McComas v. Wiley

⁵⁸⁵ Thomas, J., delivered the opinion of the Court. On the 12th of August, 1918, Thomas H. Wiley, Richard H. Wiley, Harry E. Wiley and Robert L. Wiley, adminisr trators c. t. a. of Charles L. Wiley, deceased, passed their administration account in the Orphans’ Court of Harford County, in which they charged themselves with the personal estate of the decedent to- the amount of $4,477.54, were allowed for “payments and expenses-” amounting to $2,563.63, and stated the “balance in hands of administrators for distribution” to he $1,913.91. On the 3rd of September, 1918, Charles H. McComas, administrator of Mary Edith Wiley, deceased, filed a petition in said Court, setting out the appointment by said Court of the said administrators c. t. a. of Charles L. Wiley, and also his appointment as administrator of Mary Edith Wiley, and alleging that Charles: L. Wiley, by his will of record in said Court, gave his wife, Mary Edith Wiley, all his estate, both real and personal; that o-n the 22nd of June, 1917, the said Charles L. Wiley and his wife, and their only child, an infant, while crossing the tracks of the Pennsylvania Railroad Company in an automobile were “ran into by a train of said company, and ‘the testator and his child were thrown” against an embankment “and both of them were fo-und dead” ; that Mrs. Wiley was thrown “from the automobile upon the front of the first loco-motive” attached to- the train “and was carried several hundred feet down the tracks” of the railroad company “and was found living”; that the administrators cuan testamento annexo of Mr. Wiley had filed “their first and final administration account showing in their hands for distribution the sum of $1,913.91,” and that the petitioner, as the administrator o-f Mrs. Wiley, who, he averred, “outlived both the testato-r * * * and her infant child,” was entitled under the will of Mr. Wiley “to receive the said sum of $1,913.91, now ready for distribution.” The petition p-raye-d the Court to- pass an order directing the administrators c. t. a. of Mr. Wiley to pay to the petitioner the ⁵⁸⁶ said sum of $1,913.91 in their hands, as shown by their administration account. The administrators c. t. a. of Mr. Wiley answered the petition, admitting their appointment as administrators c. t. a- of Mr. Wiley, the appointment of the petitioner as administrator of Mrs. Wiley, that Mr. Wiley left a will giving all his estate to Mrs. Wiley, and that they had, as alleged in the fifth paragraph of the petition, stated their “first and final administration account showing in their hands for distribution tbe sum of $1,913.91.” Tbe answer alleged that Mr. and Mrs. Wiley and tbeir child “perished in a common disaster”; that it was “impossible to determine the order of their respective deaths,” and that the respondents therefore denied that the will of Mr. Wiley was effective or operated to pass any of his property or estate to Mrs. Wiley, and denied that the petitioner was entitled to receive “any sum out of said estate,” and further’ alleged “that by reason of said will being so inoperative and ineffective, the personal estate” of Mr. Wiley “passed to his brothers and sisters/’ the respondents, and Elizabeth A. Slade and Caroline B. Anderson, “as his only distributees.” The Orphans’ Court, holding that it appeared from the evidence that Mrs. Wiley did not survive her husband, and that therefore the will of Mr. Wiley did not take effect, passed an order dismissing the petition, requiring the petitioner to pay the costs, and directing the personal estate of Mr. Wiley to be “distributed equally amongst” his next of kin.

On appeal this Court took a different view, and after stating that it was alleged in the petition that the personal representative of Mrs. Wiley was entitled to receive from the administrators cmn testamento annexoi of the estate of Mr. Wiley a fund of $1,913.91, “which their administration account shows to he the amount of the personal estate for distribution,” and after a full and careful review of all the evidence, Judge Ukneb.., speaking for the Court, said: “The testimony of Dt. Bortner that Mrs. Wiley must have died at the instant she was injured is not so convincing and conclusive as to induce us to adopt his ⁵⁸⁷ opinion in preference to the direct observation of witnesses who testify that she was in fact alive some time after her injuries were received. If, however, his opinion were to be accepted as decisive upon the question as to the sequence of the deaths with which we are concerned, the result would nevertheless he adverse to1 the ultimate interests of the respondents. As already noted, Dr. Bortnor testified that Mr. Wiley survived his wife for the brief interval of time between the colliding of the engine with the automobile and the striking of his head against the rocks sixty feet distant, if this theory that Mrs. Wiley predeceased her husband were to be adopted, the estate in litigation bequeathed to her by his will would belong’ to her next of kin by force of the statute to which we have referred.

But our conclusion from the evidence is that Mrs. Wiley survived her husband and that by virtue of the provisions of his will in her favor the administrator of her estate is entitled to the fund in controversy.” The order of this Court was: “Order reversed and cause remanded to the end that an order may be passed in accordance with the opinion of this Court, the costs to be paid out of the estate.” After the case was remanded to' the Orphans’ Court, that Court, on the application of the administrators c. t. a. of Mr. Wiley, passed the following orders: “The application of administrators c. t. a. of Charles L. Wiley, deceased, for permission to expend a reasonable sum of money in the erection of tombstones over the graves of Charles L.° Wiley, Mary Edith Wiley, his wife, and Buth Wiley, their child, came on to be heard. The administrator of Mary Edith Wiley was duly notified of said application, and argument of counsel was had in open court; it is thereupon, this 22nd day of July, in the year 1919, by the Orphans’ Court of Harford County, adjudged and ordered that such an allowance as that prayed be made and that the sum to be expended for such purpose be and the same is hereby fixed at three hundred dollars ($300), and it is further ordered that the said administrators pass ⁵⁸⁸ a second account in the aforesaid estate of Charles L. Wiley wherein the said allowance shall appear.” “The application of the administrators c. t. a. of Charles L. Wiley, deceased, for an allowance for counsel fees in the settlement of the estate of the said Charles L. Wiley, and in the determination and conduct of the various questions and suits that have arisen therein in this court and in the Court of Appeals, coming on to he heard, and due notice thereof-having been given to the administrator of Mary Edith Wiley, both sides having appeared in the said court by counsel were heard. It is thereupon this 22nd day of July, in the year 1919, adjudged and ordered that an allowance of counsel fees be made to the said administrators for the services of Shirley Carter and Stevenson A. Williams in this court and in the Court of Appeals as aforesaid, and that the sum of seven hundred and fifty dollars ($750) be fixed as the sum to be allowed the administrators to be paid to the said attorneys, and it is further ordered that the said administrators pass a second account in the aforesaid estate of Charles L. Wiley, wherein the said allowance shall appear.” In pursuance of said orders, an account was stated by the administrators of Mr. Wiley and passed showing, after deducting the costs in this Court of said appeal, the cost of printing the brief of the appellees in support of a motion for reargument, the costs in the Orphans’ Court, and the $300.00’ and $7,50.00 allowed by said orders, a balance in their hands of $215.65. The present appeal is, however, from the two orders of July 22nd, 1919, and brings up for review the allowance of $300.00 for tombstones and the allowance of $750.00 for counsel fee. 1.

Section 5 of Article 93 of the Code (1912), authorizes the Orphans’ Court, in its discretion, to allow funeral expenses “not to exceed three hundred dollars,” and it appears, from the record of the former appeal (Ed. 13 Appeals, April Term, 1919), that $365.50 was allowed in the first account for funeral expenses and $12.50 was allowed for “digging ⁵⁸⁹ grave.” The appellees claim that those allowances were for funeral expenses of Mr. and Mrs. Wiley and their child, and that if one-half of those amounts, he deducted for the funeral expenses of Mrs. Wiley and her child, and if one-third of the $300.00 allowed by the above order for tombstones be taken as allowed for Mr. Wiley’s tombstone, the -aggregate of his funeral expenses will be only $289.00. Apart from the question whether the husband’s estate can be said to be liable for the funeral expenses of a wife who-, as in this case, survived him, the obvious answer to the suggestion of the appellees is that the power and authority of the Orphans’ Court to- allow for funeral expenses is limited by the statute to $300.00, and if that provision should be construed to apply only to tbe funeral expenses of the decedent whose estate is being administered, the Orphans’ Court is without authority to allow other funeral expenses. The limit fixed by the statute having been exceeded in the first account of the appellees, it is clear that the Orphans’ Court had no power to make a further allowance. 2. In reference to the counsel fee allowed the appellees, rely upon the cases sustaining an allowance of counsel fees to an executor who resists a caveat to a will filed after the will has been admitted to probate, and upon Young's case, 8 Gill, 285 .

In the caveat cases referred to the allowance rests upon the theory that, after the will is admitted to probate it is the duty of the executor to defend it. In Young's case the fee was allowed an administratrix, who successfully asserted her right to letters of administration, in analogy to the practice of allowing an executor for costs in defending a caveat. The Court said in Young’s case : “The trust and confidence created by a testator in the selection of his executor, is in the case of administration, created by law. The custodiary, in his relation to the person and estate- of the intestate, is distinctly designated, first,' to prevent litigation about the possession, and secondly, Tor the security of the ⁵⁹⁰ estate’; and under our