seven days after application therefor.” It was decided by this Court at the January term, 1901, in Williams v. Addison, ante, p. 41, that the latter clause did not apply when the fact of the deceased dying intestate was notorious, or was proven to the satisfaction of the Orphans’ Court, as otherwise section 16 would be in conflict with section 14, which authorizes the Court to forthwith grant the letters. If then the dying intestate was notorious, or was proven to the satisfaction of the Court, it had the power to grant letters within the twenty days, and the mere fact that they were granted within that time did not make them invalid, as the presumption would be that such dying intestate was notorious, or was proven as required. There is no evidence in this case that it was not one or the other.

In the case of Williams v. Addison, letters were granted to one not related to the decedent within five days from his death, an only surviving sister having renounced the right to administer, and no other person being entitled to notice before letters were granted, and they were held to be valid. Section 31 of that Article is, “If there shall be neither husband, nor wife, nor child, nor grandchild, nor father, nor brother, nor sister, nor mother, or if these be incapable, or decline, or refuse to appear on proper summons or notice, or if other relations and creditors shall neglect to apply, administration may be granted at the discretion of the Court." And by section 33 it is provided “It shall not be necessary to give notice to a party entitled to administration if he be out of the State, nor shall it be necessary to summon or notify collateral relations more remote than brothers and sisters of the intestate, in order to exclude them from the administration; and no relations, except a widow, child, grandchild, father, brother, sister or mother shall be considered as entitled unless they shall apply for the same.” It is conceded that the appellee is the only brother and the nearest relation to the deceased. He had no other relations who were entitled to letters unless they applied for them, and no creditors applied. The ap ²⁷⁵ pellee was not entitled to notice as he was out of the State and therefore if letters had been granted, before he applied to the person next entitled, he could not have had them revoked.

Ehlen v. Ehlen, 64 Md. 360 . There being no one who was entitled to letters unless he applied, “administration may be granted at the discretion of the Court.” Art. 93, sec. 31. So in the absence of fraud or mistake, the appellee could not have had the letters revoked, if he had applied on the ground that he was first entitled. But he did not even apply but filed a petition in the Orphans’ Court on July 16th, in which he stated that he was “so circumstanced as to be unable to give personal supervision to the settlement of the estate of his deceased brother, and is willing to acquiesce in the appointment of the said Caspar F. Jones, and to ask that his letters of administration be not revoked until the estate of his deceased brother is closed.” That petition was not only signed by him but was sworn to by him.

It is true that he now alleges that he was imposed upon by his attorneys in this respect, as well as others which we shall have occasion to refer to, but if that be admitted (although we express no opinion on that subject for reasons we have stated) there is nothing in the record which authorizes the charge that Dr. Jones in any way took part in that. There can be no question about the fact, even from his own testimony, that the appellee fully understood that he was not only relinquishing any right he had to administer, but was recommending the continuance of Dr. Jones. He not only did that by his own petition, but on July 17th, he united with Dr. Jones in an answer to the petition of H. A. Helmling, who had applied to be appointed, in which he expressed the desire that Dr. Jones be continued and said his appointment met with his approval. Having so acted, he is not now in a position to withdraw his declination and ask that the party, whom he thus endorsed, be removed on the ground that he was not entitled to the office even if he was otherwise entitled to administration.

It is too late for him now to withdraw it as his declaration was final and irrevocable. Carpenter v. Jones, 44 Md. 625 ; Stocksdale v. Conaway, 14 Md. 99 ; Lutz ²⁷⁶ v. Mahan, 80 Md. 232 . In those cases the declarations were filed before the letters were granted, but the principle is the same. There is no evidence that Dr. Jones was guilty of fraud or a misrepresentation of the facts when he obtained the letters.

There was then no one in the State entitled to notice and no one had applied for letters. Nor was there any fraud on his part which induced the appellee to file the petition and answer above referred to, although they are not necessary to sustain the appellant’s original right to the letters which had been granted to him by the Orphans’ Court under the discretion vested in it by the statute, in the absence of some relation or creditor applying. He cannot, therefore, be removed on the ground that letters were improperly granted to him. 2. In what we have said, however, we do not refer to the right of the appellee to now administer, if the appellant has since been guilty of any act that authorized the Orphans’ Court to remove him, and we will next consider that branch of the case.

In doingi so it is important that we bear in mind the relations of the various parties to each other. There is nothing in the record to justify the conclusion that Dr. Jones was in any wise connected with, or responsible for the conduct of Messrs. Quinn and Winternitz, by which the appellee claims he has been defrauded. He certainly had nothing to do with them before the appellee came to Baltimore.

He did not even know the attorneys until after their employment by the appellee and after he reached Baltimore, and there was nothing to cause him to suspect that they were attempting to take any advantage of the appellee, who had not only given them a power of attorney which gave them full authority to act for him, but he took part personally in the transactions. He signed and swore to the petition and swore to the answer above referred to, executed a release in which it was stated that the sum of $11,387.97, “less Court cost and expense, including funeral expenses, etc.,” was distributed in the account—that being the amount of the inventory less the personal effects and leasehold property—he was at Mr. Bryan’s office on Saturday and on Monday he was at the office of ²⁷⁷ Messrs. Quinn & Winternitz, when Dr. Jones handed Mr. Winternitz’ the checks. There is not a particle of evidence from which it can be fairly inferred that Dr. Jones had any knowledge of the alleged agreement between Harbaugh and his attorneys, and the settlement made by them with him was after Dr. Jones left that office.

After that was done he made no complaint to Dr. Jones, but accepted the money his attorneys gave him, and it was not until after he had gone home and was there persuaded by his friends that he had been defrauded, that he made any complaint against Dr. Jones, which he did for .the first time by the petition filed in this proceeding. It may be, and doubtless is, true that the appellee is not a man of much business experience, but he could read and write, was fifty-four years of age, had a son with him, and was represented by two attorneys of the Baltimore bar whose integrity Dr. Jones had not, as far as the record discloses, the slightest reason to question at that time. If an administrator is to be held responsible under such circumstances for alleged unfair dealings between a distributee and his attorneys, it would seem to be impossible for one to relieve himself of liability. They were Mr. Harbaugh’s attorneys—not Dr. Jones’.

His employment of them of itself was in law an assurance to any one dealing with them that he could properly do so, within the scope of their employment, but it is not necessary .to rest our decision on the presumption of law arising from the relations between the appellee and his attorneys, for he acted himself in these matters. The only conduct of Dr. Jones, reflecting upon this appeal, that can be at all questioned was his demand for