Tribull v. Tribull

Bruñe, C. J., delivered the opinion of the Court. The appellant, Paul A. Tribull, as one of the residuary legatees under the will of his mother, Anna B. Tribull, brought a suit in equity in the Circuit Court of Baltimore City against the appellees, Francis A. Tribull and Evelyn ⁴⁹³ Tribull, his wife, and against the executor of the estate of his mother and the Canton National Bank, to set aside a transfer of a savings deposit made by Anna B. Tribull from an account standing in her name alone to a trust form of deposit “for herself and Francis A. Tribull, joint owners, subject to the order of either, the balance at death of either to belong to the survivor.” At the conclusion of the plaintiff’s testimony the Chancellor granted what was in effect (though not in name) a motion by the individual defendants to dismiss the bill, and subsequently entered an order of dismissal. The appeal is from that order. Two principal questions are presented.

The first is whether a legatee may sue in equity to enforce a claim on behalf of the estate or may only take proceedings in the Orphans’ Court to require the executor to sue. If the first question is answered in favor of the legatee’s right to sue, the second question is whether or not he has established sufficient facts to maintain his suit. Mrs. Anna B. Tribull was the mother of seven children, two of whom are Paul and Francis, who are parties to this suit. Another of her sons (John A.) is a priest; one of her daughters (Mary M.) is a nun.

By her will, which was executed in September, 1951, Mrs. Tribull made bequests aggregating $2,500 to two Roman Catholic churches and to a missionary organization, bequeathed the greater part of her estate, consisting of stock valued at more than $30,000, to her two children who had gone into religious orders, and gave the residue of her estate in equal shares to her five other children. Mrs. Tribull died of cancer on July 13, 1952, at a hospital to which she had been admitted on July 1, 1952. The savings account which is the subject of this suit apparently had its origin prior to December 6, 1945. On that date the account, then amounting to $14,869.00, was put in the name of Mrs. Tribull in trust for herself and her daughter, Antoinette J. Tribull (now Mrs. Steinert), as joint owners, the balance at death of either to belong to the survivor, but it was subject to the order ⁴⁹⁴ of Mrs. Tribull alone.

This account was numbered 20626 and is sometimes referred to below as the “first account.” Mrs. Steinert, who is one of the residuary-legatees, but is not a party to this suit, testified that she went to the bank with her mother when the first account was established and that the purpose of putting her (the daughter’s) name on the bank book was to enable her to go to the bank to withdraw money for her mother when the latter needed it in case she was sick. It will be noted that because of the form of the account, withdrawals could be made only upon orders signed by the mother. Under the bank’s practice it was necessary that the daughter, in order to make a withdrawal, produce both a withdrawal slip signed by the mother and the passbook. Occasional withdrawals- in amounts usually of two, three or -four hundred dollars and in a few instances of five or six hundred dollars, were made at intervals varying from about one month to six months, but only one deposit, other than interest credited, was made, from December 6, 1945, until July 3, 1952.

As a result, the account gradually declined during that period to $7,-278.17. It remained, however, unchanged in form, although from 1947 until about May, 1951, there was a marked coolness between Mrs.- Tribull and Mrs. Steinert. In or about May, 1951, Mrs. Tribull became sick and asked Mrs. Steinert to help her; and except for a time in May, 1952, when Mrs. Tribull was in the hospital, Mrs. Steinert took care of her until Mrs. Tribull was again admitted to the Lutheran Hospital on July 1, 1952. On that date Francis A. Tribull, one of the defendants, took his mother to the hospital in what proved to be her last illness.

Two days later, July 3, 1952, the first account was closed, and the balance then on deposit, amounting to $7,278.17, was transferred, upon the presentation of the passbook and a. withdrawal slip signed by Anna B. Tribull, to her name alone in a new account, numbered 22842; ' A new signature card for this account, bearing ⁴⁹⁵ only Mrs. Tribull’s signature, was filed with the bank. (This account, as it stood until July 8, 1952, is sometimes referred to below as the “second account.”) This transaction was handled by Francis A. Tribull. On July 8, 1952, the second account was changed, in accordance with a form of request bearing that date and signed by Mrs. Tribull, from her name alone to “Anna B. Tribull in trust for self and Francis A. Tribull, joint owners, subject to order of either, the balance at death of either to belong to the survivor.” (This is sometimes referred to below as the “third account.”) This transaction, too, was handled by Francis A. Tribull. A photostatic copy of the bank’s ledger sheet shows that no change was made in the number of the account as a result of the change in favor of Francis A. Tribull.

(The ledger sheet, for some reason which is not explained, reverses the names of the depositors and shows the account as “Francis A. Tribull in trust for self and Anna B. Tribull, joint owners,” etc., but no point is made of this.) No notice of either change in the savings account was given to Mrs. Steinert, who had been a beneficiary under the first account, or, it appears, to any of the other children of Mrs. Tribull until after her death. The decedent also rented a safe deposit box in the vault of the Canton National Bank, and kept securities in it. This box was originally rented by the decedent and her husband in 1929. He predeceased her; and though the date of his death is not shown, it appears to have been prior to June 14, 1951, on which date the old rental agreement was terminated and a new one was entered into.

Under the new lease, the decedent and Francis A. Tribull were the tenants, and access to the box might be had by either of them or the survivor. According to the bank’s records access to the box was had after June 14, 1951, as follows: on July 20, 1951, by the mother only; on July 3, 1952, by the mother and Francis; on July 14, 1952, and on July 18, 1952, by Francis alone. It was stipulated in open court that it ⁴⁹⁶ was impossible for the mother to have visited the bank on July 3, 1952, the bank record to the contrary notwithstanding. The mother entered the hospital on July 1, 1952, at which time her case was diagnosed as one of obstructive jaundice.

On July 9th an abdominal operation was performed, as a result of which it was found that she had cancer of the gall bladder and that cancer involved practically every organ of the upper abdomen and that she was beyond the aid of surgery. She died on July 13,1952. All of the hospital records were introduced in evidence, and the surgeon in charge of the case was examined. Without attempting to review his testimony or the records in any detail, it may be said that the evidence shows, in general, that the patient was given a number of blood transfusions and that she was given sedatives and drugs to relieve pain, but not in sufficient quantities to put her to sleep.

The doctor saw her daily and whenever he saw her she appeared to him to be rational. The nurse’s notes for July 9 showed that at six o’clock that morning, which was a few hours before she was to be operated on, the patient was sitting on the side of her bed singing. That is the only instance of alleged irrational conduct during her hospitalization. There is also testimony by Mrs. Steinert that on'two occasions when she visited her mother at the hospital, her mother was either very drowsy or would fall asleep.

There was testimony that the decedent had been strong minded and domineering in the family. It is not clear just how much she might have changed in these respects at the time of her last illness; but it seems evident that she was a very ill person when she entered the hospital and that her condition grew progressively worse until her death less than two weeks later. Following Mrs. Tribull’s death, Francis A. Tribull went to the bank on July 18, 1952, and prepared an inventory of the securities in his mother’s safe deposit box, all of which were duly turned over to Mr. Hofferbert as executor of Mrs. Tribull’s estate. On July 21, 1952, ⁴⁹⁷ Francis A. Tribull closed the third account by making two withdrawals- — one in the amount of $36.39 to pay the inheritance tax, and the other in the amount of $7,241.78 which was thereupon transferred to a new account in the name of Francis A. Tribull in trust for himself and his wife as joint owners, subject to their joint order, the balance at the death of either to belong to the survivor.

A meeting of Mrs. Tribuí!’s children was held on some date, which unfortunately is not shown, at the office of her executor, who had been her counsel and who had drawn her will, and the will was read. It made no mention of the bank account and the executor knew nothing of it; but one of the children inquired about it and Francis then stated that it had nothing to do with the estate, that his mother had had his name put on the account and that it belonged to him personally. There was a rather lengthy discussion of the matter, which ended with Francis saying, in substance: “Well, if that’s the way you feel about it, I will draw the money out and turn it over to Mr. Hofferbert and have him include it in the estate to be divided among all of you.” A few days later Francis turned over all the securities belonging to his mother to Mr. Hofferbert, and Mr. Hofferbert then asked him about the bank account. Francis replied that he had not had time to draw it out but would do so in the next day or so and would let Mr. Hofferbert know.

Not having heard anything more for several days, the executor telephoned to Francis and was informed by the latter that he had discussed the matter with his attorney, that the money belonged to him and that his attorney told him he did not have to return it to the estate. Mr. Hofferbert’s testimony seems to indicate that this conversation took place on or just before August 8, 1952, and he stated that on that date he wrote to the other residuary legatees advising them of the conversation. His letter to Paul was offered in evidence, but was excluded as being hearsay as against Francis ⁴⁹⁸ and his wife. We think that it should have been admitted for its bearing on the executor’s position.

The executor, in his answer, stated that “the refusal of Francis A. Tribull to turn over the funds in the account in the Canton National Bank to your Respondent was made known to the other residuary legatees under the Will, and none of them with the exception of the Complainant herein was disposed to take any legal action requiring Francis A. Tribull to pay these funds into the estate; that the said Paul A. Tribull stated he would take legal action against his brother Francis A. Tribull, and that he would engage his own attorney to do so.” On the stand the executor testified that he “accepted * * * as final” Francis A. Tribull’s refusal to pay over the fund. I. The Right op the Legatee to Sue. The question of the right of the complainant, a residuary legatee, to maintain this suit was not raised either by demurrer or by answer by any of the defendants. The decree recites that this issue was raised by the Court, and it was one of the grounds upon which the lower court dismissed the bill.

In his oral opinion the Chancellor, after referring to the allegations in the bill that “the executor had neglected and refused to take any further action to recover this bank account for the estate”, said: “In the testimony there is no refusal or neglect on the part of * * * the executor.” He followed this by quoting from the executor’s answer the allegations which we have referred to with regard to reporting to the residuary legatees the refusal of Francis A. Tribull to pay over the fund, the indisposition of any of them, except Paul, to take legal action to require Francis to pay these funds into the estate, and Paul’s expressed intention to sue and to engage his own attorney. The Chancellor then expressed the view that the bill could be brought only by the executor, even if he had refused to sue, and that the residuary legatee’s only remedy was to apply to the Orphans’ Court for an order requiring the executor to sue. ⁴⁹⁹ The executor, in neither his answer nor his testimony, used the words “refuse to sue,” but in accordance with the familiar saying that actions speak louder than words we are unable to agree with the conclusion of the Chancellor that there was no refusal or neglect to sue on the part of the executor. His action, in the light of the facts before him, including his investigation of the bank records pertaining to the account and his apparent acceptance of the lack of demand or desire on the part of the majority of the residuary legatees for action against Francis, was for practical purposes the equivalent of a refusal to sue. There is also a strong inference of acquiescence on his part in Paul’s expressed intention to bring suit himself.

Even if the executor’s inaction did not amount to a refusal to sue, it showed, we think, that a formal demand for suit would have been futile. We see no more reason for requiring that a futile demand for suit be made in a case such as this than for requiring a minority stockholder of a corporation who wishes to bring a derivative suit to make a futile demand upon the Board of Directors to bring a suit on behalf of the corporation. See Booth v. Robinson, 55 Md. 419, 439 ; Eisler v. Eastern States Corp., 182 Md. 329, 333 , 35 A. 2d 118 . Whether or not this suit can be maintained at all by a residuary legatee — even though he is not barred by the absence of any refusal to sue on the part of the executor — is a substantial question.

We have not been referred to, nor have we found, any case decided by this Court which is precisely on all fours with the instant case. Primarily, of course, the administration of a decedent’s estate is committed to the Orphans’ Court. In Wilson v. McCarty, 55 Md. 277, at 280 , it is said: “So long as assets can be found, which properly belong to the estate of the decedent, which have not been brought in and accounted for, the estate is not fully closed * * * If * * * there be assets which he [the executor] has not returned, or assets which can be recovered, which he ⁵⁰⁰ has not recovered, it is not only within the power and jurisdiction of the Orphans’ Court to require the executor to discharge his duty, but it is the plain duty of the court to compel him. * * * Rev. Code, Art. 50, secs. 5, 6, 14, 15.” Marx v. Reinecke, 145 Md. 311, 318-319 , 125 A. 541 , quotes more fully the paragraph of Wilson v. McCarty from which we have quoted. The statutory references in Wilson v. McCarty are to the Revised Code of 1878, and these Sections are now codified in Article 93 of the Code (1951 Ed.) as Sections 254, 265, 266 and 267.

The last three sections deal with concealment of assets, which is not charged here. Section 254 has been amended several times since 1878, chiefly in connection with the estates of persons absent and unheard of for more than seven years. There was, however, an amendment made by Chapter 437 of the Acts of 1931 (which was after the decision in Marx v. Reinecke) which authorized the Orphans’ Court to “pass such orders as in their discretion may be required in the course of the administration of estates for the transfer of personal property, both tangible and intangible, the title to which is not in dispute.” In Talbot Packing Co. v. Wheatley, 172 Md. 365 , 190 A. 833 , this was held to preclude an Orphans’ Court from trying a question of title as between an administrator and a separate claimant. This result, as that case shows, was in accord with the law as previously determined by a number of cases cited in the Talbot Packing Co. case.

Many of the cases which have dealt with the question of jurisdiction as between an equity court and an orphans’ court are not directly in point because they involved questions of the right to proceed in equity by or against executors or administrators. Here, although the executor is a party, he has not invoked the jurisdiction of equity and he is not the real party in interest against whom relief is sought. The claim sought to be asserted is of an equitable nature. It could have been asserted by the executor, had he seen fit to do so; and we may assume (without ⁵⁰¹ deciding) that the Orphans’ Court could have ordered him to bring suit to enforce it.

Proceedings to that end could very easily have produced a preliminary contest between the present complainant and the executor, if the latter undertook to defend his inaction; and it is difficult to see how he could have done so without somewhat disparaging the claim. In Turk v. Grossman, 176 Md. 644 , 6 A. 2d 639 , creditors of a decedent brought a suit in equity to reach some shares of stock which had belonged to the decedent and had been pledged by him and which were alleged to have been acquired by the defendants through fraud and collusion with the sole acting executor. This Court said ( 176 Md. at 669 , 6 A. 2d at 651 ): “A second ground of demurrer is that general unpaid creditors of the testator do not have the right to bring the suit. Normally the executor or administrator as the personal representative of the decedent is the proper party, so far as personalty is concerned, to bring the action at law or suit in equity in matters which relate to the estate.

The general rule is subject, however, to some exceptions and limitations, as where the rights of a legatee, devisee or creditor are substantially affected by peculiar circumstances, as fraud or collusion on the part of the personal representative and the person against whom the suit is brought; and the refusal or inability of the representative to act. Equity in such instances does not permit the general rule to interfere with its paramount function to prevent a fraud and provide a remedy and an actor for its correction.” There is, of course, no charge of fraud or collusion against the executor in the present case. In the companion cases of Noel v. Noel, 173 Md. 147 , 195 A. 322 , 173 Md. 152 , 195 A. 315 , controversies between the widow, who also was the administratrix of her husband’s estate, and the husband’s mother and his sister were involved, and the interests of the widow in her individual and representative capacities were in part antagonistic. The principal suit was one brought ⁵⁰² in equity originally by the widow in her individual capacity alone, in which she later intervened in her representative capacity as a party plaintiff.

Her right to sue was upheld against a demurrer. The holding in the equity case was very