SMITH, EXEC. v. Waller

Hammond, J., delivered the opinion of the Court. Minna Waller, widow of Max J. Waller and an income beneficiary for life under his will, petitioned the Orphans’ Court for Baltimore County to remove the appellants, Nathan Smith and Helen Corkran, as executors and trustees of his estate. She alleged in her petition that they were derelict in their duties as executors and subject to removal because (a) they had not filed an inventory within three months of the grant of their letters, and (b) this failure and their added failure to supply her with information about the “financial condition” of the estate caused her “to suffer grievous mental concern, grave emotional disturbances, and serious and severe anxiety concerning the estate.” The appellants filed the inventory, showing an estate of some million and a quarter dollars ($146,788.45 as the value of a sole proprietorship and the rest the appraised value of stocks of two wholly owned corporations), and it was accepted and approved two days after the petition for removal was filed (two weeks after the expiration of the three months’ period). Later, after a hearing, the Orphans’ Court removed appellants and appointed Mrs. Waller, one of her lawyers, and, over his prior express objection, one of the lawyers for the appellants, as successors. 1 The original executors appealed to this Court.

Max Waller’s will gave all his tangible personal property to his wife and the rest and residue to the appellants ⁹⁷ as trustees, the income from one-third to go to his widow for life. The trustees were authorized and directed to pay from principal, in their discretion, such sums as might be necessary for illness or medical care “or to maintain my said wife in the standard of living to which she has been accustomed.” The testimony was that Nathan Smith was a lifelong friend of the testator and his accountant and business associate for many years, and that Helen Corkran was the office manager of the several Waller corporations and business interests and had been the testator’s personal secretary for twenty-two years. Mr. Waller died on March 16, 1960. Letters testamentary were granted to appellants on April 1.

Thereafter, Mr. Smith arranged a meeting of the widow and the lawyer who drew the will and was counsel for the executors (a lawyer of long experience and of outstanding reputation and stature in the field) so that he could read and explain the will to Mrs. Waller. Mrs. Corkran procured the life insurance policies on Mr. Waller’s life, which were payable to Mrs. Waller, and arranged for the proceeds to be paid to her. The fact that title to the family home passed to Mrs. Waller as a joint owner was confirmed to her. The appellants paid Mrs. Waller weekly sums for the household expenses as Mr. Waller had done and $2,000 in addition, and also paid some $6,000 in bills, part representing debts due before Mr. Waller died but most for those incurred after.

Mrs. Waller’s testimony was that she had wanted to know if the family could continue to live after her husband’s death as they had before, so she called on Mr. Smith at his office about three weeks after her husband died to find out the size of the estate, and he asked her to be patient. He then went on a vacation, and, so did she. About June 1, she and a family friend and advisor met with the executors and were told that Mr. Smith was working on the figures of the various businesses and to be patient. Several times in June she went to the office of the various Waller companies, of which she was an officer, to sign checks, and asked Mrs. Corkran if ⁹⁸ the balance sheets were ready.

Mrs. Corkran said Mr. Smith had the records and, after calling him, would say the figures were not ready. A meeting was arranged for June 22 at the office of the lawyer who drew the will and who was counsel for the estate, at which the figures were to be gone over and explained. Mr. Smith’s mother-in-law died on June 22 and the meeting was postponed. Mrs. Waller’s brother, a lawyer, told her the inventory would have to be filed within three months of April 1, and her testimony leaves the definite impression that after the postponement she, at her brother’s suggestion, deliberately avoided a meeting and awaited the expiration of the statutory period so that she could act if no inventory were filed.

She said that from her husband’s death until she filed the petition in the Orphans’ Court, she submitted bills to the executor exactly as she “had done previously” and the executors paid the bills and the weekly living expenses. Mrs. Corkran explained that after the postponement of the June 22 meeting she asked Mrs. Waller, who was in the office to sign company checks, when she wanted another meeting and was told by Mrs. Waller that she was going to Canada and would be away until after the fourth of July. Mrs. Waller telephoned Mrs. Corkran on July 6 to say she had not made the trip and, on a visit to the office the next day, said she would be too busy with guests at her home for the next week to meet with the executors. The Orphans’ Court summons of July 12 to show cause why the executors should not be removed followed without prior warning.

Mr. Smith’s version of the matter was that just after the appointment of the executors he was swamped with income tax work, including that of the Waller businesses, that then he had to straighten out various operating difficulties of the Waller oil companies, that because of the “cross ramifications” and inter-relations of the Waller sole proprietorship and of the two Waller corporations, it was necessary to get an extension to file the income tax returns, that the profit and loss statements could not be finished until the end of May or early in June, and that he then started working on ⁹⁹ the balance sheets.