Tilghman v. Frazer

Markell, J., delivered the opinion of the Court. This case arises in the administration of the estate of Mrs. Belle H. Tilghman, who died on March 5, 1931, and relates indirectly to the estates of her father and ⁴⁸⁰ mother, Dr. Samuel A. Harrison, who died in 1890, and his widow, who died in 1909. Mrs. Tilghman’s will was probated and her executors qualified on March 17, 1982. Appellant filed claims against the estate in the Orphans Court.

In 1934 appellees filed a bill in equity against appellant for construction of the will. Appellant filed an answer, and a year later an amended answer, and in 1936 appellees filed a replication. In 1938 appellees filed another bill against appellant, asking the court to assume jurisdiction over the estate, in consolidation with the previous Equity case, and for completion of the administration and distribution of the estate and construction of the will. Appellant consented to assumption of jurisdiction and reaffirmed his claim.

The court consolidated the two cases, assumed jurisdiction of the administration, and referred the proceedings to an auditor to state audits in conformity with the respective contentions of the parties. Nothing was done before the auditor. In 1947 hearings were had, the court filed an opinion and on January 2, 1948 filed a supplementary memorandum and a decree, from which appellant appealed to this court. On June 17, 1948, we filed our opinion, affirming in part and reversing in part the decree below, and remanding the case for further proceedings.

Tilghman v. Frazer, 191 Md. 132 , 59 A. 2d 781 . In response to an application by appellant for a further statement as to the construction of the will, on October 6, 1948 we filed a supplemental opinion, 191 Md. 153 , 62 A. 2d 596 . In the lower court on April 19, 1949 an amended decree was filed pursuant to our opinions, whereby among other things, a new special auditor was appointed to state an administration account and a distribution account. On July 28, 1949 the auditor filed a preliminary report that he had determined that there was a deficiency of cash, which approximated $10,000, to pay debts, taxes, other charges and legacies specified in the amended decree.

At the request of both executors, appellant and Dr. Frazer, appellee, the court on August ⁴⁸¹ 1, 1949 referred the preliminary report back to the auditor to state a more detailed report as to how he arrived at the deficiency of approximately $10,000. On September 3, 1949 the auditor filed a second preliminary report, in which he stated fully his opinion and conclusions on the contentions of the respective parties, his reasons and the authorities deemed pertinent, and set out fully his computations, showing, as of June 10, 1949, a cash deficiency of $10,036.45, “reported at the amended figure of approximately the sum of $10,040”. To this report lengthy exceptions, in the nature of briefs with citation of authorities, were filed by both appellant and appellees. These exceptions were heard by the court and briefs filed.

On August 21, 1950 the court filed a “memorandum” expressing accord with the auditor’s views, but expressly refrained from final ratification of the auditor’s report, and instead filed an order requesting the auditor to file a third preliminary report, including computations only, showing the estimated amount of securities necessary to be sold the cash deficiency] as of September 1, 1950. On October 27, 1950 the auditor filed his third preliminary report in which he showed, with computations only, “the estimated