McClusky v. Kalben

⁴⁸¹ Pattison, J., delivered the opinion of the Court. On the 28th day of February, 1929, C. Harry King executed his last will and testament, and died on December 24th, 1932, leaving surviving him his widow, Anna M. King, and a married daughter, Millicent King McClusky. He devised, or bequeathed, $1,000, absolutely, to one Wanna Wilson. The residue of his estate he devised to the Mercantile Trust Company and Harry C. Kalben, in trust for the benefit of his widow, Anna M. King, for and during her natural life, and upon her death to his daughter Millicent King McClusky, the appellant in the first of the two appeals, Nos. 10 and 11, of this term, now under consideration.

Harry C. Kalben, the draftsman of the will, was made executor, and as such is the appellee in both of these appeals. At the time of the death of C. Harry King, and for several years prior thereto, he had been living apart from his wife, Anna M. King, with Wanna Wilson. A part of the time he lived in Baltimore City, and at other times in a house upon the Severn River. Mrs. King had, some years before, filed a bill for divorce, and C. Harry King a cross-bill thereto, which were pending in the Circuit Court of Baltimore City at the time of his death.

On November 7th, 1932, a marriage ceremony was performed in Towson, Md., between C. Harry King and Wanna Wilson, who was also known by witnesses, who testified in the case, as Mrs. Weston, Mrs. Wainright, Mrs. Wilson, and Mrs. King; and, as stated by Harry C. Kalben, she was known by her Christian name as Ruby, Gertrude, and Wanna. On December 28th of the same year, letters testamentary were granted to Harry C. Kalben, who proceeded with the administration of the estate. After the death of C. Harry King, his widow, Anna M. King, on June 1st, 1933, filed a petition, in the pending divorce proceeding, in the Circuit Court of Baltimore City, asking for the payment to her from the estate of $2,385, owing to her as unpaid alimony. The court sustained her claim, but on appeal to this court, in Kalben v. ⁴⁸² King, 166 Md. 632 , 172 A. 80 , the rulings of the trial court were reversed by an opinion handed down on April 12th, 1934.

On January 21st, 1933, Harry C. Kalben, the executor, filed a petition alleging the death of C. Harry King and the issuance to him of letters testamentary upon the estate. He further alleged that the value of the estate was about $9,000, consisting chiefly of the proceeds from life insurance policies, and that a suit had been filed against him, as executor, “in the Superior Court of Baltimore City, by one Ruby G. King, otherwise Ruby G. Wilson, to recover $2,000 for money loaned to, and services performed for, the said C. Harry King, deceased; and another suit, by titling, brought against him as executor, in the Court of Common Pleas of Baltimore City, by the same plaintiff, claiming $20,000 damages, based, as stated by counsel, upon the alleged fact that the late C. Harry King had married the said' Ruby G. Wilson, when he, at the time, had a wife living, from whom he had not obtained a divorce. The petition further alleged that it was necessary for him (the executor) to be “represented by counsel in these suits * * * in order to properly defend the same,” and that he had “retained the services of James Fluegel, Esquire, of the Baltimore Bar to so represent him,” and had agreed to pay him “subject to the approval of this * * * Court, the sum of five hundred dollars, as retaining fee in both of these actions,” and prayed that the court pass an order authorizing and directing him to pay to James Fluegel the sum of $500 “as a retaining fee in said suits at law.” Upon this petition the Orphans’ Court on the date last named, the date of the filing of the petition, passed its order, as prayed. On the 9th day of June, the executor, through his counsel, James Fluegel, filed with the court three petitions.

In the first of these, he alleged that he had learned that the late C. Harry King, “who had been his client for a number of years, had married * * * one Ruby G. King, without having obtained a divorce from his wife who was in California, and against whom he had a bill of complaint ⁴⁸³ pending in the Circuit Court of Baltimore City, asking for a divorce,” that Ruby G. King brought suit against the executor, wherein she asked for damages to the extent of $20,000, because of injury to her resulting from her marriage to C. Harry King, caused by his misrepresentations that he had been divorced from his former wife, and was then single, when in fact he had not been divorced and was not single, and it was not until after the death of C. Harry King, who committed suicide on the 24th day of December, 1932, that she learned that she was not his legal widow and was a victim of his deceit. The petitioner then alleged that he could “compromise said claim by the payment of the sum of $2,000, and the costs incident to the proceedings,” and that he was “advised by his counsel * * * that it would be to the advantage of the estate * * * to effectuate said compromise, as the essential facts constituting the alleged wrongs complained of by the said Ruby G. King, are matters of record, that cannot be denied, and are of such a character that the case is one that calls for a settlement out of court.” The petition then prayed that the executor be authorized and directed to compromise the case for the sum of $2,000 and the costs incident to the proceedings. The second petition asked for authority and direction to the executor to compromise the suit brought by Ruby G. King to recover the sum of $960, for money borrowed from her by C. Harry King, in his liftime, and for services rendered in, nursing him, by the payment to her of $500. In the petition it was alleged “that the fact of said monies having been lent, and said services having been rendered, cannot be disputed successfully,” for which reasons the petitioner recommended the passage of the order.

The third petition filed by the executor, through his counsel, asked for authority and direction to compromise by payment to plaintiff John C. Kump of $1,200 in settlement of the suit brought by him to recover the sum of $1,673, “the same being for cash monies laid out by him for the late C. Harry King, amounting to the sum of $1,388.38, ⁴⁸⁴ on the first day of October, 1929,” with interest from the date last named to the first day of March, 1933. In this petition the executor alleged “that the correctness of said claim was personally known” to him “as the attorney for the late C. Harry King, on account of the many times demand had been made on him for the sum of $1,388.38, and accrued interest, while the said C. Harry King lived, but which monies he was unable to pay to the said John C. Kump.” On each of these three petitions an order was passed, authorizing and directing the executor to compromise the suit, as prayed. On July 1st, 1933, a further petition was filed by the executor, asking for the payment of an additional fee of $500 to his counsel for the estate. These services consisted: First, of the demand for a bill of particulars in two of the suits, and the filing of pleas in the three suits; second, interviews and investigations conducted by counsel on behalf of the estate, in connection with the petitions asking authority to compromise the, cases, which, as alleged, resulted in a great saving to the estate; third, his services in connection with the entry of judgment in each of the cases upon the compromise effected; and fourth, his services in the trial court and in this court on appeal, on the petition filed by Anna M. King, in the divorce case in the Circuit Court of Baltimore City, heretofore referred to, asking for the payment out of the estate of the unpaid balance of the alimony claimed to be owing to her.

Upon this petition, the court, by its order passed on July 1st, 1933, allowed the additional fee of $500, which amounted in all to the sum of $1,000 allowed him for the services above recited. On the 10th day of November, 1933, the appellant Millicent King McClusky filed her petition, in which she prayed that the orders passed on January 21st, June 9th and July 1st, 1933, should be vacated and dismissed. In the petition she alleged that, though vitally interested in the estate of her father, she learned for the first time of the status of the estate on or about the 30th day of October, ⁴⁸⁵ 1938, which was about two months after her return to Annapolis, Md., from Honolulu, Hawaii, where she, with her husband, an officer in the United States Navy, had lived for about two years. That her whereabouts could have been easily ascertained through friends and acquaintances living in Baltimore.

She alleged that she had much information and data which would have proved valuable in the settlement or defense of the claims upon which suits had been brought against the estate, that her mother’s whereabouts were likewise easily ascertainable, and she, too, had information that would have been useful and helpful in the resistance of these claims or suits, but that neither she nor her mother was consulted or conferred with by any representative of the estate relative to such claims or suits. On November 10th, 1938, Anna M. King filed a petition similar to the one filed by her daughter, containing like allegations, and she, too asked for the vacation and dismissal of said orders of January 21st, June 9th, and .July 1st, 1933. After filing her petition, Anna M. King died, and upon the suggestion of her death and the appointment of John F. Oyeman as her administrator, the latter was made party petitioner in her stead, and as such is the appellant in No. 11 Appeals. Answers were filed by the executor to the petitions of Mrs. McClusky and Mrs. King.

In them many of the allegations contained in the petitions of the executor, asking for authority and direction to compromise the suits mentioned, and the payment of the fee to James Fluegel, his attorney, are repeated. In addition thereto, there are allegations denying that Anna M. King and her daughter Millicent King McClusky were without knowledge as to the status of the case, and alleging that they, or at least their counsel, were informed of the proposal to compromise the suits named, and actually knew of the compromises when made, and that they made no objection thereto, or at least expressed no dissatisfaction therewith. The court, after hearing evidence upon the petitions of Millicent King McClusky and Anna M. King, and the answers thereto by the executor, passed its order, on the ⁴⁸⁶ 15th day of March, 1934, dismissing the petitions, and requiring the petitioners to pay the costs. It is from this order of March 15, 1934, that these appeals were taken.

The first, No. 10, by Millicent King McClusky; and the second, No. 11, by John F. Oyeman, administrator of the estate of Anna M. King, deceased. The questions to be decided in this case are: First, whether the court was right in the passage of its order of March 15, 1934, dismissing the petitions of Millicent King McClusky and Anna M. King, asking for the vacation and dismissal of the orders previously passed by the court, authorizing and directing the executor to compromise the claims and suits brought against him, as prayed. Second, whether the court was right in the passage of its order of March 15, 1934, dismissing the petitions of Millicent King McClusky and Anna M. King, asking for the vacation and dismissal of the orders allowing to James Fluegel, as counsel for the executor, fees amounting in the aggregate to the sum of $1,000. We will pass upon and determine these questions in the order in which they are herein stated.

Code, art. 93, sec. 270, provides: “The Orphans’ Court shall have power to authorize and direct any executor, administrator or guardian to compromise any claim against or in favor of the estate of any decedent or ward, as the case may be, in such manner as the said court may approve.” This Code provision undoubtedly gives to the orphans’ court jurisdiction to compromise claims or suits against the executor of the decedent, and it is with it to determine when such power should be exercised. To enable the court to determine this question properly, the essential facts relative to the claim or suit should be presented to it. In the case of Badders v. O’Brien, 114 Md. page 451, 79 A. 917, 918 , the questions there presented are similar to those presented in this case. William J. O’Brien, as executor of the last will and testament of Joseph Zane, filed a petition alleging that one Gertrude Flaherty had sued him for $15,000 in the Baltimore City Court, for services ⁴⁸⁷ rendered to the testator as housekeeper, nurse, and companion, for a stated period of time covering about six years, that the counsel employed by