Lemmon v. Hall

• Decision Date: 09 October 1863
• Citation: 20 Md. 168
• Parties: JOSIAS H. LEMMON, EXC'R OF JOHN C. C. HALL, v. SOPHIA S. HALL, ADM'X d. b. n. OF A. J. HALL.
• Court: Maryland Court of Appeals

20 Md. 168

JOSIAS H. LEMMON, EXC'R OF JOHN C. C. HALL, v. SOPHIA S. HALL, ADM'X d. b. n. OF A. J. HALL.

Court of Appeals of Maryland.

October 9, 1863

APPEAL from an order of the Register of Wills of Harford County:

This is an appeal taken from an order passed on the 10th of November 1859, by the Register of Wills of Harford county, in the recess of the Orphans' Court of said county. The facts of the case, as well as the arguments of counsel thereon, are sufficiently stated in the opinion of this Court.

The cause was argued before BOWIE, C. J., and BARTOL GOLDSBOROUGH and COCHRAN, J. O. Scott, for the appellant:

H. W Archer, for the appellee:

OPINION

BOWIE C. J.

John C C. Hall, late of Harford county, testator of the appellant, administered on the personal estate of A. J. Hall of said county, the intestate of the appellee. Mr. Hall passed two accounts, the last of which dated the 5th Jan'y 1855, showed a balance of $363.43, in his hands as Adm'r of A. J. Hall. Soon after, upon Mr. Hall's death, the appellant became his executor, and the appellee was appointed Adm'x d. b. n. of A. J. Hall.

On the 15th October 1858, during the recess of the Orphans' Court of Harford County, the appellee filed her petition alleging the above facts and praying an order requiring the appellant as executor of Jno. C. C. Hall, to deliver over to the appellee, as Adm'x d. b. n. of A. J. Hall, all the bonds, notes, & c., which said John C. C. Hall as Adm'r of said Avarilla, had at the time of his death, and to pay over all money in the hands of said Adm'r as such.

The appellant's answer admits there remained a balance of $363.43 in his testator's hands, but insists, " that the said balance was retained by the authority of the Orphans' Court to meet, amongst other matters, costs and expenses to which the said Adm'r was and might be subjected in a cause still pending in the Circuit Court for Harford county as a Court of Equity, between Josias H. Lemmon, as complainant, and Jno. C. C. Hall, Adm'r of A. J. Hall and others, defendants." The appellee by her replication puts in issue the retainer of said sum of money by order of the Orphans' Court, and denies the existence or pendency of any such suit.

The case being submitted without further testimony, the Register of Wills of Harford county, in the recess of the Orphans' Court, as authorized by law, passed an order directing the appellant to pass an account showing the true condition of the said John C. C. Hall's administration of said A. J. Hall's estate. Which account having been passed by the appellant showing a balance of $334.43, and the parties having appeared by their counsel and being heard, the Register, in the recess of the Court, on the 10th November 1859, ordered the appellant as executor of Jno. C. C. Hall, to pay to the appellee, Adm'x d. b. n. of A. J. Hall, the sum of $334.34, " it being the balance of his account passed in the Orphans' Court on the 22nd September 1859, as executor of John C. C. Hall, who was Adm'r of said Avarilla J. Hall, deceased." From which order this appeal is taken.

The appellant insists, the order passed by the Register was erroneous on two grounds:

1st. " Because the balance was retained to pay expenses of a suit in chancery, with the assent of the Orphans' Court."

2nd. " Because the said J. C. C. Hall had fully accounted for all the estate and received commissions on the whole, and distributed the greater part among five distributees, he being one of them himself." No testimony having been taken by either party, the accounts passed by the deceased administrator (which by agreement are made a part of the record) are the only source to which this Court can refer to ascertain the facts in issue. These do not furnish any evidence of the retainer relied upon by the appellant.

The second account of Hall shows a balance in the hands of the administrator of $363.43 without any appropriation or explanation. This Court cannot speculate upon or surmise the purposes of its non-distribution. The 2nd reason does not take the case out of the provision of the Act of 1820, ch 174, sec. 3, which, expressly authorises and requires the...