Hayman v. Messick

Decision Date10 February 1969
Docket NumberNo. 90,90
Citation252 Md. 384,249 A.2d 695
PartiesMorris W. HAYMAN, Adm'r c. t. a. of the Estate of Caroline Huffington Slocumb v. L. Gale MESSICK.
CourtMaryland Court of Appeals

W. Edgar Porter, Salisbury (Lewis C. Merryman, Baltimore, on the brief), for appellant.

J. Owen Wise, Denton, for appellee.



On 29 July 1967, Caroline Huffington Slocumb, 87 years of age, died domiciled in Caroline County, Maryland. Mrs. Slocumb had executed a holographic will on 1 March 1962, which she apparently had prepared without assistance, since it neither appointed an executor nor disposed of her residuary estate. The will did, however, contain a deivse of property in Florida to 'my cousins, Mr. and Mrs. Gale Messick' and bequests of $1,000 each to Maude Hayman Robinson and Morris Hayman of Salisbury, who were not otherwise identified.

On 31 July, the will was filed with the Register of Wills for Caroline County by Mrs. Messick, who proved custody. Subsequently, the witnesses proved their signatures, and on 26 September Morris W. Hayman filed a petition for a grant of letters cum testamento annexo (c. t. a.). A week later, a similar petition by L. Gale Messick. The Hayman petition identified Mr. Hayman and Maude Hayman Robinson as first cousins and next of kin of the decedent. The Messick petition identified 12 of the decedent's cousins as her next of kin, including Mr. Messick, Mr. Hayman, and Mrs. Robinson. On 3 October 1967, the will was admitted to probate by the Orphans' Court for Caroline County, and letters of administration c. t. a. were granted to Messick, who then gave bond and entered upon his duties.

Hayman appealed to the Circuit Court for Caroline County from the orphans' court's order granting letters to Messick and its refusal to grant letters to him. The appeal was dismissed by a stipulation which recognized that Hayman, as a first cousin and next of kin of the decedent, was properly entitled to the grant of letters. On 27 December 1967, the orphans' court revoked the letters granted to Messick and granted letters de bonis non (d. b. n.) c. t. a. to Hayman.

By this time, however, Messick had given notice to creditors; had filed an inventory of his decedent's personal property, which aggregated some $74,000, and had paid certain administration expenses and the decedent's funeral expenses. On 3 January 1968, on petitions presented by Messick, the orphans' court authorized the payment of funeral expenses of $1,450.00 and allowed commissions of $1,308.22 to Messick and a fee of $750.00 to his counsel for services in connection with the administration. On the same day Messick filed an administration account, distributing the net assets of the estate to Hayman, as administrator d. b. n. c. t. a.

Sometime thereafter, Hayman determined to mount an attack on Messick's administration. For reasons not clear to us, Hayman elected not to file exceptions to Messick's administration account. 2 Sykes, Probate Law and Practice (1956) §§ 869-871 at 14-21. Instead, he filed a petition in the orphans' court on 25 January which recited that since the grant of letters to Messick was erroneous, the appointment was void ab initio; that all of Messick's acts should be deemed a nullity; and that Messick should be required to file a 'statement and account' of the decedent's property and of 'transactions made and carried on.' Another thrust was directed at Hayman's own appointment as administrator d. b. n., the theory being that this was not what he had sought, and that an appointment d. b. n. could not properly follow an appointment which was wholly void. When he court failed to enter any order, Messick filed a second petition on 19 February, asking that an order be passed. When no action was taken on this, and Messick failed to answer, Hayman filed a third petition on 26 February, seeking an order requiring Messick to answer. No order was entered on the third petition, but a hearing was held on 28 March. The transcript shows that at the conclusion of the hearing, Chief Judge Brackett said, 'This Court feels that we are going to let the d. b. n. stand and we are not going to alter anything that we have done up to this time.'

On 22 April 1968, Hayman filed a notice of appeal:

'Please enter an appeal to the Court of Appeals of Maryland from all adverse rulings of the Court on March 28, 1968, on the Petitions of Morris W. Hayman, Administrator C.T.A. of Caroline Huffington Slocumb, deceased, filed herein on January 25, 1968, February 16, 1968, and February 23, 1968.'

Maryland Code (1957, 1968 Repl.Vol.) Art. 5, § 9 provides: 'Any party may appeal to the Court of Appeals from any decree, order, decision or judgment of an orphans' court.' Code (1957, 1964 Repl.Vol.) Art. 93, § 281 provides:

'In all cases of plenary proceedings, * * * where any motion or application to the court shall be made in writing, it shall be the duty of the court to reduce to writing, and sign the order or decree that may be made by them on such motion or application; and the said motion or application to the court and the order or decree thereon shall be filed as a part of the proceedings, and, in case of appeal from the final decree of the orphans' court, be transmitted to the appellate court with the other proceedings, and be subject to the judgment and revision of such appellate court.' (Emphasis added)

Were it not for the italicized language, which would seem to impose upon the court the duty of entering a written order from which an appeal could be taken, we would be inclined to dismiss Hayman's appeal from the 'adverse rulings' of the orphans' court. We have repeatedly held that an appeal will lie only from a judgment absolute at law, but not from a judgment nisi, Merlands Club, Inc. v. Messall, 238 Md. 359, 208 A.2d 687 (1965), and from a written order or decree and not from comments by or the opinion of the court, Ballan v. Ballan, Md., 248 A.2d 871 (No. 33, Sept. Term 1968, filed 9 Jan. 1969); Bell v. Shifflett, 249 Md. 104, 238 A.2d 533 (1968); Kennedy v. Foley, 240 Md. 615, 214 A.2d 815 (1965). The more desirable practice would dictate that orphans' courts, which are courts of special and limited jurisdiction, confined to the letter of their authority, Code, Art. 93, § 287; Crandall v. Crandall, 218 Md. 598, 147 A.2d 754 (1959), act with the same formality. Nevertheless, we shall assume, for the purposes of this opinion, that the orphans' court, at the conclusion of the hearing on 28 March, entered a written order or orders, denying the relief sought in Hayman's petition of 26 February. Compare Watson v. Watson, 58 Md. 442 (1882) where our predecessors accepted a stipulation of counsel as to the signing of an order.

Hayman urges (i) that since Messick's appointment was procured by a misrepresentation of fact, it was void ab initio, and that all of his acts as administrator c. t. a. are invalid; and (ii) that the orphans' court erred when it refused to require Messick 'to file under oath a statement other and broader than the first and final account he filed.'


Code, Art. 93, § 41 provides:

'All acts done by any executor or administrator according to law, before any actual or implied revocation of his letters, shall be valid and effectual, * * *'

Hayman argues, and we think correctly, that the statutory umbrella protects only the personal representative who acts according to law, and not the individual who is guilty of fraud or deceit, citing Watkins v. Barnes, 203 Md. 518, 102 A.2d 295 (1954) and Lutz v. Mahan, 80 Md. 233, 30 A. 645 (1894). As we see it, these cases are clearly distinguishable from the case before us. In Watkins, letters, c. t. a. had been granted to the decedent's first cousin once removed, who represented himself as her next of kin. The grant of letters was revoked on petition of first cousins of the half blood, none of whom had been given notice of the probate or had appeared at or before the time of probate. In Lutz, letters of administration had been granted to a petitioner on a representation, made by another person, that the petitioner was the decedent's only son, when in fact there were two daughters and an older son, to whom no notice had been given. The letlers were revoked, as if the administration had never taken place.

The facts in Watkins and Lutz are in sharp contrast to those before us. Mrs. Slocumb died on 29 July 1967. Her will was filed on 31 July. On 26 September, Hayman filed his petition for letters, identifying himself and Maude Hayman Robinson as first cousins and only surviving next of kin. On 3 October, Messick filed his petition, identifying 12 persons, including himself, as 'cousins' and next of kin of the decedent. In addition to the petitions, the court had before it on 3 October, the day when letters were granted to Messick, a renunciation signed by Mrs. Robinson, relinquishing her right to administer, and Mrs. Solcumb's will, which described Mressick as her 'cousin', but did not identify Hayman or Mrs. Robinson in any way. Entirely absent from these proceedings was the element of 'undue haste' which the Court found in Lutz. It is not surprising, under these circumstances, that the court adopted a minute:

'In the case of CAROLINE HUFFINGTON SLOCUMB in which Morris Hayman and L. Gale Messick each applied for letters of administration c. t. a., the Court accepts as fact that both L. Gale Messick and Morris Hayman anre cousins of CAROLINE HUFFINGTON SLOCUMB. We feel that the deceased was closer to L. Gale Messick because she made her home with him. She named him first in her will. She left him the largest bequest. We could not consider residue of estate as there is no way for us to determine at this point the number of residuary legatees. Therefor, the Court decides that letter of administration c. t. a. be granted to L. Gale Messick, the will of the said CAROLINE HUFFINGTON SLOCUMB having...

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