Bowers v. Cook

• Decision Date: 13 January 1915
• Docket Number: 28.
• Parties: BOWERS v. COOK et al.
• Court: Maryland Court of Appeals

93 A. 162

124 Md. 567

BOWERS v. COOK et al.

No. 28.

Court of Appeals of Maryland

January 13, 1915

Appeals from Orphans' Court, Baltimore County.

"To be officially reported."

Proceedings by John H. Cook and Samuel M. Lucas against Georgeanna Bowers, administratrix, c. t. a. From an order revoking letters of administration, defendant appeals. Reversed, and petition dismissed.

Argued before BOYD, C.J., and BRISCOE, BURKE, THOMAS, URNER, and CONSTABLE, JJ.

Linwood L. Clark, of Baltimore, for appellant.

T Scott Offutt, of Towson, for appellees.

CONSTABLE J.

This is an appeal from an order of the orphans' court of Baltimore county, revoking letters of administration c. t. a heretofore granted to the appellant and issuing new letters to the appellees. The proceedings were instituted by the appellees filing a petition, alleging that William T. Bowers died, leaving a last will and testament, in which the appellees, who were sons-in-law of the decedent, were named as executors, but that they were not aware of their right to administer until after letters of administration c. t. a. had been issued to the widow, the appellant herein; and further alleged that the administrator had failed to account for the property of the estate, or to discharge other duties of her office. Testimony was taken upon the issues formed by the petition and the answer thereto, and this appeal taken from the order thereupon passed.

It appears that William T. Bowers died on September 14, 1913 and that his will was probated on September 18, 1913, and that on said last date his widow applied for, and had granted to her, letters of administration c. t. a. The will did not expressly nominate any one as executor by the use of the word executor, but it is the claim of the appellees that by the terms of the will they were designated to act as executors and therefore were entitled, above all others, to letters as such. And this contention is the first question arising on this appeal.

The will provided that the net income of the estate should be paid to the widow for life, and at her death the estate should be divided among his children or their heirs. The only language of the will, with which we are concerned is found in two following clauses:

"(1) I desire my trustees (hereinafter named) to pay my funeral expenses, all my just debts, and to erect a modest tomb over my remains.

(2) I appoint as my trustees, to take charge of my estate upon my decease, my two sons-in-law, John H. Cook and Samuel M. Lucas."0

It is well established that, for the designation of one as an executor, it is not necessary to use the word executor, but any words which substantially confer upon a person the rights, powers, and duties of an executor amount to an appointment under the will, and any person thus clothed with the essential functions of the office is said to be an executor under the will according to the tenor. 1 Williams' Law of Executors and Administrators, 239; Schouler on Wills and Administration, 328; and innumerable state decisions. The language of these two clauses clearly shows, in imposing upon the trustees duties which they could not perform as trustees, but only as executors, that they were to be the executors of the estate as well as trustees. We cannot follow the argument of the appellant that, because a trust estate was created, the appointment of the trustees was thereby accounted for, and although they were given powers ordinarily exercised by executors, nevertheless the court had a right to appoint the widow administrator c. t. a.; no executor having been expressly nominated in the will. The powers and duties of executors and trustees are distinct and separate. Different parties entirely may be named for each duty. And, if competent, each has a priority to the right. If these appellees were designated executors, by the terms of the will, as we have said they were, the fact that they were also expressly named as trustees would give no court, for that reason, any right to deprive them of what this court, in many decisions, has denominated as a valuable right. We are of the opinion, therefore, that the granting of letters to the appellant on the day of the probate of the will was an inadvertence, and therefore the letters were improvidently granted.

Is there any reason why the letters should not have been revoked, and letters issued to the appellees on this application, is the next question to be considered.

By section 43 of article 93 of the Code (Bagby's) it is provided that where there is only one executor named in a will, and he shall have been present at the authentication or probate of the will, and shall not within 30 days thereafter file a bond, letters of administration c. t. a. may be granted to such person as would be entitled in case of intestacy, unless the executor named shall have procured an attested copy of the will for the purpose of taking out letters in some county other than where the will was probated, and has not obtained letters in such other county within 70 days, then, in that event, the court may grant letters c. t. a. as aforesaid.

Section 44 of the same article provides for a summons to issue against an executor who is within the state, but who was not present at the probate, notifying him to appear and file bond, and making same returnable not less than 20 days nor more than 60, with 20 days thereafter to file the bond, with a provision for two non ests and a failure to appear, or appearing not filing a bond within 20 days after the return day; with a proviso that in case of sickness, accident, or reasonable excuse the court may allow a further time after such return or appearance for filing a bond, but not exceeding 40 days.

By section 45 of the same article, it is provided, in case the executor has been without the state at the time of the probate and shall not return within six months thereafter and file a bond, letters of administration c. t. a. may be granted as provided in section 43.

Section 46 provides that when there shall be more than one executor the same proceedings shall be taken as to each as if he were the only one named.

The facts as disclosed by the testimony in the record show that on the day of the burial of Mr. Bowers all the family, including the two appellees, and an attorney, who had been counsel for Mr. Bowers in his lifetime and who was retained by the widow, gathered at the home to hear the will read. The will was produced by a brother of the deceased, and was read to the others by the attorney. After the reading, the attorney gave it as his opinion that no executor had been designated, and therefore the widow was entitled to letters, and announced then that the widow was going to apply for letters. The material part of what took place can well be put here as testified to by the appellees. Mr. Lucas testified as follows:

"Q. In what capacity was Mr. Clark present on that occassion? A. As attorney for Mrs. Bowers. Q. And to whom did he give that advice? A. To every one present, all that were there."

And on cross-examination he testified:

"Q. You have also said that I advised all the folks who were there. Now, do you remember this, that after I was asked to read this will and did so--and the matter of the failure to specifically appoint an executor was discussed--do you recall that I, after giving my opinion in the matter, which is still my opinion, distinctly told the folks that I wanted to be regarded, distinctly, as attorney for Mrs. Bowers, and I was speaking for Mrs. Bowers, and that if any one there had any idea that they had rights of any kind in the matter, that they should get individual counsel. Do you recall that? A. I think you said that."

Mr. John H. Cook testified:

"Q. State what took place. A. Ross M. Bowers handed the will to Linwood Clark, attorney for Mrs. Bowers, to read it. A discussion arose as to whether the trustees were to have full charge

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