Barton v. Tabler

• Decision Date: 03 May 1944
• Docket Number: 6.
• Citation: 37 A.2d 266,183 Md. 227
• Parties: BARTON v. TABLER et al.
• Court: Maryland Court of Appeals

37 A.2d 266

183 Md. 227

BARTON v. TABLER et al.

No. 6.

Court of Appeals of Maryland

May 3, 1944

Appeal from Orphans' Court, Queen Anne's County; H. F Callahan, Chief Judge, and C. Tilghman Bishop and Henry C Bowen, Judges.

Proceeding upon application for letters of administration upon the estate of South Williams Chamberlaine, deceased, made by W Edward Barton, and joint application for such letters of administration made by W. Ray Tabler and James B. Diggs. From an order granting letters of administration to W. Ray Tabler and James B. Diggs, W. Edward Barton appeals, and the administrators appointed move to dismiss the appeal.

Appeal dismissed.

Richard T. Earle, of Centreville, for appellant.

J. B. Randol Carroll, of Baltimore (James B. Diggs and Brown & Brune, all of Baltimore, and William McK. Gibson, of Centreville, on the brief), for appellees.

Before MARBURY, C.J., and DELAPLAINE, COLLINS, GRASON, MELVIN, and BAILEY, JJ.

MARBURY, Chief Judge.

Appellant claiming to be the largest creditor of South Williams Chamberlaine, late of Queen Anne's County, intestate, appeals from an order of the Orphans' Court of that County, passed on December 28, 1943, appointing the appellees administrators of her estate, and refusing the application of appellant for such appointment. The record shows that on the above mentioned date the brother of the deceased renounced his right of administration and requested the appointment of the appellee, James B. Diggs. A niece and a nephew renounced their right and requested the appointment of the appellee, W. Ray Tabler. Diggs and Tabler then made joint application for letters of administration. The court heard argument, and the appellant and W. Ray Tabler were sworn as witnesses, and testified. A check signed by W. Ray Tabler, which was stated to have been previously tendered to the appellant, was retendered to him in full payment of his claim against the estate, but he refused to accept it. The court then denied the appellant's application, and granted letters to the appellees, who, themselves, had no interest in the estate. An appeal was noted by the appellant and subsequently withdrawn. A motion was then filed by him for permission to have the witnesses before the court with a stenographer, so that the testimony previously given by them, might be again given and reduced to writing as a part of the record in this case. This was refused. The appeal was thereupon refiled, and the case is now before us on this record.

The appellees move to dismiss the appeal because the order was passed on summary proceedings and on testimony, and the appellant did not give notice of intention and request the testimony of the witnesses to be reduced to writing as required by Article 5, Section 65, of Flack's Annotated Code of Maryland. Subsequent to the filing of this motion, the appellant filed here a petition to introduce into evidence and to have as part of the record of the case, certain proceedings in the Orphans' Court of December 7, 1943, three weeks prior to the date of the order appealed from. He attaches to his petition copies of the record of these proceedings.

Nothing can, of course, be offered in evidence in this court, but omitted portions of a record may be added by agreement if the court thinks they are pertinent and should be brought up by issuance of a writ of diminution. Armstrong v. Hagerstown, 32 Md. 54. Consent is not given in this case, but the appellees through their counsel agree that if we think the proceedings of December 7, 1943, properly belong in the record, we may consider them without the necessity of issuing the writ. We have accordingly examined these proceedings for the purpose of determining whether they should be in the record. They show that on December 7, 1943, there appeared before the Orphans' Court, attorneys representing respectively the brother, Mr. Tabler, and Barton Brothers, the three applicants for letters. The court, after listening to argument, agreed to grant letters to the appellees, upon the presentation of the renunciations, which were later presented on December 28th, and the petition by the appellees for letters, which was also presented on December 28th, and a corporate bond to be executed by the appellees and approved by the court. While these proceedings indicate a decision by the court, that decision was not then made effective by any order, nor was the appointment of administrators made on that date. When the final decision was made on December 28th, it was in accordance with what had been agreed upon on December 7th, but as we have heretofore stated, it was made after argument and testimony and the tender of a check. It appears, therefore, that the proceedings of December 7th are not a necessary part of the record in this case, and they will not be further considered.

The intestate left surviving her a brother, who was a resident of Queen Anne's County, Maryland, and three nieces and three nephews, who were all non-residents of the state. Barton Brothers were undertakers who had charge of the funeral of the intestate, the bill for which was $542.15. W. Marvin Barton, who was one of the partners, assigned his interest in the indebtedness to the appellant, who was the other partner. The appellant then applied for letters, as the largest creditor. The death of the intestate occurred on May 18, 1943, so that a period of over six months had elapsed at the time the applications for letters were made. The appellant claims the right to letters under the authority of Section 31 of Article 93 of Flack's Annotated Code of Public General Laws, which provides that if there are no relatives, administration shall be granted to the largest creditor applying for the same. The undertaker, or one standing in his place, qualifies as a creditor under the decisions fo this court (Lentz v. Pilert, 60 Md. 296, 45 Am.Rep. 732), and it has been held that upon the failure of those...