Tilghman v. Frazer

• Decision Date: 04 April 1952
• Docket Number: No. 138,138
• Citation: Tilghman v. Frazer, 199 Md. 620, 87 A.2d 811 (Md. 1952)
• Parties: TILGHMAN v. FRAZER et al.
• Court: Maryland Court of Appeals

Page 620

199 Md. 620

87 A.2d 811

TILGHMAN v. FRAZER et al.

No. 138.

Court of Appeals of Maryland.

April 4, 1952.

Rehearing Denied May 6, 1952.

Harrison Tilghman, Easton, for appellant.

Amos W. W. Woodcock, Salisbury, for appellees.

Before MARBURY, C. J., and DELAPLAINE and MARKELL, JJ.

MARKELL, Judge.

This is the fourth appeal, and our fifth opinion, in this case. Tilghman v. Frazer, 191 Md. 132, 59 A.2d 781, supplemental opinion, 191 Md. 153, 62 A.2d 596; Tilghman v. Frazer, Md., 79 A.2d 535; Tilghman v. Frazer, Md., 81 A.2d 627. This fourth appeal is from an order, dated September 18, 1951, overruling exceptions and finally ratifying (except two minor items not now material) a report (the fourth) and an (administration and distribution) account of the auditor, filed February 27, 1951. On the second appeal we said, 'In the lower court on April 19, 1949 an amended decree was filed pursuant to our opinions, whereby among other things, a new special auditor was appointed to state an administration account and a distribution account. * * * On September 3, 1949 the auditor filed a second preliminary report, in which he stated fully his opinion and conclusions on the contentions of the respective parties, his reasons and the authorities deemed pertinent, and set out fully his computations, showing, as of June 10, 1949, a cash deficiency of $10,036.45, 'reported at the amended figure of approximately the sum of $10,040'. To this report lengthly exceptions, in the nature of briefs with citation of authorities, were filed by both appellant and appellees. These exceptions were heard by the court and briefs filed. On August 21, 1950 the court filed a 'memorandum' expressing accord with the auditor's views, but expressly refrained from final ratification of the auditor's report, and instead filed an order requesting the auditor to file a third preliminary report, including computations only, showing the estimated amount of securities necessary to be sold [i. e., the cash deficiency] as of September 1, 1950. On October 27, 1950 the auditor filed his third preliminary report in which he showed, with computations only, 'the estimated amount of securities necessary to be sold as of September 1, 1950' to be $9,964.91. * * * At the argument we were informed that the auditor has recently filed a fourth report, bringing his accounts nearer up to date, to which exceptions would be filed within the few days yet remaining for that purpose. If and when this report, or any modified accounts in lieu of it, are finally ratified, such an order of ratification will be a final decree or order in the nature of a final decree.' 79 A.2d 536-538. The 'fourth report' there mentioned is the one now before us.

We have found less difficulty in deciding the questions now before us than in finding what questions are before us. The printed appendix to appellant's brief contains much irrelevant matter, including old wives' tales of twenty, thirty and forty years ago, which we sifted, the relevant from the irrelevant, the sufficient from the insufficient, in relation to claims of appellant which we decided on the first appeal. On the other hand neither the auditor's fourth report, which contains his final computations, and ratification of which is now before us, nor his second report, 'in which he stated fully his opinion and conclusions on the contentions of the respective parties, his reasons and the authorities deemed pertinent', has been printed at all. Without printing papers to which the instant appeal directly relates, appellant in his briefs refers us to 'facts' stated on specified pages in his briefs (not papers printed in the appendices) on the second and third appeals. The pages referred to in turn, or the instant briefs, or both, refer to (a) 'facts' stated in his brief on the first appeal, with an incorrect statement that these 'facts' 'are now before this court pursuant to Rule 13 * * * relating to appeals * * *', and (b) many pages of unprinted transcripts and describe (c) still more numerous papers in the lower court which apparently have never reached this court in any form. Obviously these labyrinthine references to unprinted or nonexistent papers in this court furnish us neither 'facts' nor records on which to base judicial action. The court's memorandum of August 21, 1950 (which is printed) covers much of the ground covered in the same way in the auditor's second report. Appellant, not only in his briefs but in his exceptions, makes little or no distinction between facts and arguments. Though he complains copiously of what the auditor and the court have done, he seldom states specifically what they should have done and sometimes fails to indicate whether he asks that something complained of be undone at all. Without the auditor's computations before us, we could not review any details of the computations. It is, however, clear to what basic principles, underlying the computations, appellant objects. These basic principles we shall pass upon. We are not aware that appellant objects to any details of computation or other details of the report. However, and detail of the report not now before us will not be open on any future appeal, but is now finally decided by final ratification of the report without appeal as to such detail.

Appellant in his brief states ten questions as now before us. Practically all these questions are argumentative rhetorical statements of some phase of the one question really before us or of several other questions which we have heretofore decided, adversely to appellant, but which appellant seeks to raise in different form. It will not be necessary to discuss separately, or even mention, these ten so-called questions.

The basic question now before us is whether, as between life tenant and remainderman, in the absence of indication of a contrary intent by the testator, income received, during the period of administration, from that part of the testator's assets which eventually was sold and used to pay debts, administration expenses and legacies, goes to the life tenant as income or, together with the assets so sold and used, is part of the corpus. This question was decided by this court, by holding that such income goes to corpus, fifty-eight years ago. Wethered v. Safe Deposit & Trust Co., 1894, 79 Md. 153, 28 A. 812; followed in York v. Maryland Trust Co., 1926, 150 Md. 354, 133 A. 128, 46 A.L.R. 231. After considering appellant's earnest, elaborate and unique contentions to the contrary, we find no reason for now undeciding this question and deciding it in a different way. In the Wethered case, and in the development of the law in other jurisdictions, this question was a corollary to the question when the income of the life tenant of a residue begins. In the Wethered case this court held that when a testator gave all the residue of his estate, of every kind, in trust, to divide all the net income into five equal parts and to pay one part to each of five named persons for life, with remainder over, the life tenants are entitled to the whole net income from the residue from the death of the testator, and no portion of such income is liable for his debts or costs of administration, but they are payable out of corpus. The court said, '* * * according to most authorities, a bequest of the residue of the personal estate for life, with the remainder over, generally entitles the life tenant to the income, commencing from the death of the testator; certainly, as between the life tenant and remainderman. Of course, the income from all the personal estate is as liable for the debts of the decedent as the principal, and must be so applied, if necessary; but when the estate is ample to pay all debts, expenses of administration, and legacies, and there still remains a considerable residue, the income of which is, by the terms of the will, to be paid to life tenants, and then the corpus or principal to go to remainder-men, the above principles will apply, unless the testator has provided otherwise, or there be some peculiar circumstances which would change the general rule.' 79 Md. 158, 28 A. 813. See Miller on Construction of Wills, § 135.

After deciding this basic question, the court disposed of the question now before us as a necessary corollary. 'Of course, the income on so much of the principal as must be sold and used for the purposes herein stated will not be payable to the life tenants, as the residue of the estate is lessened to [by] the amount of the principal so used.' 79 Md. 163, 28 A. 815. The Wethered case was followed in the York case thirty-two years later, in which the court said, 'We do not find in the testator's will any expression of intention that the debts should be paid from income, but we do think there is an indication that the wife was only to receive the income from the residue of the estate, after the payment of the debts, and under these circumstances it is clear that the rules laid down in the Wethered case and the other authorities heretofore cited should apply, and these rules are: (1) That the debts and expenses are payable from the corpus and not from the income; and (2) that where a life tenant is entitled to the income such income, in the absence of a contrary intention expressed in the will, is confined to that received from the residue, and does not ordinarily include the income derived from that part of the principal used to pay debts, expenses, and specific legacies. It accordingly follows that in this case the interest items should have been charged against the corpus of the estate, but it also follows that, since there was no contrary intention expressed in the will, the life tenant was not entitled to receive the dividends derived from the securities sold to pay the testator's debts, and, as these dividends exceeded the amount of interest charged against her, she has suffered no injury. As a matter of fact, she has been overpaid; but, as all the appellees...