Knapp v. Knapp

• Court: Maryland Supreme Court
• Writing for the Court: BOND, C.J.
• Citation: Knapp v. Knapp, 149 Md. 263, 131 A. 329 (Md. 1925)
• Decision Date: 09 December 1925
• Docket Number: 36.
• Parties: KNAPP ET AL. v. KNAPP ET AL.

131 A. 329

149 Md. 263

KNAPP ET AL. v. KNAPP ET AL.

No. 36.

Court of Appeals of Maryland

December 9, 1925

Appeal from Orphans' Court of Baltimore City.

"To be officially reported."

Proceeding between Joseph H. Knapp and others and Mary M. Knapp and others, executors of the last will and testament of John Knapp, deceased. From an order of the orphans' court dismissing exceptions to the executors' account, Joseph H. Knapp and another appeal. Order affirmed.

See also, 131 A. 327.

Argued before BOND, C.J., and PATTISON, URNER, ADKINS, OFFUTT DIGGES, PARKE, and WALSH, JJ.

Walter C. Mylander, of Baltimore (Charles M. Armstrong and Joseph S Knapp, Jr., both of Baltimore, on the brief), for appellants.

Bernard J. Flynn, of Baltimore (Duncan, Schwatka & Flynn, of Baltimore, on the brief), for appellees. BOND, C.J.

A supposed will of John Knapp, deceased, which had been probated, and under which the appellees had been appointed and had qualified, as executors, was afterwards set aside upon a caveat filed by the appellants. The executors thereupon filed an account of their administration pending the controversy over the will, and the appellants filed exceptions to that account. The exceptions were dismissed by the orphans' court, and this appeal is prosecuted from the order of dismissal.

Three objections have been pressed. First, objection is made to an allowance to the executors of $300 to pay for services of counsel in defending a suit filed in the circuit court No. 2 of Baltimore city against them, and against Mary M. Knapp, individually, and the Hopkins Place Savings Bank of Baltimore, in which the complainants (the appellants in this proceeding) sought discovery of assets by Mary M. Knapp, an injunction against permitting assets claimed for the estate to pass into Mary M. Knapp's hands, and for a receivership in the equity court and an accounting there of money and property which belonged to the deceased. The appellants, in resisting the charge to the estate for the executors' counsel in that suit, argue that it lacks the justification which is found in any case for allowing payment from a common fund for services of counsel to one only of the persons interested but on behalf of all interested, because here the defense was antagonistic to the complainants, and not in representation of them. Title Guarantee & Trust Co. v. Burdette, 104 Md. 666, 671, 65 A. 341. But the orphans' court was not dealing with such a case, and no such justification was needed. The executors here, in the course of their administration after the probate of the will, and in their representative capacity, were required to answer and defend the equity suit, and they are entitled to have their expenses in doing it met by the estate, on the same principle as that upon which executors are entitled to an allowance of counsel fees for resisting a caveat after probate of the will. Decker v. Fahrenholtz, 107 Md. 515, 68 A. 1048, 72 A. 339. We think the allowance was valid.

A second objection is one made to the statement of the amount collected in rents of houses which had been owned by the deceased. From evidence received at the hearing on the exceptions, it appeared that some rents collected were omitted from the account. Omissions aggregating $71 are pointed out in argument. The executors kept their accounts only on loose memoranda, and there is testimony that rents omitted from the account were nevertheless deposited in bank. The orphans' court, in an opinion filed in the case, found that the executors had properly charged themselves with rentals collected up to the month of December, 1924, and ordered that they file an amended account to include rentals collected later. How the amounts collected before December, 1924, are now properly charged is not clear from the record. But we think it sufficient for us to say that we do not find in this objection to the statement of rents ground for reversing the order of the orphans' court and remanding the case. The discrepancy so far pointed out is small, and apparently a consequence of loose bookkeeping, and the orphans' court will, doubtless, have all discrepancies made up before the accounting is concluded.

The remaining, or third, objection to the account, is the important one in the case. An allowance of $75 to Mary M. Knapp as widow of the deceased, under article 93, § 318, of the Code of Public General Laws, is contested on the ground that she was not validly married to the deceased. Testimony taken on this objection showed that a license in due form was procured, and that the marriage was celebrated by a certain Leland W. Windsor, who signed the return certificate as pastor of the Cummins Memorial Reformed Episcopal Church. The marriage was celebrated at Windsor's home. It appears that Windsor, who was during the week a carpenter and builder, had received authority to act as a minister of the gospel, and to celebrate marriages, from certain elders of an organization called an Apostolic Church, of Philadelphia. The organization was a comparatively informal association of men who contemplated preaching in missions rather than in churches, and it had disbanded upon the death of its leader five years before the celebration of the marriage now being considered. The elders of the organization issued certificates of ordination, as they were called, and Windsor held one of these. It declared him authorized to celebrate marriages. Because of lack of regular ministers, he was invited to preach in two churches in Baltimore, first in a church of the United Brethren, and then in the Cummins Memorial Reformed Episcopal Church. The officials of this latter church invited him to preach in their pulpit, and he did so for over a year and a half. He was called the pastor of the church, and the congregation understood that he was a minister. The defendant, Mary M. Knapp, was a member of the congregation. Windsor testifies that he believed himself authorized to perform the marriage ceremony, and that he did actually marry five couples during the time he occupied this pulpit; the defendant Mary M. Knapp and John Knapp having been the last of the five. The parties to this last marriage, at least, assumed that Windsor was qualified to perform the ceremony, believed themselves duly married, lived together as husband and wife, and were recognized as such. On so much of the facts there is no substantial dispute. But the bishop of the Reformed Episcopal Church testifies that Windsor was not accepted by him or by the church officials as the regular pastor of the Cummins Memorial Church, and that his connection with the church did not, in fact, authorize him to celebrate marriages or perform any other ceremony; and it was denied that his connection with the Apostolic Church and his certificate from elders of that church constituted him an ordained minister such as would be authorized to celebrate marriages under the laws of Maryland.

Much testimony was taken in an effort to fix exactly the status of Windsor, and counsel have argued fully the meaning and effect...