State, to Use of Gable v. Cheston

• Decision Date: 27 March 1879
• Citation: 51 Md. 352
• Parties: STATE OF MARYLAND, for the use of CLARA L. GABLE and ALFORD G. COALE, Trustees v. GALLOWAY CHESTON and JAMES CAREY, Surviving Obligors of ISAAC COALE, JR.
• Court: Maryland Court of Appeals

51 Md. 352

STATE OF MARYLAND, for the use of CLARA L. GABLE and ALFORD G. COALE, Trustees v. GALLOWAY CHESTON and JAMES CAREY, Surviving Obligors of ISAAC COALE, JR.

Court of Appeals of Maryland

March 27, 1879

APPEAL from the Baltimore City Court.

The case is stated in the opinion of the Court.

Exceptions.--The case was submitted to and tried before the Court, and at the trial the plaintiff prayed the Court to declare:

1. That if the Court find from the evidence, that John Gable, late of Baltimore City, deceased, made his last will and testament as read in evidence, and that letters testamentary were granted thereon by the Orphans' Court of Baltimore City, to Isaac Coale, Jr., Louisa M. Gable and George Neilson, the executors named in said will, and that the defendants together with their principal, said Isaac Coale, Jr., now deceased executed and delivered the testamentary bond offered in evidence, and that on the 8th May, 1856, said Isaac Coale Jr., opened an account in the Union Bank of Maryland, in his name of Isaac Coale, Jr., executor of John Gable, and took into his possession, as the principal acting executor of said John Gable, the cash assets of said estate, as the same were from time to time received, and continued to keep said account in said bank in said name, checking out the moneys deposited therein at his pleasure, until July, 1862, when he closed the same, having at his pleasure checked thereout for his own purposes, all the moneys so deposited by him in said bank, and in August, 1861, opened an account in the Bank of the Republic, in the city of New York in his said name of executor, which he kept open until July, 1862, and on the 16th day of April, 1867, opened an account in the Franklin Bank of Baltimore, in his said name of executor of John Gable, which he kept open until October, 1868, when the same was closed--all the moneys therein having been drawn out and used by him. And if the Court shall further find, that on the 28th June, 1856, the said Isaac Coale, Jr., (together with his co-executors,) under an order of the Orphans' Court purchased the leasehold interest in No. 94 West Monument street, for the sum of ten thousand dollars, and on the 11th day of September, 1860, the said Isaac Coale, Jr., (together with his co-executors,) purchased for five thousand dollars the reversion in fee of said 94 West Monument street, taking the assignment of the leasehold therein, and the deed of the fee, in the names of said Coale, Neilson and Gable, as executors of John Gable, and that on the 13th day of May 1866, he, (together with his co-executors,) purchased the leasehold property, known as No. 228 North Eutaw street, for $7500, taking the deed in the names of said executors. And if the Court shall further find that the said Isaac Coale, Jr., loaned the moneys in his hands as such executor, to various persons, including on several occasions the mercantile firms of Carey, Howe & Co. and Carey & Bangs, in which the defendant James Carey was a partner, acting in all his said transactions as executor of said John Gable, and that so far as the evidence shows, that he kept any accounts at all of his transactions with said estate, he kept them uniformly and uninterruptedly in his name as executor, and that on the 14th day of March, 1867, he, together with his co-executors, reported to the Orphans' Court of Baltimore City, that in pursuance of the power conferred upon them by the will of said John Gable, they had sold the property known as No. 94 West Monument street, to James Carroll, Jr., for $21,000; and that upon their said report, said sale so made by them as executors of John Gable, was finally ratified and confirmed by said Orphans' Court, on the 16th day of April, 1867, after thirty days' notice by publication: and that said Isaac Coale, Jr., as such executor, received said purchase money and deposited $20,077.72 thereof, to his credit in the Franklin Bank of Baltimore, in his name, as executor of said John Gable; and that in 1870, he was cited by the Orphans' Court of Baltimore City, to render a further account of the estate of said John Gable in his hands, as executor thereof; and that in 1871, he paid, as such executor, to the widow of John Gable, the sum of $7327.29, as mentioned in the agreed statement of facts; and if the Court further find, that on the 29th June, 1859, the said executors passed their second administration account in the Orphans' Court, by which there appeared to be due by them to the estate, the cash balance of $42,352.29; and that at the time of the passage of said account, the said Isaac Coale, Jr., only had to his credit, as such executor, in bank, the cash balance of $8078.75, and that he then had no other bank account as such executor, and that subsequently in July, 1859, he received, as such executor, the further sum of $4347.68, and in January, 1860, the further sum of $2772.63, and $1090, belonging to said estate of John Gable; and that in 1871, he caused to be prepared by the auditor of the Orphans' Court a further administration account for the said Orphans' Court, in obedience to said hereinbefore mentioned citation; and that from the time of the granting of the letters testamentary to him as executor of said John Gable, down to his death on December 31st, 1873, he always claimed to act, and did in fact act in all his transactions of every description, with, for or on account of the estate of said John Gable, in the open and avowed capacity of executor of said John Gable; and that he in fact never terminated, or intended to terminate his office, functions or responsibility of executor of said John Gable; and that he never transferred in form or in fact the funds so as aforesaid received by him as such executor, and actually in his individual and sole possession as such, to himself and said Louisa M. Gable and George Neilson, as trustees under the said will of said John Gable; and that there never was any order of the Orphans' Court directing such transfer to be made, and that no deed or other conveyance was ever made transferring the property held by such executors, or either of them, to themselves as trustees; and that neither the said Coale, Gable or Neilson, ever in fact acted, or claimed to act, as trustees under said will; and that all the receipts and disbursements, purchases and sales, loans and other transactions made by said Coale from 1856, down to 1873, in respect of said estate of said John Gable, were made by him in the name, character and capacity of executor of said John Gable, then upon such facts, if found by the Court, no presumption of law arises that on the 29th of June, 1858, or at any day prior or subsequent thereto, the functions, office and responsibility of said Coale, as such executor, had ceased, and that the funds then in his hands belonging to the estate of said John Gable, were then transferred by mere operation of law to himself, as one of the trustees of said John Gable, and the administration of said estate of said John Gable was then finally closed and settled by said executors; and if the Court shall further find that the said Coale, whilst so claiming to act, and in fact and in name so acting as such executor of John Gable, from time to time during said period, misappropriated, misapplied, lost or otherwise wasted the said sums so received by him as such executor, or any part thereof, and died on the 31st December, 1873, insolvent, and heavily indebted as such executor, to the estate of said John Gable, for the sums so received, wasted or misappropriated by him as such executor, then the plaintiff is entitled to recover from the defendants, as sureties on said testamentary bond of said Coale, to the extent of such misappropriation or waste, (not exceeding the penalty of said bond,) less the several sums admitted by the agreed statement of facts to have been recovered since the death of said Coale, from his real, personal and copartnership assets.

2. That the ordinary presumption, by virtue of which, in the absence of special circumstances, there would have been a transfer by operation of law, of the assets of the estate of John Gable, in the hands of his executor, Isaac Coale, Jr., to the said Coale, as trustee under the will, is in the case rebutted by facts and circumstances, and the testamentary bond of said Coale has never been discharged.

3. That the order of the Orphans' Court of Baltimore City, passed on the 16th April, 1867, ratifying, after due notice by publication, the sale by the executors of the real estate mentioned therein, being the act of a Court of competent jurisdiction, and never having been reversed, rescinded or set aside, is conclusive as to the validity of said sale, the power of said executors under the will to make it, and that they made it in the proper character and capacity.

4. That the order of the Circuit Court for Baltimore County, ratifying account D, makes said account prima facie evidence in this case: 1st. As to the fact of the devastavit. 2nd. As to the amount. 3rd. As to the time or times when committed. 4th. As to the character of executor of said Coale, and that as no evidence has been adduced, other than that passed upon by said Court, tending to surcharge the credit side or falsify the debit side of said account, said account should be adopted by this Court as the basis upon which the amount of the liability of the defendants is to be determined.

5. That if, in the opinion of this Court, it is competent for the defendants in this case to call in question the correctness of the principle upon which said account D was framed and ratified, and to contend in favor of the principle upon which the rejected Account E was framed, then the Court is respectfully asked to decide that said Account E was...