Green v. Green

• Decision Date: 13 January 1944
• Docket Number: 59.
• Parties: GREEN et al. v. GREEN et al.
• Court: Maryland Court of Appeals

35 A.2d 238

182 Md. 571

GREEN et al. v. GREEN et al.

No. 59.

Court of Appeals of Maryland

January 13, 1944

Appeal from Circuit Court for Baltimore County; William H. Lawrence Judge.

Proceedings in the matter of the estates of John Green, deceased, and Emma W. Green, deceased. Petition by Philip W. Green and others for rescission of an order ratifying the auditor's account. A demurrer to the petition was filed by Clarence J Green and others, and from an order sustaining the demurrer and also from the order of ratification, petitioners appeal.

Orders reversed and cause remanded.

James C. L. Anderson, of Towson (Edward P. Swiss, of Baltimore, on the brief), for appellants.

M. William Adelson, of Baltimore (Michael Paul Smith, of Baltimore, on the brief), for appellees.

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

DELAPLAINE Judge.

John Green, of Baltimore County, who died in 1927, executed a will leaving the residue of his estate to his wife, Emma W. Green, in trust to pay taxes, fire insurance premiums and cost of repairs to buildings, and to pay the net income to herself for life, and after her death to divide the corpus among his children. The trust estate consisted of a farm, certain shares of stock and cash. On January 1, 1929, the widow leased the farm to Clarence J. Green, a son of the testator, for an annual rent of $700. She died on October 30, 1939. In 1942 the court assumed jurisdiction of the trust, appointed Walter R. Haile and John T. Tucker successor trustees, and authorized them to sell the farm.

On November 16, 1942, William J. Green, another son, informed the court that he had been named administrator of the life tenant's estate, and that on October 5, 1938, she had recovered a judgment against Clarence J. Green for $1,600 for rent in arrear, and prayed that a sum sufficient to cover the amount of the judgment, interest and costs be deducted from his distributive share in his father's estate. In accordance with that request, the auditor deducted $2,029.70 from the judgment debtor's share and allowed it to the life tenant's estate. To this account Clarence J. Green and three sisters filed exceptions, which were sustained by the court on April 22, 1943. In compliance with the court's order, the auditor on May 12, 1943, filed a second account allowing $1,959.03 to the trustees for the use of the testator's seven children, and $102.67 to the life tenant's estate as interest on the judgment from the date of its rendition on October 5, 1938, to the date of her death. A few days later, however, the auditor advised the court that he believed the account was wrong; and on May 18, after obtaining the court's permission, he filed an alternate account allowing $1,949.23 to the life tenant's estate and $102.67 to the trustees. On May 25 the court, acting upon the request of Haile, one of the trustees, passed an order finally ratifying the account of May 12. On May 26 William J. Green, administrator, filed specific exceptions to the second account of May 12, while specific exceptions were filed by appellees on May 27 to the alternate account of May 18. On July 9 appellants petitioned the court to rescind the order of ratification. Appellees demurred to the petition on the ground that it was filed more than 30 days after the passage of the order. The court sustained the demurrer without leave to amend. This appeal is from the order of ratification and also from the order sustaining the demurrer to the petition to rescind.

The statute provides that final decrees and orders in the nature of final decrees are considered as enrolled from and after the expiration of 30 days from the date of the same. Code art 16, sec. 207. Ordinarly a court of equity cannot revise or revoke a decree after it is enrolled, except upon bill of review for error apparent on the face of the decree or for newly discovered evidence, or upon original bill for fraud. But there are three exceptions to the general rule where the procedure may be by petition: (1) where the case was not heard on its merits; (2) where the decree was entered by mistake or surprise; and (3) where the circumstances satisfy the court, in the exercise of a sound discretion, that the enrollment ought to be discharged and the decree set aside. Bailey v. Bailey, Md., 30 A.2d 249. In the pending case it was alleged by appellants that the final order of ratification was passed upon the request of Haile, attorney for appellees, without the knowledge of his cotrustee. At that time two conflicting accounts were pending in court. The fact that the court gave the auditor permission to state an alternate account indicated that the question was reopened for consideration. The two accounts raised a distinct issue before the court. Both of the trustees as well as all parties in the case had the right to assume that the court would grant a hearing before reaching a final decision. The auditor is a ministerial officer of the court required to take an oath that he will well and faithfully execute the duties of his office without favor, affection, partiality or prejudice. Code, art. 16, sec. 20. He is the calculator and accountant of the court, and when any calculations or statements are required, all the pleadings, exhibits and proofs are referred to him, so that he will be enabled to investigate the cause fully and put it in proper order for the action of the court. It is also clear that, even after a cause has been submitted, the court has the power to allow additional evidence to be taken, although this power is not usually exercised except in cases where, from accident or inadvertence, any omissions or defects of proof have...