MacNabb v. Sheridan

Sloan, J., delivered the opinion of the Court. This appeal is by a trustee appointed by decree of the Circuit Court for Harford County to sell real estate, from an order sustaining exceptions taken by the appellee, Helen Edith Sheridan, to an auditor’s report which had excluded her from participating in the distribution of the property of the real estate of Emma A. Reasin who died intestate April 4, 1941, leaving a sister and several nieces, one of whom, the appellee, claimed to be by adoption. It appears that Emma A. Reasin had had '& brother, R Coleman Sheridan, who had predeceased her, leaving an adopted daughter, the appellee, who now claims that she is entitled to take the share in the property sold by the appellant which the adoptive parent would take had the appellee been born to him in lawful wedlock. The chancellor held that she was so entitled.

The trustee then petitioned the court for permission to take an appeal to this court, and it was so ordered. No party in interest joins in the appeal. The appellee has moved to dismiss the appeal, because it is not authorized by Sec. 48, Art. 5, Code, 1939, even when authorized by. the Circuit Court. The section reads: “Any receiver, trustee, or other . fiduciary appointed by, or acting under the jurisdiction of any of the courts of equity in this State, shall have the right of an appeal to the Court of Appeals from any final decree hereafter entered or heretofore entered, provided the time for appeal- from such decree has not expired, by which any preference or priority between creditors or other persons interested in the estate, is determined.

Provided, however, that no such appeal shall be prose ²⁴⁷ cuted without the consent and approval of the court having jurisdiction over the estate.” The trustee had no interest in the estate; he was an officer of the court appointed to bring the property into the market, sell and distribute the proceeds in accordance with the auditor’s account, when ratified by the court. As said in Stewart v. Codd, 58 Md. 86 , “The appellant is simply the officer or hand of the Court, whose duty it is to hold the fund, and to pay and disburse it under the Court’s order.” To have the right either to except to an auditor’s account or to appeal he must have some interest in the fund or have the power under the instrument appointing him. Jackson v. West, 22 Md. 71, 83 ; Lurman v. Hubner, 75 Md. 268, 273, 274 , 23 A. 646 ; Stewart v. Codd, supra; Warehime v. Graf, 83 Md. 98, 100 , 34 A. 364 ; Brown v. Deford, 83 Md. 297, 310 , 34 A. 788 ; Surratt v. Knight, 162 Md. 14, 17 , 158 A. 1 ; Miller’s Eq. Proc, 430 et seq., 641.

Otherwise