State Ex Rel. Poole & Scarboro v. Talbott

Oitutt, J., delivered the opinion of the Oourt. Evelina W. Poole died in 1904, leaving a last will which was probated in the Orphans’ Oourt of Montgomery Oounty, December 27th, 1904. In that will, after leaving pecuniary legacies to two' of her children, she devised and bequeathed the residue of her estate to Georgia It. Poole and Henry Maurice Talbott, in trust to invest the proceeds and to pay over the income to the said Georgia for the maintenance and support of herself and her two' children, Thomas S. and Mary It.

Poole. She further provided that “In the event of the marriage of the said Georgia E. Poole before the youngest of said children' shall arrive at the age of twenty-one (21) years, then the' income from such sum shall be applied to the support and maintenance of said children and the entire principal shall be equally divided between them at such times as shall be deemed proper by said Henry Maurice Talbott, provided said payment shall be made before each shall arrive at the age of 25 years. It is my desire that my grandson, Thomas S. Poole, shall receive such education as my said trustees may think advisable, and said trustees are hereby directed and authorized to use for this purpose so much as may be necessary of the money as may be coming to him for such purpose.. In the event the said Georgia E. Poole does not marry before the youngest of said children shall have arrived at the age of 21 years, then I desire that said principal sum shall be equally divided between the said Georgia E. Poole and said children, each one receiving one-third part.” Finally, in the following clause, she appointed Henry Maurice Talbott her executor: ⁷³ “I hereby instruct and appoint Henry Maurice Talbott, executor of this my last will and testament, who agrees to serve as such without compensation, and I desire that no bond shall he required of him.” On April 11th, 1905, a; bond in the penalty of $20,000, executed by Talbott as executor and Joseph Heading' and A. J. Almoney as sureties, was filed, and on the same day letters testamentary were issued to Mr. Talbott.

The condition of that bond was as follows: “That if the above bounden Henry Maurice Talbott shall well and truly perform the office of executor of last will of Evelina W. Poole, late of Montgomery County, deceased, according to law, and shall in all respects discharge the duties of him required hv law, as executor aforesaid, without any injury or damage to any person interested in the faithful performance of the said office, then the above obligation shall be void; it is otherwise to he in full force and virtue in law.” After the grant of letters Mr. Talbott reduced the assets of the estate to his possession and, on September 14th, 1906, his first and final administration account was passed, showing a balance in his hands of $8,544.24, and bearing this Dotation: “The above balance goes into the hands of trustees under will of Evelina W. Poole, deceased.” That account shows that the executor claimed and was allowed commissions amounting to $223.73, and it indicated that the balance in his hands was in the form of mortgages. That balance was never actually transferred fto Mrs. Poole and Mr. Talbott as trustees, and on February 1st, 1913, tlie cesiuis que trust brought an action in the Circuit Court for Montgomery County in equity against Mr. Talbott individually and as executor of the will of Evelina W. Poole for an administration of the trust estate and the ap ⁷⁴ p ointment of trustees to receive from Mm individually and as executor of the last will and testament of Evelina W. Poole the proceeds of the estate not accounted for, and in that proceeding Georgia ft. Poole and Harold E. Scarboro were appointed substituted trustees and, on March 23rd, 1915, it was decreed that “the defendant, Henry Maurice Talbott, executor and individually forthwith pay to said trustees the said sum of seven thousand, nine hundred three and 12/100 dollars ($7,903.12) without further deduction or abatement, except installments of said sum as shall be paid to said trustees and duly credited hereon.” Following that decree, from time to time efforts were made by the trustees to obtain the balance found by the decree to be due the estate from Mr. Talbott, and some part of it was secured, but the greater part remained unpaid, and on March 20th, 1916, the substituted trustees brought in the Circuit Court for Montgomery County an action on the executor’s bond against Henry Maurice Talbott, Joseph' Beading, and Albert J. Almoney to recover that balance. The defendants pleaded, (1) non est factum; (2) never indebted,- (3) plane admdovisiravit; and (4) a traverse of the allegation that the executor had not well and truly performed the duties of his office.

Issue was joined on those pleas and the ease came on to be tried before the court sit-' ting as a jury, and at the conclusion of the whole case the court granted the defendants’ first prayer, which directed a' verdict for the defendants, Beading and Almoney, on the ground that there was no evidence in the case legally sufficient to warrant a recovery against them. A verdict and judgment were accordingly entered for those defendants, and from that judgment the plaintiffs appealed. The only exception found .in the record relates, to the action of the court in granting that prayer. The appellees contend: (1) that since the executor was, by the terms of the will, excused from giving bond, that neither the orphans’ court nor the register of wills had ⁷⁵ authority to accept any bond except for the payment of debts, taxes, or assessments, and that this bond not being for tbat purpose was either void, or at most only liable for default in the payment of debts, taxes, or assessments; (2) that the bond was never approved by the orphans’ court and was therefore void; (3) that when the executor stated his final account, and the period prescribed by law for completing the administration expired, possession of the estate by operation of law was transferred from Talbott as executor to Talbott and Mrs. Poole as trustees; and (41 that the plaintiffs are barred from recovery by the conduct of Mrs. Poole as trustee.

Before considering these propositions, we will refer briefly to the evidence relating to them, the truth of which will for the purpose of this opinion be assumed. Much of the evidence in the record relates to- the amount of Talbott’s indebtedness to the estate, hut since there was evidence to show that he was indebted to the estate for an amount within the jurisdiction of the court, and as the prayer denied the plaintiff the right to recover at all, we need not refer particularly to it. The other evidence may he considered under two heads, that relating to the factum of the bond, and that relating to the conduct of Mrs. Poole. There is no record evidence that the Orphans’ Court of Montgomery County ever fixed the penalty or approved the bond, or that any proceeding of any kind in connection with it was ever instituted.

The records of the register of wills show the probate of the will, the filing of the bond, the oath, the grant of letters, and the filing and passing of the account and nothing else. In referring to that situation, Miss Lydia E. P'rettyman, a clerk in the office of the register of wills, said: “I have not made any search, but when an executor is appointed in our court we do not have such an order. If an administrator, they have to have an application which shows that they must give a bond, but when an executor is appointed the court just requires him verbally to give bis bond. Q. And there is no record ?

A. There is no record.” Later, ⁷⁶ Miss Prettyman was recalled and gave this testimony: “Suppose the register of wills receives a bond, and marks it, files it, and issues the letters testamentary, and subsequently, when the court is iu session, obtains the verbal approval of the court. Would there be any entry made in accordance with the practice of your office of that approval? A. To my knowledge the letters have never been issued without the bond having been approved by the court. The letters have never been issued by the register of wills, only after the bond has been approved by the court. * * * Q. This bond in which we are concerned, iu the present case, appears to have been marked filed by the register of wills, and the same day letters were issued to the .executor, but there appears to be no entry of record of the approval of tlie bond of the orphans’ court, in accordance with the practice, do you understand?

Would the approval of the orphans’ court be entered iu the record iu accordance with the practice in such a case as this? A. Ho, I think not, but I do not know of any case like that. Letters are never issued until the bond is formally approved by the court and an order signed approving it, which is recorded in our minutes. * * * Q. Is that the invariable practice, to pass a formal order of approval? A. It lias been since I have been in the office.

Q. And this is entered on the minutes ? A. Yes, this is entered in the minutes. Q. And you know of no case where the court approved a bond verbally? A. Ho * * * Q. What is your usual practice in the orphans’ court in regard to the bond and issuance of letters?

Do you allow letters to be issued without bond being approved, without the formal approval of the bond? A. Ho, I think not. * * * You say there is no1 formal issuance of letters in the case of an executor? A. There is no record of it. We do not record that-.

We give a certificate to the executor that lie has been appointed by the co-uft, signed by the register. Q. There is no memorandum made on your docket as to the issuance of that ? A. We do not record it. Only tlie date.” Mr. Talbott, testifying for the defendants, was unable to ⁷⁷ recall any of the circumstances surrounding the execution or the filing of the bond, and when asked about that he said: “Q. I want to ask you, Mr. Talbott, as to the occasion for giving a bond in this case, of $20,000; do you recall why this was done?

A. Ho, I do not. Q. You are familiar with the will ? A. I recall the provision of the yAU and I was rather surprised at the size of the bond. I know the custom of the court is always to require some kind of a bond, but I have no independent recollection of why that bond should be that amount, absolutely not.” Concerning the conduct of Mrs. Poole, the only testimony found in the record is that of Mr. Talbott, Mrs. Poole herself, and Mr. Harold Scarboro.

She testified that, beginning before 1906 to 1915, she repeatedly asked Mr. Talbott about the estate and demanded that he inform her of the investments, and Mr. Talbott told her that the papers had been mislaid and put her off on one pretext or another until she finally employed a lawyer to assist her; that Mr. Talbott never turned over the estate to her; that he never turned over oik; penny or paper in the case to her except the amounts with which he was credited, and that she did not acquiesce in, his withholding the estate from her. Although upon his promises to pay she agreed from time to time to delay pressing her demands. The testimony of Mr. Talbott throws little positive but more reflected light on the issues, as may be seen from these extracts from it: “Q. Do' you recall whether or not she expressed a desire to have these funds credited to your joint account ? A. Ho, so far as I know, she did not, although I am not prepared to say she did not.

I have no recollection of it.” Speaking of the securities, he gave this testimony: “When the account was settled in orphans’ court, they never had been paid, had they? A. Ho, T do not believe so. Q. They had a balance of $8,000 to be distributed to Mrs. Poole and yourself as trustees ? A. Yes.

Q. Why wore they not transferred to yourself and M.rs. Poole as trustees ? A. I suppose carelessness on my part and carelessness on ⁷⁸ hers, too. * * * You did not hold these securities as attorney for the estate ? A. Oh, no.

Q. You held them as executor? A. I held them as executor and the McMillan mortgage was given as executor. * * * She and we, she and I, were trustees under the will. I never turned anything over, and if I ever turned any paper over to her’it was the John H. Boole mortgage or deed of trust. I am rather inclined to think I turned that over to her and another one that I turned over to her, the Mills trust of $500.

That was collected through the office of Talbott and Prettyman. * * * Q. That you were presumed to turn over as an individual, and you should have, to yourself and your co-trustee, as co-trustees, this property? You know that you and Mrs. Boole were co-trustees and that you and Mrs. Poole as co-trustees were entitled to have that property made over to you as co-trustees, even though no demand