Bantz v. Bantz

• Decision Date: 09 January 1880
• Citation: 52 Md. 686
• Parties: GIDEON BANTZ, Executor of Ann M. Bantz v. WILLIAM S. BANTZ, Theodore S. Bantz and Others. William S. Bantz, Theodore S. Bantz and Others v. Gideon Bantz, Executor of Ann M. Bantz.
• Court: Maryland Court of Appeals

52 Md. 686

GIDEON BANTZ, Executor of Ann M. Bantz v. WILLIAM S. BANTZ, Theodore S. Bantz and Others.

William S. Bantz, Theodore S. Bantz and Others v. Gideon Bantz, Executor of Ann M. Bantz.

Court of Appeals of Maryland

January 9, 1880

The cause was argued before BARTOL, C.J., BRENT, MILLER, ALVEY ROBINSON and IRVING, JJ.

John Ritchie, for Gideon Bantz, the executor.

James McSherry and Milton G. Urner, for William S. Bantz, and others.

Irving J., delivered the opinion of the court.

In the autumn of 1873, Mrs. Ann M. Bantz, of Frederick County, died leaving a will, in which her son, Gideon Bantz, was appointed executor. He accepted the trust, and proceeded to administer the estate. He passed three administration accounts, dated respectively on the 15th of December, 1874, the 29th of November, 1876, and the 27th of April, 1878.

At the time of passing the third account, he made distribution of the balance, which his accounts showed to be in his hands among the devisees under the will; but this distribution was not made under the order of the Orphans' Court, and was not made after notice to persons interested as required by the Code. On the 10th of May, 1878, the devisees under the will of Mrs. Bantz, filed a petition in the Orphans' Court, wherein said accounts had been passed, alleging the existence of sundry errors in the executor's accounts, and charging that sundry claims and allowances had been made to the executor, which were not proper charges against the estate, and ought to be stricken from his accounts; and praying for the several accounts to be set aside, and a new account to be stated, in which the items objected to should be disallowed. After answer and proof, the Orphans' Court set aside all the accounts of the executor, and ordered a new account to be stated, wherein some of the items objected to by the petitioners should be excluded, but others should be included and allowed. From this order of the 4th of March, 1879, both parties have appealed, and it is the subject-matter of these cross-appeals, which we are now to consider. The first question for our decision, relates to the right of the petitioners to file their petition, by way of exception to the executor's administration accounts, when they did, and the right of the Orphans' Court to hear and determine the objections of the petitioners, so, and then interposed. The appellant, (the executor,) contends that the special claims, to the striking out and disallowance of which by the court, he excepts, and from which he appeals, had been passed upon by the court, and allowed to him too long, without objection on the part of the petitioners; and he is to be regarded as having paid the claims to himself; and that the petitioners were guilty of fatal laches in the premises. The counsel for the appellants concede that errors should be corrected, and assent to certain corrections ordered by the court; but insist, that the account of the executor, for services rendered the testatrix for nineteen years preceding her death, and the claim for allowance on account of renovating the tomb of his, and the petitioners' grand-parents, cannot now be attacked. We do not think the cases of Donaldson v. Raborg, 28 Md. 34, and Owens v. Collinson, 3 G. & J. 25, sustain this position. Both those cases recognize the accounts as only prima facie right, but liable to be attacked with proof against them; and in cases of great lapse of time, and when the executor was dead, the court held that strong proof would be required to overthrow the accounts. The Orphans' Court is the proper and primary tribunal, (although sometimes a court of equity is invoked,) to determine all such controversies, and this court has repeatedly said, that so long as an estate is open, (which means not finally closed and settled,) the accounts of the executor or administrator, in that court, are subject to revision and correction as to any matter discovered to be in error. Edelin v. Edelin, 11 Md. 415, and Stratton's Case, 46 Md. 551.

The simple passage of a claim against the estate, or the passage and approval of an account retaining for it, does not establish the correctness of either. The most that it accomplishes is to protect the administrator or executor, if he actually pays it without knowledge of its incorrectness. Passage of a claim by the Orphans' Court, does not bind the executor to pay it; he may still resist it, and the claimant is put to his proof. Here, the claim for services is preferred by the executor against the testatrix, with no one to object but the petitioners. He is his own paymaster, and because he has chosen to put it into his accounts, and gotten the ex parte approval of the Orphans' Court to it, it is clear that he ought not, until the estate is wholly closed, to be regarded in the same light, as if, on the faith of the court's approval, he had paid a stranger his claim against the estate; but the persons interested in the estate and its distribution ought to be permitted, in a proper way, and within proper time, to make their objections to the propriety of his claim. We think this application was within proper time. The claim alluded to was only passed by the court three days before the passage and approval of the first administration account.

The inclusion of that claim in the account created the appearance of an over-payment of the estate; but it was only apparent. That over-payment was brought forward in each of the other accounts, as a matter for allowance successively. After the third, a distribution was struck, and then came the application for revision. The third account was passed on the 27th of April, 1878, and the application for revision and to strike out, was made within ten days thereafter. This was certainly a reasonable time within which to seek a correction of the errors and improper charges of the executor. The last account was based on the others, and in fact the claim of the executor, in the form of a charge for over-payment, was actually made in, and allowed by the last account. The distribution was wholly an act of the executor. It does not profess to be made by the court, and after the notice required by the Code. The estate is so far open as to admit the investigation sought by the petitioners. Whether the Orphans' Court ruled correctly, will be considered presently.

We must first dispose of some questions of evidence. It was objected on the part of the executor, that the petitioners were incompetent witnesses to impeach his claim. The Orphans' Court overruled this objection, and we think that decision right.

The petitioners are clearly not excluded as witnesses by the Act of 1864 and supplements, unless they fall within some of the exceptions of the said Act or its supplements, and are thereby excluded. Those exceptions relate to the case of the death of an original party to a contract or cause of action, or to his insanity, or to cases where an executor is a party to the suit, in either of which cases the other party is excluded. The petitioners were certainly in no sense parties to the contract. This proceeding is not for the purpose of enforcing a charge against the executor, as executor, of the estate. It is a proceeding by which an executor is sought to be prevented from retaining for his own claim against the estate; which claim is alleged to be unjust, and not due and owing, by the testatrix. If it were a claim of another person against the executor, these parties would undeniably be competent to testify adversely to the claim.

There is, therefore, no reason why in this case they should not be competent. The executor, as such, and the executor, as creditor of the deceased, must be regarded for the purposes of this decision as different persons.

These witnesses appear against him not as executor, but as creditor of the estate seeking payment, and as if seeking payment from one other than himself, clothed with power to pay. The fact that the executor and the claimant are one and the same person, cannot work an exclusion which would not otherwise exist. The statute never contemplated any such result. The statute contemplated suits or proceedings against an executor for the purpose of enforcing a claim against the estate, not of resisting a claim of the executor, as this case is. There is no ground for applying the rule as one of mutuality, which this court has so often said was the...