Tsaracklis v. Characklis

Bond, C. J., delivered the opinion of the Court. Parents resident in Greece of a decedent resident in Maryland have filed petitions, in the administration proceedings on the son’s estate, to remedy an alleged waste or spoliation of the assets by another son, acting as administrator. They appeal from a dismissal of one petition for an order to open the grave of the decedent to test charges for burial, especially a charge for a steel vault, which, it has been reported to them, was not in fact used; and appeal from, a single order of the Orphan’s Court on two petitions, one to require the administrator ³¹ to appear and in a plenary proceeding justify specified payments shown on his administration accounts, and the other to revoke his letters of administration and to require a new bond sufficient to cover his liability for additional assets discovered after the letters had been issued. The order on these latter petitions reduced the allowance for one claim, ordered that a counsel fee charged be paid out of the administrator’s commissions, and dismissed the petition so far as it prayed a revocation of the letters.

There is no important dispute of fact, other than that concerning the materials supplied for the burial. Victor Characklis died without issue on February 3rd, 1937. He had kept a small restaurant in Annapolis, and in his lifetime was generally regarded as poor; and after his death the administration proceeded on an assumption that his estate would amount to only $502.50. Payment of the expenses of medical and hospital care, and other debts, was at first, for want of apparent assets, undertaken by the surviving brother, and debts of the decedent’s lifetime were settled for half their amounts.

The purchase and equipment of a large cemetery lot was undertaken by the brother and an uncle, Steve Foundas. But the discovery in the same month, on or about February 23rd, 1937, of a savings account of the decedent’s, containing $6026.37, led the administrator and the uncle to turn to the estate for the payment not only of the decedent’s debts and burial expenses, but of outlays for relatives as well. And so lavish were the outlays that the administrator’s first account showed deductions from the total of $6528.87, which would leave $651.31 for distribution to the parents. The undertaker’s charges shown amounted to $830.50, and the expense had been incurred without an order of court.

Code, art. 93, sec. 5. Obviously, the amount was excessive by ordinary standards, and placed a heavy burden of proof on the undertaker and the administrator. And on behalf of the parents it is alleged that when a foundation was laid for a memorial stone over the grave ³² only a wooden enclosure was found, although allowance was claimed in the administrator’s account for the cost of a steel vault. But whatever the fact may be, this court agrees with the Orphans’ Court that it lacks authority in law to order the grave opened for inspection.

That court is one of specified powers, and this power is not within those specified. Code, art. 93, sec. 271; Baldwin v. Hopkins, 171 Md. 97, 100 , 187 A. 884 . The appellants urge that it is a power necessarily included in that to examine administration accounts and to order their correction. Code, art. 93, sec. 245; Dalrymple v. Gamble, 68 Md. 156, 161 , 11 A. 718 .

But a power to order investigations to be made out of court to discover facts has generally been regarded as extraordinary, and not within the judicial functions. The fact that statutory authority has been necessary for the exercise of a similar power by common law courts illustrates this judicial limitation. Code, art. 75, sec. 104; Arnold v. Green, 95 Md. 217 , 52 A. 673 . It cannot be implied in the general powers of the orphans’ courts.

But if those courts had the power, the order refusing the inspection would not be a final order; it would be interlocutory merely, and could not be reviewed on appeal until after final determination of any contest on the undertaker’s bill. Magraw v. Munnikhuysen, 35 Md. 291 ; Hill v. Pinder, 150 Md. 397, 409 , 133 A. 134 . The first appeal must be dismissed. Maladministration in several respects is alleged as ground for revocation of the letters of administration, and, as stated, many of the facts on which the charges are made are not in dispute.

The administrator, although, as early as February 23rd, 1937, he had in his hands, money belonging to the decedent’s creditors amply sufficient to pay them in full, continued making compromise settlements with them through the year, paying in. all only $390.85 in settlement of $811.70 in debts. No cash inventory showing the existence of the bank account was filed meanwhile, or until January 26th, 1938. Code, art; 93, sec. 223. The remaining portions of the debts were subsequently paid, when exceptions were filed to the ³³ first administration account.

Without any order of court for it, a total of §2138.50 out of the §6528.87 was paid for the burial. In addition to payment of the undertaker’s bill of §830.50, the assets were used to pay bills incurred by the uncle, Foundas, including §345 for a cemetery lot, §300 for a stone wall surrounding it, §140 for chains around the lot, and §350 for a monument. Foundas appears to have incurred most, at least, of these charges, expecting to pay them himself. The deed for the lot conveyed it to him, and in the administrator’s first account the amounts are listed as to be repaid to him.

No vouchers were produced for some of the large items. The lot was sufficient in size for thirty graves, and the stone coping surrounding it is marked, “Foundas Brothers—Characklis Brothers.” The decedent’s grave occupies a corner.