Lindsay v. Kirk

• Decision Date: 02 April 1902
• Citation: 51 A. 960,95 Md. 50
• Parties: LINDSAY v. KIRK et al.
• Court: Maryland Court of Appeals

51 A. 960

95 Md. 50

LINDSAY v. KIRK et al.

Court of Appeals of Maryland

April 2, 1902

Appeal from circuit court of Baltimore city; Albert Ritchie, Judge.

Appeal by Thomas J. Lindsay, surviving executor of the will of Franklin I. Hance, deceased, from an order sustaining exceptions by Florence E. Kirk and others to an auditor's account awarding certain commissions to his testator, as trustee under the will of Samuel Kirk, deceased. Reversed.

Argued before McSHERRY, C.J., and BRISCOE, BOYD, PAGE, PEARCE SCHMUCKER, and JONES, JJ.

George Whitelock and Edward I. Koontz, for appellant.

Washington Bowie, Jr., for appellees.

SCHMUCKER J.

This is an appeal from an order of the circuit court of Baltimore city rejecting the allowance to the appellant, in the right of his testator, of certain trustee's commissions. The material facts of the case, so far as they appear from the record, are as follows: The late Samuel Kirk, by his will gave to his son-in-law, Seth S. Hance, an estate consisting mainly of securities worth about $30,000, in trust for the appellees, who were then infants. By the terms of the will the estate was to be held by the trustee, and the income applied to the support of the appellees until the youngest of them became 21 years of age, when the corpus of the estate was to be divided among them absolutely in equal shares. Seth S. Hance remained trustee until his death, in 1884. His son Franklin I. Hance, succeeded to the trusteeship by appointment by the circuit court, and served until his death in 1891, when John M. Littig was appointed trustee, and continued to act as such until all of the appellees arrived at full age. The present proceeding was instituted on November 5, 1884, after the death of the first trustee. The bill of complaint does not appear in the record, but, as all of the adult defendants appeared and answered by solicitor and a guardian ad litem was appointed for the infant defendants, and answered for them, and the new trustees were successively appointed by orders passed in the case, and accountings were had from time to time of both the principal and income of the estate and changes of investment made under orders of the court, it may be assumed that the trust was being administered under the court's supervision in the case. On November 6, 1890, during the trusteeship of Franklin I. Hance, Auditor's Accounts C of the principal fund and D of the income were filed, and in due course were finally ratified. By Account C the trustee was charged with a cash balance on hand of $187.43 of principal, and by Account D he was credited with an overpayment of income of $314.46, which was the amount of commission allowed him as trustee upon the income embraced in that account, he having applied the whole of the income to the support of the appellees. The next accounts appearing in the record were E1 of the principal fund and E2 of the income. They were filed on April 9, 1894, during Littig's trusteeship, and related to his transactions only, and took no notice of the debit or credit balances shown by Accounts C and D. On May 23, 1896, during Littig's trusteeship, Accounts F1 of the principal and F2 of the income were filed, and in due course were finally ratified. The Principal Account F1 took no notice of the balance of $187.43 shown by Account C to have been in the hands of F.I. Hance, trustee, but the Income Account F2 charged the estate and credited Littig with the $314.46, shown by Account D to have been due to F.I. Hance for overpayment of income by him. On December 13, 1900, the appellees, having all arrived at 21 years of age, filed a petition in the case, setting forth the nature and history of the trust, and asking that the trustee be directed to transfer the corpus of the estate to them discharged of the trust. Accounts of the principal and income were then stated between the trustee and the estate. Only meager extracts from these accounts appear in the record, but those extracts indicate that, after allowing to Littig the usual trustee's commissions for his services, and also the $314.46 credited to him in the last previous income account for the overpayment of the estate by Hance, there was due to him (Littig) $688.38 for overpayment of income. The appellees excepted to this account, claiming that the trustee should have retained the $688.38 overpaid by him out of the income from time to time, instead of applying all the income to their support. The circuit court sustained the exception to the account to the extent of refusing to allow to Littig the $314.46 for overpayments which had been made by the former trustee, Hance; but it overruled the exceptions as to the $371.92 which had been overpaid by Littig himself. The circuit court, in its order upon these exceptions, very properly held that, as the entire estate, both principal and interest, was left to the appellees, and they had received the benefit of the overpayment of interest, it was but equitable that they should make it good out of the...