Morgan v. Dietrich

• Decision Date: 18 December 1940
• Docket Number: 65.
• Citation: Morgan v. Dietrich, 179 Md. 199, 16 A.2d 916 (Md. 1940)
• Parties: MORGAN et al. v. DIETRICH.
• Court: Maryland Supreme Court

16 A.2d 916

179 Md. 199

MORGAN et al. v. DIETRICH.

No. 65.

Court of Appeals of Maryland

December 18, 1940

Appeal from Circuit Court of Baltimore City; Eugene O'Dunne Judge.

Bill in equity by Shirley C. Morgan and another, executors of and trustees under the last will and testament of Mary D. Walsh deceased, against E. Alexander Dietrich, administrator of the estate of James E. Walsh, deceased, to restrain further efforts by the administrator to probate an instrument as an alleged third codicil to the will of Mary D. Walsh and for other relief. From an order sustaining demurrer to the bill of complaint and dismissing it, the plaintiffs appeal.

Affirmed.

Randolph Barton, Jr., of Baltimore (J. Irvin McCourt of Baltimore, on the brief), for appellants.

William L. All, of Baltimore (Robert H. Archer, of Baltimore, on the brief), for appellee.

Argued before BOND, C.J., and PARKE, SLOAN, MITCHELL, JOHNSON, and DELAPLAINE, JJ.

JOHNSON Judge.

Appellants filed their bill of complaint in the Circuit Court for Baltimore City against the administrator of the estate of James E. Walsh, deceased. In that bill the Court was asked (1) to declare the effect of an agreement executed October 21, 1937, by Walsh upon an order from his mother, Mary D Walsh, dated July 27, 1937, offered by the administrator of James E. Walsh for probate in the Orphans' Court for Harford County as an alleged third codicil to the will of Mary D. Walsh; (2) for an injunction against the administrator of James E. Walsh to restrain further efforts on his part to probate said paper writing as a third codicil to the last will and testament of Mary D. Walsh, deceased; (3) to stay further proceedings in regard to the probate of the alleged codicil in the Orphans' Court for Harford County pending the decision sought in the Equity Court of Baltimore City. The administrator of the estate of James E. Walsh demurred to the bill of complaint, and the present appeal is from an order of the Chancellor sustaining the demurrer and dismissing the bill.

This is the second time this cause has been before us. The first appeal was that of Morgan et al. v. Dietrich, 178 Md. 66, 12 A.2d 199. At that time the order from Mary D. Walsh to Frank B. Cahn & Company dated July 27, 1937, directing them to transfer from her account to the account of her son, James, $40,000 by selling such securities as Cahn & Company thought advisable for the purpose, had been offered for probate in the Orphans' Court for Harford County as a third codicil to the will of Mary D. Walsh. To that instrument a caveat was filed by the executors and trustees under the will of Mary D. Walsh. While on that appeal several questions were discussed by the parties thereto, the only one which we considered related to the right of the executors and trustees under the will of Mary D. Walsh to caveat the alleged third codicil thereto. This question had by the Orphans' Court for Harford County been decided adversely to their contentions, and while on appeal we affirmed the order holding that the executors could not contest the alleged third codicil, we found that the trustees under the will, who had active duties to perform in the distribution of the corpus of the estate, were interested parties, and as such entitled to caveat the instrument offered for probate, and to that extent reversed the order appealed from. Orderly and normal procedure would seem to have required that upon the return to the Orphans' Court for Harford County of the mandate from this Court, the caveat having already been answered by the administrator of James E. Walsh issues would, if requested by either of the parties, be framed by the Court and transmitted to a court of law for trial, but it appears that nothing further has been done in the Orphans' Court, because appellants filed the present bill of complaint in equity to have it decreed (1) that the alleged third codicil to the will of Mary D. Walsh was not testamentary in character, and (2) that regardless of the nature and character of that instrument James E. Walsh was estopped from attempting to have the same probated, because he had accepted the provisions made for him in his mother's will and had in order to obtain those benefits executed an agreement on October 21, 1937, declaring in effect that the said paper writing now offered as the third codicil to his mother's will was of no legal force and effect and had requested the executors of his mother's estate to disregard said instrument and proceed with the settlement of the estate in the same manner as if she had never executed it.

Appellants attempt to justify this procedure upon the ingenious reasoning (a) that the agreement of James E. Walsh estops his administrator from proceeding further in the Orphans' Court with the...