Marx v. Ensor

■ BioND, O/J., delivered the opinion of the 'Court. •' This" is1 the third appeal on this particular' controversy. The decisions on the two previous appeals' are reported in 142 Md. 342 , and 145 Md. 311 . The first appeal was from rulings of the Circuit Court for Anne Arundel County on the trial of an issue which had originated in the Orphans’ Court of Baltimore County on a complaint that Charles Marx, as executor of the estate of John Marx, Senior, deceased, was concealing and failing to account for additional assets of the' estate, and a petition that he be required to 1 account for them then. The verdict of the jury was against the executor.

He contended on the trial that the question of right to the a.ssets in controversy had been previously determined in his favor, and the administration finally closed afterwards by the passing of his final account. The appeal from the decision against him, thaife is, the first appeal, was dismissed because1 of delay in transmission of the record. The second appeal was from orders passed by the orphans’ court in pursuance of the decision on the issue sent to the Circuit Court. On August 29th, 1923, an order was passed declaring that the assets were wrongfully withheld by the executor, as the jury, had found, and on September 11, 1923, an order nisi was passed directing the necessary accounting by the executor and providing for his removal if he should fail to make it.

Marx filed an answer repeating his contention that the question of additional, concealed assets had been determined in his favor at an earlier time during the course of his administration; and in due course, on September 27th, 19'23, the orphans’ court passed an order which ⁶⁰⁵ made final in all respects the order nisi of September 11th, 1923, removed Marx as executor, and appointed in bis place Lawrence E. Ensor. On October 18th, 1923, Marx filed a petition for a rescission of the orders of August 29th, 1923, September 11th, 1923, and September 21111, 1923, and that petition was refused on the same day. These several orders were the subjects of the second appeal; and it was decided by this Court then, that the orphans’ court, notwithstanding the final accounting’ by the executor, still had jurisdiction to. require an accounting of additional assets, if there were any, and to send to the circuit court for trial an issue on the existence of additional assets in the hands of the executor; and further, that if at the time of an application for such an issue there was in force an order determining that the particular fund in controversy belonged to the executor, he should have availed himself of that fact by resisting the sending of the issue and appealing from the order allowing it if his resistance was unsuccessful — which the appellant failed to do— and that he could not avail himself of it after tl^e issue had been .allowed to go to the circuit court- for trial. After the decision on this second appeal, which was announced on February 29th, 1924, the orphans’ court, on the petition of Lawrence E. Ensor, the administrator, on March 18th, 1924, ordered Marx to deliver over all property of the decedent still in his hands, with books and papers, to his successor, and authorized the administrator to employ counsel and bring suit on the executor’s bond if he failed to comply with the order.

But it happened that a motion for reargument on the appeal had delayed the mandate, so that it had not been received by the orphans’ court o-n the d'ay that the order was passed. It was not received until April 14th, 1924. Marx, by his attorneys, filed a protest denying jurisdiction of the court to pass the order of March 18th. On April 15th, however, after the mandate had been received, a hearing was had on the petition of the administrator, Marx and his attorneys being present, and Marx was sworn and questioned about the additional assets.

Under the instrue- ⁶⁰⁶ tions of bis Counsel be