Morgan v. Dietrich

⁶⁷ Sloan, J., delivered the opinion of the Court. The question here is the right of the same parties as trustees and executors to caveat a rival later will. The petition of Shirley C. Morgan and the Mercantile Trust Company of Baltimore alleges that Mary D. Walsh died July 30th, 1937, leaving a will and two codicils, admitted to probate by the Orphans’ Court of Harford County, whereby the petitioners were appointed executors of the estate, and trustees of the residuary estate for the use of the testatrix’ son, James Walsh, during his lifetime with remainders set forth in the will and second codicil. After the death of Mary D. Walsh, Frank B. Cahn & Company of Baltimore received the following letter: “Bel Air, Maryland, “July 27, 1937. “Messrs Frank B. Cahn & Company, “Equitable Building, “Baltimore, Maryland. “Dear Sirs :- “Will you please transfer from my account with you to the account of my son, Mr. James Walsh, $40,000 (Forty Thousand).

You can do this by selling such securities as you think most advisable for the purpose. “Thanking you, I am “Very truly yours, “(Signed) Mary D. Walsh. “Witnessed By: “Mary A. Sanford “Anne S. Noel.” Hearing of the death of Mrs. Walsh when the letter was received, Cahn & Company declined to act on it, and it was agreed between the executors and James Walsh that the securities in the possession of Cahn & Company be delivered to the executors, which was done, with the understanding that James Walsh would have the same rights against the securities in the hands of the executors as he would have had in the hands of Cahn & Company. ⁶⁸ October 21st, 1937, James Walsh and the executors executed an agreement that the letter of July 27th, 1937, was of no legal force or effect, and authorized the executors to disregard it, and to proceed with the settlement of the estate as though the instrument of July 27th, -1937, had never been executed. They proceeded to settle an account August 30th, 1938, by which the petitioners distributed to themselves as trustees the residue of the estate, appraised at §35,854.74, and have ever since possessed and managed the same. November 18th, 1939, E. Alexander Dietrich, administrator of James Walsh, deceased, offered for probate in the Orphans’ Court of Harford County, as a third codicil, the letter or instrument of July 27th, 1937, and the petitioners as executors and trustees under the will of Mary D. Walsh, by this petition, have filed a caveat to the alleged codicil and tendered the usual issues, and prayed that the paper writing be refused probate as a codicil to the will of Mary D. Walsh and that it be declared not entitled to probate. The administrator, E. Alexander Dietrich, answered, denying the right of the petitioners, either as executors or trustees, to file a caveat to the alleged codicil, and asserting that what was theretofore agreed upon between them and James Walsh as to the effect of the paper writing of July 27th, 1937; should not be considered in opposition to its probate.

The bulk of the residuary estate, after the death of James Walsh, was devised and bequeathed to the Most Reverend Michael J. Curley, Roman Catholic Archbishop of Baltimore, for the purposes stated in the will and second codicil. Archbishop Curley has filed a caveat to the alleged codicil of July 27th, 1937, as is conceded he had a right to do. The Orphans’ Court of Harford County decided that the petitioners, as executors and trustees, had no right to contest the probate of the alleged codicil of July 27th, 1937, and passed an order dismissing the petition from which this appeal was taken. ⁶⁹ The appellants’ contention is that the right to caveat the subsequent will is inherent in their appointment as executor and trustee, and they rely on the cases of Johnston v. Willis, 147 Md. 237 , 127 A. 862 , and Ellison v. Clayton, 164 Md. 35 , 163 A. 695 . The appellee contends that the appellants cannot caveat the alleged third codicil as executors, and cites the case of Helfrich v.