Wheatley v. Fleischmann

Prescott, J., delivered the opinion of the Court. On March 6, 1947, the appellant, James B. Wheatley, was granted letters testamentary in the estate of Carroll Stepp, deceased. On March 6, 1956, nine years later, the letters were revoked and the appellant-executor removed for cause by the Orphans’ Court of Baltimore County. From this decision of the Orphans’ Court, the executor appealed, under the provisions of Article 5, section 69 of the Code (1951), to the Circuit Court for Baltimore County, and, after extensive testimony had been taken on the trial de novo as provided by the statute, the Circuit Court affirmed the action of the Orphans’ Court.

The executor appeals from this action by the Circuit Court. On March 1, 1947, Carroll Stepp died leaving a last will and testament which appointed the appellant executor of his estate. The will was probated on March 6, 1947, and letters testamentary were issued to the appellant on that date. For the purposes of this opinion, the provisions of the will need not be set forth in detail.

It will suffice to say that he left both real and personal property; and the will directed the executor to make sale of the real estate, and provided for the distribution of the proceeds. Without authority from the Orphans’ Court and contrary to the instructions in the will to sell the property and divide the proceeds, the appellant rented out a beer tavern and ¹⁶¹ other real estate owned by the deceased. He and his son collected the rents from these properties, the son receiving 10% of those collected by him. He, also without the authority of the court, made substantial expenditures for improvements on the properties.

He kept no records, but relied entirely on the meagre records made by his son with reference to receipts from rentals. What money came into the estate, he put in his pockets; whenever debts had to be paid, the money was taken from that source. He opened no bank account, and testified, if any of the estate’s money were deposited by him in the bank, it went into his personal account and was commingled with his own funds. The record discloses that the appellant seemed to regard the estate as his personal enterprise, and he, apparently, was under the impression that no one had the right to call upon him as a fiduciary to account for his receipts and disbursements.

When the appellant failed to account within the time required by law, the court, on several occasions, granted him extensions of time. However, it became obvious that he was not taking the extensions seriously, and, on May 9, 1949, he was cited by the court and ordered to state an account and close the estate. About this time, his counsel petitioned the court to relieve him (the counsel) of any association with or responsibility for the estate, because “his (the executor’s) acts of commission and omission have been against or without the advice or consent of your petitioner.” This petition was granted. The executor was again cited by the court on September 28, 1949, and ordered to state an account and close the estate.

We do not deem it necessary to relate all of the details of the appellant’s conduct that followed. He failed to file an account, and continued on the same course as stated above. In 1952, he sold most, if not all, of the real estate at public auction. When this case was argued here, the son of the executor had purchased every parcel of real estate that could be sold by the estate.

On April 20, 1955, eight years after his appointment, the executor still had not filed his first account, so the court again cited him. On May 2, 1955, he filed his first account, in which he charged himself with ¹⁶² $29,816.82 in assets. The court refused its approval of this account, and on May 31, 1955, he filed another “first” account in which he stated the assets as $40,917.82. Both of these accounts, however, only covered a period ending in September, 1951.

He was finally cited on February 9, 1956, and ordered to close the estate by filing his account on or before March 1, 1956. He failed to file the account, nor did he file an answer of any kind to the citation, stating why such account was not filed by March 1. On March 1, 1956, the appellant and counsel 'appeared before the court, and stated they were not prepared to file the account, but attempted orally to give as an excuse the fact that there had been a dispute over the payment of certain taxes which had not been settled. The court informed them the account would have to be filed that day.

On March 6, 1956, the court passed an order revoking the appellant’s letters testamentary, and, from this order, the appellant appealed to the Circuit Court, where, in accordance with the statute, a full and complete trial was had de novo, and the order of the Orphans’ Court affirmed. I The appellant claims that he was improperly removed as executor by the court. There can be no doubt that the Orphans’ Court, upon a proper showing of neglect, incompetence or persistent disobedience of the court’s lawful orders, may revoke an executor’s letters testamentary and appoint another personal representative of the estate. Article 93 (Code 1957), sections 259, 277, 285; Jones v. Jones, 41 Md. 354, 360 ; Carey v. Reed, 82 Md. 383, 394 , 33 A. 633 ; Tsaracklis v. Characklis, 176 Md. 28, 34 , 3 A. 2d 725 ; Haas v. Reimers, 177 Md. 567, 571 , 10 A. 2d 705 .

The right to administer, however, is a valuable one; consequently, an executor or administrator will not be removed except for legal causes, and after citation and an opportunity to be heard, Fulford v. Fulford, 153 Md. 81 , 137 A. 487 . In Maryland, the trust confided to an executor