Lancaster v. Gardiner

• Decision Date: 04 May 1961
• Docket Number: No. 304,304
• Citation: 170 A.2d 181,225 Md. 260
• Parties: Gertrude LANCASTER v. W. Gwynn GARDINER and John C. Hancock, Trustees.
• Court: Maryland Court of Appeals

Page 260

225 Md. 260

170 A.2d 181

Gertrude LANCASTER v. W. Gwynn GARDINER and John C. Hancock, Trustees.

No. 304.

Court of Appeals of Maryland.

May 4, 1961.

Henry St. J. Fitzgerald, Arlington, Va., for appellant.

Edgar A. Wren, Washington, D. C., for appellees.

Before BRUNE, C. J., and PRESCOTT, HORNEY, MARBURY and SYBERT, JJ.

BRUNE, Chief Judge.

The appellees, Substituted Trustees under the will of S. Spearman Lancaster, have moved to dismiss the appeal herein on three grounds: first, that it is not timely as to an enrolled decree; second, that it is from a nonappealable discretionary order; and third, that it is defective as to one order because the appeal therefrom was filed before the order itself was filed. From the voluminous record transmitted to this Court it is evident that this case is merely one chapter in lengthy litigation involving the trust of the residuary estate under the above will. The appellant, Gertrude Lancaster, is one of the beneficiaries of that trust, and has been represented by a number of different counsel in various phases or stages of the proceedings, at least four of whom, Mr. Gilmore, Mr. Rysticken, Mr. Bowen and her present counsel, Mr. Fitzgerald (of the Virginia bar) have represented her successively during the period since July 11, 1959, when the Trustees filed the petition which initiated the proceedings out of which this particular controversy has grown. The appellant filed her answer to the petition on August 17 1959, through Mr. Gilmore and Mr. Carlyle J. Lancaster as her solicitors.

The will of the decedent provided (in the events which happened) that the trust should end twenty years after his death, which occurred on February 4, 1940. Included in the trust estate was the testator's property at Rock Point in Charles County, which consisted of about 195 acres, some of which was waterfront property. The trustees were directed to sell the trust estate at the termination of the trust, but had no power to sell it earlier. They were, however, empowered to lease it, and predecessor trustees entered into a number of leases with varying terms, some of them providing options to the tenants to buy at market prices at the end of the trust, and one giving a right of first refusal; and at least some of the tenants were given the right to remove improvements erected by them. The validity and the exact nature and extent of the rights of various tenants were uncertain and were subject to some dispute.

In anticipation of the sale to be made at the termination of the trust, the appellees filed their petition of July 11, 1959, seeking the instructions of the court with regard to the lands held by the tenants. Before any hearing was held on this petition, and apparently with the informal approval of the court, the trustees entered into negotiations for the settlement of all matters between themselves and the various tenants, subject to the approval of the court. These resulted in most instances in tentative agreements for the sale of the leased properties to the respective tenants thereof at prices based upon appraisals obtained by the Trustees from apparently competent appraisers. A two-day hearing was held in January, 1960, at which the appellant was represented by her then counsel, Mr. Gilmore. At the conclusion of the hearing Judge Gray delivered an oral opinion approving in principle the proposed settlements and conveyances to be made pursuant thereto and directing that appropriate surveys be obtained upon which to base a decree and deeds. Such individual surveys were obtained in February, 1960. Due to some accident or mistake, a form of decree thereafter drafted to carry out Judge Gray's views never reached him and about three months later a duplicate was prepared and submitted to him. This was signed on May 14, 1960 and was filed on May 17th. It will be referred to as the decree of May 17th. This decree approved the sale by the trustees to the respective tenants claiming interests therein of twelve lots and the compromise of claims of others in respect of two lots (for which no acceptable offers of purchase were received) by the payment by the Trustees of $500 as to one lot and of $250 as to the other. With regard to the lots which the Trustees were authorized to sell, the court found that the prices offered represented the current market retail values, and that these values were substantially higher than could be obtained in the event of the sale of the entire property, if that were possible.

Meanwhile, there was controversy over the sale of the balance of the Rock Point property, which greatly exceeded in acreage the lots leased to tenants. The appellant had had a survey made of the entire tract, which she claimed was needed for the successful sale of the large tract and which she wanted the Trustees to pay for. She also wished to purchase or acquire as part of her share of the estate a particular lot. There was a hearing on these matters before Judge Digges on May 14, 1960, at which the appellant was represented by Mr. Rysticken as her counsel. The court expressed approval of the appellant's request that the Trustees purchase the survey, and also expressed approval in principle of the sale of some specific lots at their fair values, one of which was sought by the appellant. Subsequently, the Trustees reported the private sale of several lots, including the sale of one to the appellant; and these sales were finally ratified in August, 1960. No appeal was taken from the order of ratification. These proceedings were quite separate from the settlements with tenants covered by Judge Gray's decree of May 17th. They show, however, a willingness of the appellant to have the Rock Point property sold otherwise than as a single tract.

Upon petitions filed early in June, 1960, some amendments assented to by the Trustees, to the decree of May 17th were requested by tenants and approved by the court. These changes were, of course, within the thirty day period when the court had full revisory power over that decree under Maryland Rule 625.

On June 11, 1960--also within the thirty day period--the appellant, through her then counsel, Mr. Bowen, filed a so called 'Petition for Clarification of Charges.' This sought a redetermination of the purchase price of lots covered by the decree of May 17th on the ground that the prices approved by that decree were not in accord with the appraisals obtained by the Trustees. The Trustees answered on June 24th. Because of the vagueness of the petition they also sought an amplification of it in the nature of a bill of particulars. Mr. Bowen furnished a copy of such a document to the Trustees, but he was discharged by the appellant as her counsel before it was signed and filed with the clerk. The appellant's new and present counsel, on instructions of his client, disavowed this particularization at the hearing on October 11th, which is more fully referred to below.

There had been no order to stay the operation of the decree of May 17th; and so far as we are advised or can discover from the record no request for a stay was made. The decree of May 17th accordingly became enrolled thirty days after its date. Maryland Rule 625; Hancock v. Stull, 199 Md. 434, 437, 86 A.2d 734, and cases therein cited; Riviere v. Quinlan, 210 Md. 76, 122 A.2d 332; Monumental Engineering Co. v. Simon, 221 Md. 548, 158 A.2d 471. Assuming that the 'Petition for Clarification of Charges' amounted to a motion for rehearing, it is clear under the Rule and cases just cited that the filing of the petition did not have the effect of rescinding the decree of May 17th or of suspending its operation. These cases also show that a motion for rehearing does not extend the time for appeal. Accordingly, if the appeal were (as it may well be) really from the decree of May 17th, it would have to be dismissed as not being timely under Maryland Rule 812 a, since not taken until after the expiration of thirty days from its date.

The 'Petition for Clarification of Charges' which, despite some doubt we shall treat as a motion for reargument, operated under Rule 625, to permit revision of the decree, if or to the extent, that the court might deem revision to be proper. The Trustees, after some negotiations with Mr. Fitzgerald and evidently in an effort to bring matters to a conclusion, on September 19, 1960, filed a motion to strike the petition. This motion came up for hearing on October 11, 1960. At that time the appellant was represented by her present counsel and by Mr. Wigginton, of the Maryland bar, and other parties, of whom there were a number, were represented by their respective counsel. Early in these proceedings the Trustees withdrew their motion to strike, and the court then went into a hearing on the merits of the 'Petition for Clarification of Charges', in...