Robinson v. Singerly Pulp & Paper Co. of Cecil County

• Decision Date: 24 March 1909
• Citation: Robinson v. Singerly Pulp & Paper Co. of Cecil County, 72 A. 828, 110 Md. 382 (Md. 1909)
• Parties: ROBINSON v. SINGERLY PULP & PAPER CO. OF CECIL COUNTY et al.
• Court: Maryland Court of Appeals

72 A. 828

110 Md. 382

ROBINSON v. SINGERLY PULP & PAPER CO. OF CECIL COUNTY et al.

Court of Appeals of Maryland

March 24, 1909

Appeal from Circuit Court, Cecil County, in Equity; James A. Pearce Wm. H. Adkins, and Philemon B. Hopper, Judges.

Bill of Elizabeth Robinson against the Singerly Pulp & Paper Company of Cecil County and others. From a decree for respondents complainant appeals. Affirmed.

Argued before BOYD, C.J., and BRISCOE, SCHMUCKER, BURKE WORTHINGTON, THOMAS, and HENRY, JJ.

William S. Evans and L. M. Haines, for appellant.

John P Poe, for appellees.

HENRY J.

This appeal from the circuit court for Cecil county, in equity, depends for its determination upon a single question of fact, coupled with some points of evidence; but, in order to understand the proposition, a somewhat lengthy statement of the case will be necessary.

The appellant, who is the daughter of the late Joseph Singerly, of Philadelphia, who died in the year 1878, is the beneficiary under the third item of her father's will, to the extent of a life annuity of $6,000, to be paid in monthly installments of $500. A like bequest was made by the testator to two other children, and the residuary estate was given and bequeathed to the Pennsylvania Company for Insurance on Lives & Granting Annuities in trust to pay the annuities to his children, and William M. Singerly, to whom was bequeathed a large part of the estate, was made responsible for the payment of such portion of these annuities as the income from the residuary estate might be deficient in providing for. The legacy, with the conditions attached, was accepted by William M. Singerly, who paid the several installments of annuities until his death in February, 1898. In 1881 William M. Singerly, in obedience to an order of the orphans' court of the county and city of Philadelphia, passed in the matter of the estate of Joseph Singerly, deceased, entered bond to the commonwealth of Pennsylvania in the penalty of $100,000, with the Fidelity Insurance, Trust & Safe Deposit Company as surety thereon, conditioned for the payment of said annuity. In 1884 Wm. M. Singerly, in order to indemnify the aforesaid Fidelity Insurance, Trust & Safe Deposit Company from loss by reason of its suretyship, gave his individual bond to said company in the penalty of $200,000, and secured said bond by a mortgage for $100,000 to said company upon certain property in Cecil county, known as the "Providence Paper Mills." Subsequently Wm. M. Singerly conveyed the said Providence Paper Mills and another property, known as the "Singerly Pulp & Paper Mill," to the Singerly Pulp & Paper Company, a corporation, and the last-named grantee mortgaged both properties to the Chestnut Street Trust & Saving Fund Company, trustee, to secure an issue of $500,000 of bonds. On July 13, 1898, the appellant executed a release to the Fidelity Insurance, Trust & Safe Deposit Company from all liability upon its obligation of suretyship upon the bond of Wm. M. Singerly, then deceased, and received an assignment to her of the mortgage given by way of indemnity by the said Singerly to the said company, as hereinbefore mentioned.

In September, 1898, the appellant and her husband, who was then living, filed a bill for the foreclosure of the above mortgage, and in December of the same year Richard Y. Cook and George H. Earle, Jr., assignees of the Chestnut Street Trust & Saving Fund Company, and George H. Earle, Jr., receiver of the Chestnut Street National Bank, on behalf of themselves and other holders of the bonds of the Singerly Pulp & Paper Company, filed a bill in the Cecil county court for a foreclosure of the $500,000 mortgage, given to secure the bonds aforesaid, and in March, 1899, the Singerly Pulp & Paper Company filed a bill in the Cecil county court asking for the appointment of a new trustee, under the $500,000 mortgage, in the place of the insolvent Chestnut Street Trust & Saving Fund Company. These three cases were afterwards consolidated under an agreement, filed March 29, 1899, signed by the solicitors for all the parties, as follows: "It is hereby agreed in the several above-entitled causes: (1) That the said causes shall be consolidated. (2) That a decree be entered adjudging and declaring the mortgage from Wm. M. Singerly to the Fidelity Insurance, Trust & Safe Deposit Company assigned to Mrs. Elizabeth Robinson in these proceedings mentioned to be a valid first lien upon the property described in said mortgage. (3) That a decree shall be entered in the consolidated cause for the sale of the property covered by the mortgage mentioned in said causes by trustees to be appointed by the court. (4) This agreement is subject to the approval of John G. Johnson, Esq., of Philadelphia."

On April 1, 1899, the circuit court for Cecil county, in these consolidated cases, passed a decree, the second paragraph of which is as follows: "That the mortgage from Wm. M. Singerly to the Fidelity Insurance, Trust & Safe Deposit Company, dated 26th day of July, 1884, and assigned by said last-mentioned company to Elizabeth Robinson, according to the true intent and meaning thereof, is a mortgage to secure to said Elizabeth Robinson the payment of the annuity of $6,000 mentioned in these proceedings, and is a valid first lien upon the property described in said mortgage, being the property known as the 'Providence Paper Mill,' and that there is due and unpaid to the said Elizabeth Robinson the several monthly payments of $500 each falling due on the first day of each month since February 1, 1898, amounting to $6,500, together with interest thereon from said several dates, and, by reason of said quarterly payments being due and unpaid, that said mortgage is now in default." Subsequently, on January 22, 1900, this decree, on petition filed by Elizabeth Robinson, was corrected so as to make the amount due on the said annuity $7,000, instead of $6,500. By the said decree William T. Warburton, Albert Constable, and John S. Wirt were appointed trustees to sell the property in the proceedings mentioned, and in pursuance of such authority did make sale thereof for the sum of $70,000, and brought the proceeds into court. The auditor stated an account, which after allowing $7,344.12 to Mrs. Robinson for arrearages in her annuity, and which after deducting expenses of sale and other charges allowed by the court, showed a balance of $43,964.67, which amount the audit distributed as follows: "To Wm. T. Warburton, Albert Constable, and John S. Wirt, trustees, to be invested under the direction of this court and the interest thereof to be paid to the said Elizabeth Robinson, during her life, and, after her death, to be distributed under the future order of this court." This audit was filed March 22, 1900, and on May 8, 1900, the said court passed the following order ratifying the same: "Ordered this 8th day of May, 1900, that the within and foregoing report of the auditor be and the same is hereby ratified and confirmed, and the trustees are hereby ordered to distribute the funds in accordance therewith, with a due proportion of interest as the same has been or may be received. And the trustees are hereby ordered and directed to invest the sum of $43,984.67 (the same being the amount named in this audit, upon which Elizabeth Robinson is to receive the interest thereon during her life) in good first mortgages on real estate in Cecil county, Md., under the direction of this court; the interest arising from said investments to be paid to Elizabeth Robinson during her life, and upon the death of the said Elizabeth Robinson the principal sum to be brought into this court to be disposed of under its future order."

The three trustees above named, and, after the death of Messrs. Constable and Wirt, Mr. W. T. Warburton, who was appointed sole trustee by the court, regularly paid over the interest collected on the money invested by them to Mrs. Robinson; but on September 12, 1907, the complainant, Mrs. Robinson, filed in the circuit court for Cecil county a petition in the consolidated cases hereinbefore referred to, which is the beginning and the foundation of the questions involved in this appeal. The said petition recites at length the statements above set forth and makes the whole record in the said consolidated cases a part of her petition. The petition further alleges: That she has but recently discovered that the order of May 8, 1900, ratifying the audit aforesaid, was passed by mistake and is erroneous; that by said audit the said sum of $43,984.67 was distributed to the said trustees "to be invested under the direction of this court, and the interest thereof to be paid to Elizabeth Robinson during her natural life, and after her death to be distributed under the future order of this court," when in fact the said sum should have been directed to be invested for the benefit of the petitioner, and the principal and interest accruing thereon should have been ordered to be held by said trustees and from time to time applied to the payment of said installments of annuity as they fell due." The bill alleges that said order of ratification was passed by the court "inadvertently, and by mistake, and without having its attention directed thereto," and prays that an order may be passed "so drawn as to correct said error and mistake in the aforesaid auditor's report and order of confirmation of said audit, and to modify the same so that your petitioner may receive her several arrearages and annuities." Notice was given by order of publication to all persons claiming an interest in said sum of $43,984.67 to show cause, if any they had, before November 14, 1907, why the prayer of said petitioner should not be granted.

On November 11, 1907, Richard Y. Cook and George H....