Vickers v. Starcher

Johnson, J., delivered the opinion of the Court. The appeal in this case, by Harrison W. Vickers, surviving executor under the last will and testament of Ells-worth C. Bowers, late of Kent County, Maryland, deceased, is from an order of the Orphans’ Court of that county denying his petition to have transmitted certain issues to the Circuit Court for that county for trial. ⁵²⁵ The record discloses that subsequent to the probate of the will, letters testamentary were granted Harrison W. Vickers and W. Bradford Cropper, executors named therein. On April 15, 1937, subsequent to Cropper’s death, a first administration account was filed by the surviving executor and passed by the court. Vickers, the surviving executor, having procured the rescission of the first account and obtained leave to file a new one, on March 1st, 1938, filed what purports to be a “Corrected First Administration Account,” by the terms of which he charged himself with the amount of inventories of real estate and personal property as per appraisals, totaling $13,020.29, after making deductions for certain personalty included therein, appraised at $540, claimed by a sister of the testator, and deductions of $1,094.54, representing money held under certificates of participation in the Third National Bank of Chestertown, Maryland.

There were also certain losses claimed, being the difference between the appraisals of certain parcels of real estate and the amounts for which they sold, totalling $1,531.10, further reducing the amount with which the surviving executor was charged to $11,489.19. However, this latter sum was increased by a gain of $797.79 from sale of the lumber yard and other properties above their appraised values to $12,286.98. The executor also charged himself with certain other items which, according to the account, were collected by himself and his co-executor from August 1st, 1933, to August 20th, 1936, amounting to $13,880.34, which amount was made up of several miscellaneous collections, the largest of which were on account of two life insurance checks, each in the sum of $1,011.22, the remainder consisting of collections for rents, open accounts, notes and mortgages due the estate. The surviving executor likewise charged himself with certain miscellaneous collections made by him subsequent to the death of Cropper, amounting in the aggregate to $3,041.29, which sum included a $1,900 bequest from Rachael A. Parrott’s estate, and bank dividends, payments on open accounts and upon certificates of participa ⁵²⁶ tion. due the estate.

These, added to the other sums with which he had therein charged himself, increased the total amount to $29,208.61. In the “Corrected First Administration Account,” the executor prayed allowances for payments and disbursements, totalling $14,000.40. These allowances were the usual items found in such accounts, such as payment for nursing, auctioneer fees, premium on bond, advertising, funeral expenses, appraisers, medical services, tomb, fees due the register of wills and payments for claims filed against the estate. After their allowance a balance of $15,208.21 was left for distribution.

A better understanding of the questions presented for decision will be gained by reference to certain items contained in the “Corrected First Administration Account.” Of the sums therein, reported as having been collected by Vickers and Cropper, appear one for $750 and another for $230, representing collections made by R. W. Stavely on “open accounts and notes,” while. of those which, according to the account, were collected by the surviving executor, are the following: An item of $34.38 received July 8th, 1937, on “E. C. Bower’s Director’s Note”; another item of $15.63 collected January 4th, 1937, on “Director’s Note” paid by the estate, and another of December 18th, 1936, on a Director’s Note paid by the estate for $297.15. And included among the disbursements, for which allowances were prayed, are: (1) Note and interest of Linda M. Starcher, as per claim filed $498.60; (2) note and interest of Linda M. Starcher, as per claim filed $55.28; (3) note and interest of Carl LeCates, as per claim $145.73; (4) note and interest of Harry A. Smith, as per claim $55.36; (5) note and interest of Walter Francis, as per claim $118.50; (6) an amount of $285 paid William P. Constable and H. W. Vickers as a fee for representing the testator’s estate in caveat proceedings pertaining to Rachael A.'Parrott’s estate; and (7) an item to the First National Bank for director’s note of the testator, amounting to $4,884.72. ⁵²⁷ To the Corrected First Administration Account, exceptions were filed by Linda M. Starcher. For the most part, these related to the allowance of the items previously mentioned, and disputed their correctness. So far as the exceptions related to the amounts with which the surviving executor was charged, the objections were based on the ground that such items were indefinite, while, with regard to the allowances claimed, it was asserted, with reference to one class, that the executors should have paid certain obligations at an earlier date from funds within their hands and stopped interest thereon; that one of the obligations against the estate for which an allowance was asked should not have been paid for the reason that one of the makers was a legatee under the will.

It was also objected that the allowance of $285 paid as a counsel fee for representing the estate in the caveat proceedings concerning the Parrott estate was improper, also that payment of an item for which an allowance was prayed of $4,884.72 in settlement of a director’s note given by testator to the First National Bank was improper because barred by the statute of limitations and upon other grounds. Allowances totalling $15 for sums paid Enna B. Lewis in stating the account were objected to, as was the allowance of $100 claimed by the executor as a loss on certain real estate appraised at $500, but by the corrected account shown to have been sold for only $400. It was also objected that the estate had received no interest upon the money on deposit in bank to the credit of the surviving executor, contrary to the understanding of the exceptant to the effect that such interest would be received. The exceptions were promptly answered by the surviving executor, and if the answer could be sustained by proof, the exceptions would be without merit.

After answering, the surviving executor filed a petition under oath, in which the exceptions and answers were referred to, alleging that said exceptions and answers thereto raised certain disputed issues of fact. The petition con- ⁵²⁸ eluded with a prayer for plenary proceedings under sections 263 and 264 of the Code, Article 93, and asked that such issues be framed and approved by the court and sent to the Circuit Court for Kent County for trial. In the meantime the Orphans’ Court had decided to hold a hearing upon the exceptions and notified the surviving executor, as well as the cashier of the First National Bank and a Mr. Brooks, to appear June 28th, 1938, and produce all vouchers, checks, paper-writings and bank records pertaining to the estate. Oral discussion was had with the court, who were urged to render a decision on the petition for plenary proceedings, but it was suggested that, since no issues had been framed and submitted for their consideration, they were not obliged at that time to render a decision upon the petition.

However, the court extended the time to July 12th within which petitioner’s counsel could prepare and file the form of issues asked for. On June 28th, the surviving executor was called and made written reply to the effect that he had been blind for almost two years and was compelled to rely on his secretary to keep all papers and accounts pertaining to the estate, and the same were voluminous; that without her assistance he could only rely on his memory, and the secretary was then ill and had gone away for an indefinite period. The bank cashier testified as to the balance of funds in the bank to the credit of the estate. On the same date, the executor submitted nine issues to be certified to the Circuit Court for trial.

The first of these related to the sums of money received by the estate from W. R. Stavely, representing collections