Phillips v. Green

Johnson, J., delivered the opinion of the Court. This is an appeal from an order of the Orphans’ Court for Anne Arundel County passed on January 7th, 1941, overruling and dismissing exceptions filed by Alfred W. Phillips to the allowance of certain items claimed by appellee in her first and final administration account filed in the estate of John L. Phillips. Appellee has moved to dismiss the appeal for two reasons, first, because the items concerned are costs within the meaning of Code Article 93, Section 265, and therefore the Orphans’ Court is clothed with the discretion under the statute in awarding them, hence no appeal lies from the exercise of such discretion; second, because the order of appeal from the action of the Orphans’ Court was not taken within thirty days as provided by Code Article 5, Section 64. We will hereafter consider this motion, first stating the facts.

John L. Phillips, a resident of Anne Arundel County, died testate, his last will and testament was admitted to probate and letters testamentary were granted to M. Clare M. Green. Subsequently Alfred W. Phillips, a legatee and distributee, filed a caveat to the will, issues were framed and transmitted to a court of law for trial. The trial was held on September 30th, 1940, in the Circuit Court for Howard County, and the answers of the jurors ⁵⁸⁵ to the issues submitted resulted in sustaining the will. A certified copy of the docket entries, including the jury’s answers to the issues and the amount of costs taxed in the trial court, was by the clerk thereof forwarded to the Orphans’ Court for Anne Arundel County.

It may here be stated that no objection has been made to the allowance of the costs taxed in the trial court, nor to the fact that the Orphans’ Court awarded them against this appelant, caveator of the will, and it is conceded that in so doing the Court acted within its exclusive and discretionary powers from which no appeal will lie. Code Article 93, Section 265; Browne v. Browne, 22 Md. 103 ; Bantz v. Bantz, 52 Md. 686 ; Johns v. Hodges, 60 Md. 215 ; Brown v. Johns, 62 Md. 333 ; French v. Washington County Home, etc., 115 Md. 309 . On November 12th, 1940, appellee filed in the Orphans’ Court for Anne Arundel County a petition, in which inter alia she alleged that certain named persons attended the trial of the issues in Howard County at the instance of the defendant; that three of them gave testimony in the case, while nine others waived being summoned, but attended the trial to testify on behalf of appellee. In the petition is stated the distance which the potential witnesses lived from Ellicott City, and in one instance that was alleged to be three hundred miles.

It was also alleged in the petition of the Executrix that she was required to pay a renewal premium on her bond, because of the delay in the settlement of the estate, pending the trial of the issues. The part of the petition with which we are concerned prayed the court for an order directing the Executrix to deduct “expenses” to the persons characterized as “witnesses for the caveatee” from the distributive share of the caveator, and the court on November 12th, 1940, passed its order granting the request prayed, that is it attempted to authorize the Executrix to pay nine persons S3.50 each, a tenth $4.00, and eleventh §15.00, and §30.00 to a twelfth and §35.00 for the renewal premium on the bond. Accordingly the Executrix in her first and final account presented to the ⁵⁸⁶ court on November 26th, 1940, claimed allowances for such items, nothwithstanding that none of the potential witnesses mentioned had ever made known their presence to the Clerk of the Court for Howard County by proving their attendance at the trial, in accordance with the requirement of Code Article 35, Section 16, that: “There shall be allowed to each witness attending the circuit courts for the counties or orphans’ courts of this State the sum of one dollar for each day such witness shall attend for the discharge of his duty, besides itinerant charges to be allowed to witnesses coming from other counties; provided, that every such witness shall obtain from the clerk of the court wherein he attended, or from the register of wills, if such attendance was before an orphans’ court, a certificate or order showing the amount due him for such attendance, and by whom the same is payable, within thirty days after such attendance shall have been rendered; and the failure to apply for such certificate or order within said time shall be a waiver by the witness of all claim to compensation for such attendance.” According to appellee’s petition filed in the Orphans’ Court for the allowance of the sums previously mentioned, the trial of the issues was held in Howard County on September 30th, 1940, and since her petition was not filed until November 8th, following, it would follow that the parties referred to failed to prove their attendance in Howard County within the time specified by the above quoted statute. The final account containing such allowances was passed by the court November 28th, 1940, and not only is there no showing that appellant was informed it would be presented, but