Neighbors v. Beck

Sloan, J., delivered the opinion of the Court. Marion L. Beck, of Denton, Maryland, died in 1930, leaving a will, admitted to probate November 11th, 1930, by the Orphans’ Court of Caroline County, devising and bequeathing all of an estate, appraised at $120,669.39, to his brother, Josiah A. Beck, and a nephew, George W. Beck, except three bequests of $500 each to his brother, William Henry Beck, and two sisters, Mary Yirginia Neighbors and Annie Reed. Josiah A. Beck and George W. Beck were appointed executors, and the testator said in the will: “It is my will and desire that they be required to give only a nominal bond for the faithful performance of the duties hereby reposed in them.” On December 1st, 1931, the appellants filed their petition in the Orphans’ Court of Caroline County, wherein they alleged that they had filed a caveat to the will of Marion L. Beck; that the estate was appraised at the amount stated; that the executors had filed a bond in the penalty of “only ten thousand dollars,” and prayed that the executors, appellees, be required to give bond in the sum of $121,000 with corporate security, or a bond in excess of that amount with personal sureties. On this petition the orphans’ court passed an order requiring the executors to file in that court a bond with corporate security in the amount prayed, or a personal ³⁶⁴ bond in the penalty of $150,000, unless cause to the contrary be shown.

An answer was filed, which recited the provision of the will quoted respecting the executors’ bond, and stated “that the penalty of the bond heretofore fixed is far in excess of the amount sufficient to secure the payment of all the debts, taxes and assessments due by said deceased testator,” and demurred generally to the petition and prayed its dismissal. The petitioners replied that the “answer does not say that the said executors were excused from giving bond by the said alleged last will and testament of the said Marion L. Beck, and under article 93, sec. 42, of the Annotated Code of Maryland, it is oinly when an executor is- ‘excused by the testator from giving bond,’ that a bond can be given in an amount as the court considers sufficient to- secure the payment of the debts, taxes, assessments due by the deceased testator.” After hearing counsel the orphans’ court passed an order declaring the bond already given to be sufficient, and dismissing the petition, from which this appeal was taken. It is provided by section 42 of article 93 of the Code that an “executor or each of the executors shall execute a bond to the State of Maryland, with two sureties approved by the register or court in such penalty as the said register or court may require, or with a surety corporation authorized by the laws of this State to qualify upon such bonds, and whenever the surety upon such bond is a corporation so authorized to qualify as such, the amount of the penalty of such bond shall be fixed by the court o-r register in an amount not exceeding the probable value of the property and assets of the estate * * * and nothing herein shall prevent the court or register from increasing the penalty of any bond to such an amount as they or he may see proper, for sufficient cause shown; * * * but whenever an executor is excused by the testator from giving bond, then only such bond shall be given in an amount as the court or register shall consider sufficient to secure the payment of the debts, taxes, assessments due by the deceased; and the said bond shall be conditioned accordingly; provided, that whenever any heir, distributee, legatee or devisee named in the will shall make it appear to the ³⁶⁵ court that any executor who has given bond only as is last mentioned, is wasting the assets of the estate in his hands or that the said assets are in danger of being lost, wasted or misappropriated, then, in that case, the court shall require the said executor to increase the penalty of his bond to such an amount as the court shall think proper, and on his failure” so to1 do his letters “shall be revoked forthwith.” The complaint of the petitioners is that the right of a testator under the statute quoted to excuse an executor from giving bond, which restricts the penalty to an amount sufficient to meet the debts, taxes, and assessments, is not expressed by the language of the will in this case, that the executors, to whom were given all of the estate except $1,500, “be required to give only a nominal bond.” ETo authority has been produced to the effect that a testator’s directions regarding the penalty of his executor’s bond would be of no avail unless expressed in the words of the statute; but this statute must be given a construction that is fair and reasonable, and, if possible, effectual. Lewis' Sutherland Statutory Construction (2nd Ed.), sec. 488.

In the case of State, use of Poole, v. Talbott, 148 Md. 70 , 128 A. 908, 909 , cited by appellants, the clause of the will appointing the executor was: “I hereby instruct and appoint Henry Maurice Talbott, executor of this my last will and testament, whoi agrees to-serve as such without compensation and I desire that no-bond shall be required of him.” The executor gave bond for $20,000, which was more than double the amount of the estate. Suit was brought on the bond, and amongst the contentions of the sureties was that neither the orphans.’ court nor the register had a right to accept any bond except for-debts, taxes, and assessments due by the testatrix. Of that proposition this court said: “That section does indeed