Watson v. Cook

• Decision Date: 19 May 1936
• Docket Number: 1.
• Citation: Watson v. Cook, 170 Md. 377, 184 A. 908 (Md. 1936)
• Parties: WATSON v. COOK.
• Court: Maryland Court of Appeals

184 A. 908

170 Md. 377

WATSON v. COOK.

No. 1.

Court of Appeals of Maryland

May 19, 1936

Appeal from Orphans' Court of Baltimore City; William M. Dunn and Leo J. Cummings, Judges.

Petition by Joseph B. Cook against John Watson, Junior, executor of the estate of Mary F. Timanus, deceased.From an adverse order, the executor appeals.

Appeal dismissed.

Argued before BOND, C.J., and URNER, OFFUTT, PARKE, MITCHELLSHEHAN, and JOHNSON, JJ.

John Watson, Jr., of Baltimore, for appellant.

William C. Rogers, of Baltimore, for appellee.

JOHNSON Judge.

In September, 1935, Joseph B. Cook, an undertaker, filed in the orphans' court of Baltimore City under section 353A of the city's charter (CodePub.Loc.Laws 1930, art. 4, § 353A), a petition in which he recited that he had two years previously buried the remains of one Mary F. Timanus according to her station in life, and had subsequently called upon her executor, appellant herein, for the payment of $346.30, being the amount thus expended by him in the preparation and burial of her remains; that the executor refused to pay said sum, which, however, was a reasonable one.To this petition the executor answered, alleging that he had no part in ordering or arranging for the funeral expenses of his decedent, having at that time been absent from the state of Maryland, and had no knowledge of what actually took place with reference to her burial; yet he further stated that decedent's estate consisted of property located in Baltimore City appraised at $1,500, furniture and jewelry appraised at $71, and an indebtedness of $1,185, against which, in addition to funeral expenses, there were other claims, including taxes of $110.20, medical services of $275 miscellaneous claims of $100, and a disputed claim for services allegedly rendered deceased, amounting to $132.It was therein contended that the undertaker's bill for funeral expenses was unreasonable and excessive, and should be reduced to meet the "circumstances of the deceased."Some weeks later, the matter was heard by the court upon petition and answer, whereupon an order was passed directing the executor to pay unto petitioner $300 on account of the bill in question.It is from this order that the present appeal is taken.

Obviously the statement of the executor that he had no part in ordering or arranging for the burial of his decedent, because of his absence from the state, is unavailing and immaterial, for as said by Judge Irving, speaking for this court in Lentz v. Pilert,60 Md. 296, 300, 45 Am. Rep. 732: "In such case because proper burial was indispensable, and somebody must take the responsibility of having it attended to, the law has generally been understood to accord payment from the estate on an implied promise on the part of the executor or administrator to pay it.Chitty on Contracts, 296;Green v. Salmon, 8 A. & E. 348;Tugwell v. Heyman, 3 Camp. 298;Rogers v. Price, 3 Y. & J. 28."

The question in controversy having been submitted to the court for determination upon petition and answer under oath, all material allegations of fact contained in the answer must be taken as true.Fulford v. Fulford,153 Md. 81, 92, 137 A. 487, and cases there cited;Bagby on Executors and Administrators, § 148.

It therefore indisputably appears that the estate is solvent to an extent exceeding $1,800, even by allowing the account here under consideration and all other claims presented.

By section 353A of the Baltimore City Charter(Code Pub.Loc.Laws, 1930, art. 4, § 353A), under which the order was passed, it is provided inter alia that "every executor or administrator within ninety days after the grant of letters, shall pay, out of the first moneys received by him, after the first cost of letters of administration, and after all taxes due from his decedent shall have been paid or determined, the funeral expenses of his decedent, to be allowed in the discretion of the Orphans' Court according to the condition and circumstances of the deceased, in no event to exceed $300.00, except by special order of court, and provided the estate of the decedent be solvent, and the same shall be preferred to all debts and claims against the deceased, except for taxes due and in arrears from the decedent."Subsequently in the same section a remedy is provided to insure the speedy payment of funeral expenses.The section itself, apart from this remedy, in no way conflicts with section 5 of article 93 of the CodeSupp.1935 with reference to the amount to be allowed as funeral expenses at the discretion of the court not exceeding $300 except by special order and provided the estate of a decedent be solvent, and this construction of the statute is not changed by the provision requiring the court to "fix and determine the amount due thereon"(CodePub.Loc.Laws 1930, art. 4, § 353A), since the amount allowable for such expenses in their discretion up to $300 can in no case exceed the amount actually due therefor.

In view of the admitted solvency of the estate to the extent shown by the answer, we are of the opinion that even though the discretion thus delegated by the Legislature is reviewable, there is shown no abuse of it on the part of the orphans' court of Baltimore City.Moreover, in all such cases in the absence of a showing to the contrary the orders of the court are presumably correct.Badders v. O'Brien,114 Md. 451, 455 and 456, 79 A. 917;In re Knight's Estate,144 Md. 376, 379, 125 A. 183, and cases there cited;Beachley v. Estate of Bollinger,119 Md. 151, 156, 86 A. 135.

But is the order appealed from reviewable, or was the discretion exercised by the orphans' court in its passage such as to deny this right?Undoubtedly, in certain cases there exists a judicial discretion, by which there is conferred upon the trial court the exclusive right to decide as the court finds proper; its discretion in such cases not being subject to review by an appellate tribunal.See1 Words and Phrases, Fourth Series, p. 758.Such "discretion" is defined in Bouvier's Law Dictionary (Rawle's 3d Revision)p. 884, as: "The power exercised by courts to determine questions to which no strict rule of law is applicable but which, from their nature, and the circumstances of the case, are controlled by the personal judgment of the court."

That part of section 353A of the Baltimore City Charter, in so far as the delegation of discretion is concerned, being in harmony with section 5 of article 93 of the Code, the decisions under the latter may, so far as applicable appropriately be considered in dealing with the charter provision.In construing the Code provision, this court has in many cases recognized the existence of an irreviewable discretion with reference to the allowance of commissions to an executor or administrator, and has always held that so long as the allowance in question was within the limits prescribed by the statute,...