Malkus v. Richardson

Urner, J., delivered the opinion of the Court. A petition filed by the appellant in the Orphans’ Court of Baltimore County, in March, 19.14-, alleged in effect that she was the widow of Philip Malkus, who died on July 18th, 1910, leaving a will by which he made certain specific bequests of chattels real and personal property, constituting ²²⁶ his whole personal estate, .to his son, Philip Malleus, Jr.,.and his daughter, Katherine Hettehen, -and that the- executors of the will stated an administration account by which the interests of the petitioner as widow were ignored.and the entire estate was distributed to other persons in .violation of. her rights. It was accordingly prayed that the account be reopened and that an order passed by the Court in aid of the distribution be rescinded. In pursuance of a citation duly issued answers to the petition were filed by Elizabeth Kamka, as executrix named in the will, and by John Holt Richardson,- administrator of the estate of Philip- Malkus, Jr., who had been appointed by the will as executor and-who had died after participating in the accounting and distribution now sought to be re-opened.

The answer of the executrix averred that tho estate of Philip Malkus had been fully administered and the account finally ratified; that by the will of the testator the sum of five dollars was bequeathed to- one Elizabeth Malkus, his wife, which sum the respondent has in hand but has been unable to pay “as she did not know nor does she know whether the said Elizabeth Malkus be now living or deadthat the respondent has no knowledge of any rights of the petitioner other than the bequest referred to, and that one of the executors being now deceased, and the account having been finally ratified by the Orphans’ Court, without any objection being filed, and more than two years having elapsed since its ratification, the Court was without jurisdiction or authority to re-open the administration. In the answer of Mr. Richardson, as administrator of the estate of the deceased executor, it was simply alleged' that the estate of Philip Malkus had been distributed in accordance with the terms of his will, and the account of the administration had been filed and finally ratified more than two years ago, and that the Court was without authority or jurisdiction to rescind the order of ratification. By agreement of counsel the matter was, heard by the Orphans’ Court upon the petition and answers, without testimony, and by an order passed at the conclusion of the hearing the petition was dismissed. ²²⁷ The record before ns includes transcripts of the will of Philip Malleus and of the administration account in controversy. After bequeathing separately to Katherine and Philip certain leasehold properties, and to the latter all the equipment and stock of material used by the testator in the business he was conducting on the premises described, and after-directing the daughter Katherine, out of the. bequest in her-favor,, to pay specified sums to other chiidpen.of the testatorj, the will proceeds as follows: . “I hereby direct my son Philip Malkus, out of the devise and bequest unto him, to pay unto my daughter Elizabeth Kandta the sum of One Hundred Dollars; and unto my sons Daniel Malkus and Charles Malkus,. and my daughters Annie Long and Mary Baneries, each the sum of Fifty Dollars; and I further charge-my said son Philip Malkus to pay unto my wife Elizabeth Malkus the sum of Five Dollars, and unto my son Henry Malkus the sum of Twenty Dollars.” The administration account charged the executors with the inventoried estate to the amount of $1,315.00.

It them gave credit for the usual costs and expenses of administration, the commissions, however, being waived, and for- the-distribution and payments mentioned in the will, except the amounts directed to he paid to the testator’s son Henry and to the widow. The exclusion of these items from the account was probably due to the fact that the will did not provide, as it did in the other instances, for'the payment of' the two excepted sums out of the estate bequeathed, but simply charged one of the legatees to pay the amounts indicated. By the terms of the will it was not made the duty of the executors to- pay the designated sum of five dollars to the surviving wife of the testator or to secure its payment out of any part of the estate. As this nominal provision for the widow was expressly committed' to - a legatee and was not made in the form of a direct bequest or of an appropriation out of any of the assets for distribution, there would ²²⁸ seem to. have been no occasion to include it in the administra■tion account.

But the purpose of the petition is to assert claims of a more substantial nature. It is contended that the petitioner is entitled to the special allowance of seventy-five dollars, or the equivalent in household and kitchen furniture, which the Code provides for widows by section 309 of Article 93, 'and also to one-third of the personal property of her deceased husband under sections 302 and 305 of the same Article, the former of which entitles a widow to the proportion just stated of the personalty, by virtue of her renunciation of the will, and the latter of which declares that “if in effect nothing shall pass by such devise, she shall not be thereby barred” (of her marital interests in the estate) “whether she shall or shall not renounce as aforesaid, it being-