Strasbaugh v. Dallam

Schmucker, J., delivered the opinion of the Court'. The appellant and the appellee are co-executors of the will of William Dallam, late of Harford County, who died in 1899. The appellant is also the executor of the will of Wm. •F. Pannell, who died some years ago. The late William Dallam’s estate consisted of his home farm and a small amount of personal property and it was all given by his will to his four children, of whom the appellee is one. .The farm is subject to a first mortgage for $1,000 to the appellant which is undisputed and a second mortgage for $1,200 to the late Wm.

F. Pannell, the validity of which is the subject of dispute. The appellant proved the two debts secured by the several mortgages, as claims against Dallam’s estate proving one in his own right and the other on behalf of the estate of Wm. F. Pannell. Both claims were passed in the usual form by the Orphans’ Court.

The appellant and appellee as executors of Dallam, took possession of his personal estate, converted it into money and paid the expenses of the administration and then passed in April, 1900, their first account in the Orphans’ Court, showing a balance of $701, applicable to the payment of the debts of their testator. ' No material change in the situation occurred until the following December, when the appellant filed in the Orphans' Court the petition ¿gainst the appellee which set in motion the present controversy. The petition charged that the appellee refused to unite in passing an account applying the assets in hand to the payment of the debts of the testator, and also that he refused to permit the appellant to see the books and papers of the testator relating to his estate; and it prayed for an order requiring him to produce the books and papers and unite in stating an account. The appellee answered the petition denying that he had withheld the books of the estate from his co-executor, but ⁷¹⁴ admitting his failure to unite in passing an account applying the assets in hand to- the payment of all debts of the testator and assigning as the reason for his refusal that the children of the decedent of whom he was one objected to the payment of the mortgage claim, asserted by the appellant as Pannell’s executor, because they contended that it had long since been paid. The answer further averred that Dallam’s children had paid all the debts proven against his estate except the two, mortgages and had offered to pay off in full the mortgage due to the appellant in his own right and take an assignment of it, but the appellant had refused to accept payment and make the assignment.

The answer then suggested that an account be passed awarding to the appellant the proper proportion of the assets in hand applicable to the payment of his own mortgage and that the proportion of the assets which would be applicable to the Pannell mortgage, if its validity were admitted, be retained until its validity could be passed upon by a proper and competent tribunal. A general and a special replication were filed to the answer and a demurrer was filed to the replications, but we deem it unnecessary to discuss these pleadings as the technicalities of common-law pleading have never been introduced into the Orphans’ Court and a demurrer has no place there (Hignutt v. Cranor, 62 Md. 216 ; Munnikhuysen v. Magraw, 57 Md. 172 ), and the real issue between the parties is presented by the allegations of the petition and answer, the substance of which we have already stated. Later on in the progress of the case a petition was filed by the appellee asking that the proceedings be made plenary, but no formal action was taken thereon. Subsequently, still another petition was