Porter v. Timanus

• Decision Date: 20 July 1858
• Citation: 12 Md. 283
• Parties: REBECCA A. F. PORTER, Exc'x of FRANCIS EARLOUGHER, v. CHARLES TIMANUS, and others.
• Court: Maryland Court of Appeals

12 Md. 283

REBECCA A. F. PORTER, Exc'x of FRANCIS EARLOUGHER, v. CHARLES TIMANUS, and others.

Court of Appeals of Maryland.

Jul. 20, 1858

An appeal from the orphans court must be taken within thirty days after the decree, order, decision or judgment appealed from was passed, as required by the act of 1818, ch 204, otherwise the appeal will be dismissed.

Under the act of 1831, ch. 315, the orphans court is clothed with a discretion to pass an order requiring an executor to bring money in his hands into court, and, upon failure to comply, to revoke his letters, and when that court has exercised such discretion, its decision is final, and no appeal lies therefrom.

Notice of such order ought, in all cases, to be given to the party upon whom it is designed to operate, and he should be allowed his day in court to comply therewith.

APPEAL from the Orphans Court for Howard county.

This appeal was taken on the 6th of March 1855, from several orders of the court below, passed in the matter of the estate of Francis Earlougher, deceased, of which the appellant was executrix.

By the will of the deceased, admitted to probate in 1849, he devised all his real estate to his executors and their heirs, in trust to sell the same, and, out of the proceeds, to pay his debts, and distribute the balance, after allowing his widow her thirds, among his children, in a specified manner. On the 7th of August 1849, letters testamentary were granted to appellant, who was the widow of the deceased, and one of the executors named in the will, and who proceeded to execute the trust by selling the personal and real estate, and passed several accounts in the orphans court. The real estate, consisting of a farm and a house and lot, were sold in March 1851, and April 1852, and these sales were reported to, and ratified by, the orphans court. The last account, which was passed on the 18th of July 1854 shows a balance due the estate of $3007.28.

On the 17th of October 1854, the appellees, who were legatees under the will, filed their petition in the orphans court objecting to an alleged proposed distribution account, about to be made by the executrix, on the ground that she had not charged herself with certain specified debts due the estate nor with any interest on the amount of sales, nor with the rents of the house and farm, from the death of the testator to the times of sale, and praying that the account may be rejected, and that the executrix may be required to pass an account charging herself with these matters, and then the balance distributed among the parties according to their respective interests. This petition the executrix, having been duly cited, answered, insisting that she ought not to be charged with any of the matters referred to therein, for reasons which are stated at length in her answer.

Afterwards, on the 2nd of January 1855, as the record states, the parties, by their attorneys, again appeared in court, and oral testimony was taken as to the annual value of the house and farm, and, on that day, two orders were passed by the orphans court. The first, which purports to have been passed " in the matter of the petition of" the appellees, adjudges that the executrix " is answerable for all interest received, and for the interest due on notes or bonds, from the date of their maturity," and for the rent of the house and farm for two years, at the rate of $100 per year for the former, and $200 per year for the latter, and orders her to " pay or bring into this court the sum of $600, for rents received by her for the farm and house, before the sales thereof, and all the interest received by her, or properly chargeable on the amount of the said sales of the said house and farm." The second order, which purports to have been passed " on the application of" the appellees, directs the executrix to " bring into this court, on or before the 16th day of January 1855, the sum of $3007.28, being the balance appearing to be due on the last account passed therein by her." On the same day (2nd of January 1855,) the court ordered a summons to be issued to the executrix to appear in court on the 16th of January 1855, " to show cause, if any she have, why the assets in hand should not be distributed," and the summons, which is set out in the record, and was duly served, is to the same effect, with the additional words " as directed in the order of said court passed this day."

On the 20th of February 1855, the court, at the instance of the appellees, passed another order directing the executrix to " bring into this court, under an order of the said court of the 2nd day of January 1855, on or before the 6th day of March 1855, the sum of $3007.28, being the balance appearing to be due on the last account passed therein by her, otherwise this court will revoke the letters of the said executrix, and appoint an administrator from among the legal heirs." On the 6th of March 1855, the executrix having failed to comply with these orders, the court passed an order revoking her letters, and appointing an administrator in her place, and on the same day she, by her attorney, prayed " an appeal from the orders and decrees of the said orphans court, as aforesaid rendered in the premises."

The cause was argued before LE GRAND, C. J., ECCLESTON and BARTOL, J.

Wm. Schley for the appellants:

1st. The order of the 2nd of January 1855, was erroneous, 1st, because it declares that the executrix is answerable for the interest due on notes or bonds from their maturity. 2nd, because it charges her, as executrix, for the use and occupation of the farm and house. 3rd, because it requires her, as executrix, to bring into court $600 for rents, and $3007.28 for distribution.

2nd. The order of the 20th of February 1855, is erroneous, 1st, because it is founded on the erroneous order of the 2nd of January 1855. 2nd, because it orders the fund to be brought into court for distribution. 3rd, because it determines ab ante that failure to comply shall ipso facto be a ground for revocacation of her letters.

3rd. The order of the 6th of March 1855, was erroneous, 1st, because no notice was given to the appellant of the exigency of the order of the 20th of February, and she was not present or represented either when that order or the order of the 5th of March was passed. 2nd, because the failure to bring the fund into court for distribution, was not a ground on which her letters ought to have been revoked.

By the will of the testator, his real estate was directed to be sold, and when sold, the proceeds were properly personal estate, the conversion to that extent being effected by the will. But until the power of sale is exercised, the real estate technically descends to the heirs, and subsists as real estate until converted by actual sale, or, by the exercise of the power the estate which so descended to the heirs is divested; but the intermediate profits are the issues and profits of real estate, and belong to the heirs, qua heirs, and not to the legatees under the will. Whether a court of chancery would, in case of unjustifiable delay, appoint a receiver, is not involved in this inquiry, but clearly the orphans court has no general jurisdiction over trusts. 4 Md. Ch. Dec., 425, Conner vs. Ogle. It would seem, therefore, an error to require her to account, as executrix, for the farm and house which she occupied up to the time of sale.

Again, by the order, she is not only required to account for interest received by her, but is made answerable for interest due on notes and bonds from the date of their maturity. By the terms of this decree she is made answerable for more than she has received--for what is still due, and which may never be received. This is clearly erroneous.

Again, by what authority does the orphans court call in money for distribution in a case where the executrix did not ask the assistance of that court? There are many provisions which relate to cases of proposed investments of money; and provisions which relate to cases of apprehended loss; and provisions which relate to distribution of a surplus or specific articles. The act of 1810, ch. 34, sec. 5, relates to property in kind, and the case of Williams vs. Holmes, 9 Md. Rep., 281, was a case of distribution in kind. By the act of 1798, ch. 101, the application of the administrator to the orphans court, was the condition on which the court could make the distribution, (sub. ch. 11, sec. 16,) and by sub. ch. 14, sec. 12, an executor may appoint a meeting of parties interested for distribution, and on a day approved by the court, " payment or distribution may be made under the direction and control of the court." But is the administrator bound so to apply? more especially is an executor bound so to apply? The testamentary bond is liable for any default, and a court of chancery may take jurisdiction under certain circumstances. But a legatee cannot collect his legacy, whether specific or residuary, through the orphans court. That court cannot exercise the functions of a court of law.

Now the right to the office of executrix is a vested right, and is protected by law, and no one clothed with that office can be deprived of it, unless upon justifiable cause. And unless the court had jurisdiction to make distribution of the residue, as a matter of judicial right on the promotion of the legatees, her failure to comply with the order of that court was no justification for the revocation of her letters. Besides this, she ought to have had notice, by citation or service, of the exigency of the order of the 20th of February 1855, and as none was given her, she was not even guilty of contempt, much less of default.

Oliver Miller for the appellees:

1st. There were two separate orders passed on the 2nd of ...