Smith v. Stockbridge

Bowie, J., delivered tbe opinion of the Court. • The present appeal is the sequel of the case of O’Neill and others vs. Smith, Adm’r c. t. a. of James O’Neill, dec’d, decided in this Court on the 31st January, 1871, and reported in 33 Md., 569 . The main facts, on which it turns, are as follows : On the 2nd of July, 1864, the Orphans’ Court of Baltimore City, admitted to probate, certain affidavits,-as the nuncupative will of James O’Neill, deceased, by which all the estate of the deceased was given to Mary Smith, wife of the appellant, who thereupon took out letters of administration c. t. a., and passed two accounts, in the last of which, dated the 13th of February, 1866, he credits himself with “all the rest and residue of the personal estate bequeathed to his wife by the last will,” and “retained in right of his wife,” amounting to $3723.55. The next of kin, and heirs at law of the deceased, on the 27th of April, 1866, filed in the Orphans’ Court of Baltimore City, a petition, praying the proceedings previously had in the matter of the estate of James O’Neill, might be opened, and the case re-examined; that the letters granted the appellant might be revoked, and the petitioners allowed to receive their respective proportions of his estate. This petition, having been answered by the appellant, was by an order of the Orphans’ Court, passed on the 30th of April, 1869, dismissed.

On an appeal by the heirs at law and next of kin, to this Court, the order of the Orphans’ Court, dismissing the same, was reversed, and the cause remanded for further proceedings. Vide 33 Md., 574 . Among the reasons assigned by this Court, for reversing the order or decree appealed from, were the invalidity of the supposed nuncupative will, and that the petitioners were non-residents, and the Orphans’ Court, neither directed summons, nor order of publication for the heirs ⁶⁴³ at law, and they had not, therefore, either actual or constructive notice. In obedience to the decree of this Court, the Orphans’ Court on the 10th of February, 1871, by their order, reciting the decree of this,Court, reversing their previous order, and remanding the cause, adjudged, ordered and decreed, that the letters of administration granted to Michael Smith, on the personal estate of James ONoill, be revoked, and that their order dismissing the petition of Arthur O’Neill, and others, be revoked, and further ordered, that letters of administration, on the estate of the deceased, be granted to Henry Stockbridge, Esq.

Mr. Stockbridge, as administrator of James O’Neill, on the 18th of March, 1871, filed a petition in the Orphans’ Court of Baltimore City, reciting the previous proceedings of the Court in the matter of the estate of James O’Neill, stating his appointment as administrator, and charging that Smith, the administrator with the will annexed, disregarding the action of the Court, concealed, withheld and did not deliver the assets of the estate to the petitioner, and prayed that Smith might be summoned and required to answer. Smith appeared and answered this petition, denying all its allegations ; no proof was taken to sustain the petition, and the Orphans’ Court, relying upon the answer, as true, on the 17th of May, 1871, ordered and adjudged that the petition be dismissed with costs. On the 17th of April, 1872, Stockbridge, as administrator of O’Neill, filed another petition, charging that the administration account of the estate of James O’Neill, passed by Smith, on the 13th of February, 1866, was inadvertently allowed to be passed, without notice to the parties interested; and was procured to be passed by fraud; that it did not contain a true statement of all the moneys received by Smith ; that the petitioner had then recently discovered the account was false and fraudulent, and ⁶⁴⁴ prayed leave to surcharge and falsify said account; that the Court would order all omissions to be supplied, and all errors corrected, and that said Smith be summoned to show cause, why said account should not be reopened, etc. The appellant appeared and demurred to this petition. His demurrer being overruled, he thereupon answered, relying in part upon the previous action of the Orphans’ Court, upon the first petition of the appellee, which was dismissed, and further pleading that the ajspellee, as administrator of O’Neill, on the 19th of May, 1871, filed in the Circuit Court of Baltimore City, bis bill of complaint, against the appellant and wife and others, charging,- a,s in said petition was alleged, and praying an account, which bill of complaint was still pending, in said Court, and undecided, and denying the allegations of the petition.

To this answer a special replication was filed, and witnesses being examined and the cause heard, the Orphans’ Court, by its order of the 10th of June, 1873, adjudged that Michael Smith, the appellant, should state another account, charging himself with certain specific sums, “and that in his said account, he shall bring down the specific property, belonging to said estate, as a balance due sard estate, and retained by him as such, to await its distribution by order of this Court.” From which order, the said Smith appealed. The appellant assumes three distinct grounds for the reversal of the order appealed from. 1st. That the estate of James,O’Neill was fully administered before the petition of the appellee was filed in the Orphans’- Court; and the surplus of the estate of the deceased having been passed over to the legatee, by the appellant, and allowed by the Orphans’ Court, in the second and