Rice v. Donald

• Decision Date: 30 June 1903
• Citation: 55 A. 620,97 Md. 396
• Parties: RICE v. DONALD et al.
• Court: Maryland Court of Appeals

55 A. 620

97 Md. 396

RICE v. DONALD et al.

Court of Appeals of Maryland

June 30, 1903

Appeal from Circuit Court, Frederick County, in Equity; John C Motter, Judge.

Action by James B. Rice, as administrator, etc., against Margaret Donald and others. From a judgment in favor of defendants plaintiff appeals. Affirmed.

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

S.A. Lewis, P.F. Pampel, and A.S. Brown, for appellant.

Arthur D. Willard and D. Princeton Buckey, for appellees.

SCHMUCKER J.

The appeal in this case is from an order of the circuit court for Frederick county, in equity, sustaining a demurrer to and dismissing a petition of the appellant, which sought, in effect, to revise a final decree of the court after its enrollment. The bill was filed by several of the heirs at law of the late Margaret Donald against the remainder of her heirs for a sale of a certain tract of land of which she died seised, for purposes of partition. The Fredericktown Savings Institution, which held a mortgage on the property, was also made a defendant to the suit. The bill alleged that Margaret Donald had acquired the land in question by a conveyance to her from one Edward Duval in 1879, and held it until March 26, 1899, when she died intestate, seised and possessed of it; that at the time of her death her heirs at law consisted of James Rice, who was an adult son by her former husband Stephen Rice, and the other persons, except the bank, who were made parties to the suit, and were grouped in the bill according to their respective stocks of descent; and that the bank held a mortgage for $3,500 on the land. The bill also alleged that the land was not susceptible of division in kind, and that it would be to the interest and advantage of all parties concerned to have it sold and the proceeds divided. The defendants answered the bill, James Rice admitting in his answer the allegations of the bill, and consenting to the passage of a decree as therein prayed, reserving such rights against the proceeds of sale as he then had in the land. There was some controversy between the husband, James Donald, and the heirs at law, over their respective interests in the property, the particulars of which do not appear in the record; but on January 18, 1902, a final decree was passed, directing a sale of the land, and a distribution of the proceeds under the direction of the court. After the land had been sold under the decree, and the sale ratified, the auditor, on July 29, 1902, returned an account distributing the net balance of the proceeds of sale, after deducting the costs of suit and the amount of the mortgage, among the surviving husband and heirs at law of the intestate. James Rice, sometimes called James B. Rice in the proceedings, the adult son of the intestate, filed exceptions in his own right, and as administrator of the estate of his father, Stephen Rice, to the distribution of the net balance made by the auditor; stating as the ground of his exception that the funds in court, arising from the sale of land alleged to be the property of his mother, Margaret Donald, were in fact part of the property of which his father, Stephen Rice, died seised and possessed, and should have been audited to him as the sole heir at law of his father. No testimony was taken in support of these exceptions. On August 18, 1902, six months after the enrollment of the decree, James B. Rice also filed a petition in the case in his capacity of administrator, alleging that his father, Stephen Rice, had died intestate in 1864, seised and possessed of real and personal property, and leaving surviving him his widow, Margaret, and the petitioner, as his only child and heir at law; that no letters of administration were taken out on his estate, but that his widow, Margaret (afterwards Margaret Donald), without warrant or authority, sold and disposed of his entire estate, and converted it into money, and applied it to her own use, without ever making any return or report of it to any court; that she "invested part of the said estate in a house and lot of ground on North Eutaw street, in Baltimore City, and after her marriage with James Donald proceeded, by loans and mesne conveyances, to sell and reinvest a part of said estate in Baltimore county, *** and that a part or portion thereof she invested in several houses and lots of ground on Mount street, in said city of Baltimore, which said property was, by an exchange and sale, sold, and the proceeds of such sale invested in the real estate mentioned and described in these proceedings," and sold under the decree, and the proceeds brought into court for distribution; that the petitioner was quite young at the death of his father, and, reposing trust and confidence in his mother, he never knew until the taking of testimony in the present case that his father left any property; that as soon as practicable after discovering these facts he took: out letters of administration on his father's estate; and that he is, as such administrator, entitled to have distributed to him the entire net proceeds of the land sold under the decree in this case. The prayer of the petition is that the petitioner may be made a party to the cause as administrator, and that the trustees may be directed to pay to him the net proceeds of sale, or such part thereof as the court may find him entitled to, and for further relief. Certain of the parties to the suit demurred to this petition, and on December 16, 1902, the court below passed the order appealed from, overruling the exceptions, sustaining the demurrer, and dismissing the petition. James B. Rice, in the exceptions filed in his individual capacity, claims the entire net proceeds of sale in his own right, as the only child and heir of his father, while in the petition and exceptions filed by him as administrator of his father's estate he claims the same fund as assets of that estate; but, as he nowhere suggests that his father left any creditors, the result is that the claim in both forms must, in equity, be regarded as made in the petitioner's own interest. We will, however, consider his attitude to the case in both capacities in which he appears upon the record. His rights under the exceptions filed in his individual capacity must be tested from the standpoint of an original party to the suit after the passage and enrollment of the final decree for the sale of...