Yearley v. Cockey

McSherry, J., delivered the opinion of the Court. In eighteen hundred and sixty, Mary A. Cockey died intestate leaving her husband; Thomas B. Cockey, one sister and four brothers, but no children, surviving her. At the time of her death she owned real and personal property. Letters of administration were granted upon her personal estate on April the third, eighteen hundred and sixty-seven to her husband, who, on the ninth of that mouth returned to and filed in the Orphans’ Court of Baltimore County, an inventory of a part of the personal property of his deceased wife.

That inventory embraced the following items: one share of Baltimore City Stock, one redeemable sub-ground rent, and two hundred shares of the capital stock of the Reisterstown Turnpike Company. On the seventeenth of November, eighteen hundred and fifty-nine, Benjamin Horn and wife executed to Mary A. ¹⁷⁶ Cockey a mortgage upon real estate situated in Baltimore City, to secure the payment, in ten years from that date, of a promissory note for four thousand dollars, and the payment of twenty other promissory notes of the like date for the semi-annual interest on the principal sum. After her death this mortgage and these mortgage notes passed into the.-actual possession of her husband, who collected the interest notes as they matured until the time of his death, which occurred in eighteen hundred and sixty-eight before the mortgage fell due. Mr. Cockey made no settlement or distribution of his wife’s estate in the Orphans’ Court, and did nothing further respecting it than to file the inventory already alluded to.

During his life he collected the interest on the shares of Baltimore City Stock, and the dividends on the turnpike stock, hut took no steps to have the certificates transferred to himself, suffering them to remain standing in the name o.f his wife. After his death letters testamentary were granted upon his estate by the Orphans’ Court of Baltimore City to the appellant, Thomas C. Yearley, the executor named in his will. On the seventh of April, eighteen hundred and sixty-nine, Mr. Yearley as executor of Thomas B. Cockey settled an account .in the estate of Mary A. Cockey in the Orphans’ Court of Baltimore County ; and in that account charged his testator, the administrator of Mrs. Cockey with the amount of the inventory previously filed by Mr. Cockey, and after taking credit for sundry small items of- costs, obtained a further credit for the “ rest and residue of decedent’s personal estate retained by this accountant’s testator, as husband and sole heir-at-law of deceased.” Neither this inventory nor this account included the mbrtgage or the mortgage notes held hy Mrs. Cockey at the time of her death. In November eighteen hundred and sixty-nine, Mr. Yearley as executor of Thomas B. Cockey, collected the Horn mortgage, surrendered the mortgage notes paid to him, released the mortgage and carried the amount ¹⁷⁷ thus collected into the personal estate of Thomas B. Cockey, which he shortly thereafter settled and distributed in the Orphans’ Court of Baltimore City, according to his testator’s will to Charles T. Cockey, the legatee thereunder.

Charles T. Cockey since then has received the interest and dividends on the city and the turnpike stocks, though the former still stands in the name of Mary A. Cockey, the latter having been transferred by Mr. Yearley to Charles T. Cockey, along with other stock of the same company which stood in the name of Thomas B. Oockey. The leasehold property was disposed of by Mr. Oockey in his life-time. The matter stood thus, unchallenged and unquestioned by any of the brothers or by the sister of Mary A. Cockey during their lives. But on the second of March, eighteen hundred and eighty-seven, after the death of these brothers and of this sister, and nearly eighteen years after the settlement by Mr. Yearley in the Orphans’ Court of Baltimore County of the account referred to, in the estate of Mary A. Cockey, the appellee, Joshua E. Cockey, who had been appointed on the sixteenth of February in that year, administrator de bonis non of Mary A. Cockey’s estate, presented to the Orphans’ Court of Baltimore County a petition which was followed on the thirtieth of March succeeding by an amended petition, claiming that these stocks and the mortgage notes had never been reduced into possession by Thomas B. Cockey in his life-time, and that they were consequently erroneously included by his executor in his estate; and praying that the account so passed on the seventh of April, eighteen hundred and sixty-nine might be opened, and that Mr. Yearley as executor might be required to deliver to the appellee, the administrator de bonis non, all bonds, notes, accounts and certificates of debt which said deceased administrator, Thomas B. Cockey, may have taken, &c. ¹⁷⁸ To this petition an answer was filed by Mr. Yearley, wherein he avers that the full and exclusive ownership in the property in question was asserted hy Mr. Cockey, and that the distribution of Mrs. Cockey’s personal estate was thoroughly known to and acquiesced in by the parties interested.

Charles T. Cockéy also answered. The Orphans’ Court passed an order granting the prayer of the petition and from that order this appeal has been taken. As the mortgage from Horn to Mrs. Cockey did not mature during the life-time of Mr. Cockey, it was of course impossible for him