Dalrymple v. Gamble

11 A. 718, 68 Md. 156, 1887 Md. LEXIS 20

Opinion

Irving, J.,

delivered the opinion of the Court.

The facts essential to be known in this case, for the intelligent appreciation of the questions raised in it, and to be disposed of by us, are as follows: Edwin A. Dalrymple died in Baltimore on the 30th of October, 1881, intestate, unmarried and without issue, leaving a considerable estate in Maryland, to which his two brothers and two sisters became entitled. Dr. Augustine J. Dalryniple, the appellant in this case, took out letters on the estate within less than a month. William H. Dalrymple, one of Edwin’s surviving brothers died in California; Immediately on receiving information of his death, this appellant took out letters on his estate in Maryland.

After taking out such letters information came to Dr. Dalrymple, the administrator, that his brother William was alleged not to have died intestate, but was alleged to have left a will in favor of one Marie E. Hatch; and that this legatee and devisee claimed to be the widow of the deceased William H. Dalrymple. Dr. Dalrymple also received information leading him to believe that this Marie E. Hatch was not the wife of his brother as she claimed to be ; and that the alleged will was fraudulent; and if executed by his brother was so executed when he was incompetent to execute it, and unable to resist the influence exerted over him by this Mrs. Hatch, who instead of being his wife was believed to be only his mistress. Eully impressed with this view, (and justifiably so from the information he had received) he took steps to resist the will and the' claims of this woman, in the proper Courts of California. This he did in his own name and that of his sisters who were equally interested with him, and who gave him a power of attorney to act for them. That litigation resulted in the establishment of the will in the lower Court; and on appeal to the Supreme Court of the State of California, the decision of the lower Court was affirmed. Pending this litigation in California proceedings were instituted here to revoke his letters in the interest of the legatee under the California will; but the same was not pressed to final disposition until the litigation in California was-, ended ; then this appellant’s letters were revoked, and new letters c. t. a. were granted to him and to J. S. Lemmon of the counsel of the appellee in this case.

Upon appeal to this Court the action of the Orphans’ Court in this regard was affirmed. This being done, the appellant proceeded to pass an account of his partial administration of the estate, before the revocation of his letters, preliminary to turning over the estate to the new administrators c. t. a. In that account he claimed allowance for his services, expenses, attorney’s fees and various costs incurred in the litigation over the will in California, and the Orphans’ Court allowed the claim. He was also allowed ten per cent, commissions. This account was passed and allowed on the 2nd December, 1882, and on the 27th of the same month, on application, the order of approval was stricken out, and the same was set for hearing on exceptions upon the 15th of January succeeding. The account had been passed without notice and was entirely ex parte, and it was entirely within the power of the Orphans’ Court to review their action alleged to have been improvident, and to rescind allowances made, if found to have been erroneous, within a reasonable time, which this certainly was, the fund being still under their control and undisposed of. Scott vs. Fox, 14 Md., 388 ; Re Estate of Stratton, 46 Md., 559 ; Bantz, Ex’r vs. Bantz, et al., 52 Md., 686; Wilson vs. McCarty, 55 Md., 281. Exceptions were specifically filed, and after hearing the Court disallowed the claim of the administrator for personal services, and-expenses incident to the litigation over the will m California; reduced the allowance of commissions írom ten per cent, to seven per cent.; and directed that the administrator'charge himself with (2-½) two and one-half per cent, interest on all cash funds as allowed him by the bank in which he made his deposits. From this order of the Orphans’ Court the administrator appealed.

Three questions are presented—viz., 1st, as to the dis-allowance of the claim for services and expenses of the California ligitation—2nd, as to the commissions allowed, and 3rd, as to the interest charged on the cash in the hands of the administrator.

The counsel for the appellant have presented his claim in the strongest possible aspect, and have made most eloquent arguments in support of their contention, based on the entire bona fides of the appellant in the litigation he unsuccessfully prosecuted in California, of which there is no doubt; and the powerful reasons he had for the belief he entertained when he took his proceeding, and for questioning the correctness of the jury’s finding—which, however, he does not now contend was otherwise than binding on him. But we have been unable to see in any of the suggestions made, or authorities cited, any good ground for questioning the correctness of the action of the Orphans’ Court.

The English and American authorities relied on in support of the appellant’s contention can have no controlling influence upon a question which depends in this State, upon statutory powers of the Orphans’ Court, and the statutory duties of an administrator; and the authorities cited in this State do not reach the question here presented. The case of Edwards vs. Bruce, 8 Md., 387, and the other cases relied on, are instances where the power of the Orphans’ Court to allow the costs was undeniable. In all cases of plenary proceedings before them, under sections 249 and 250 of the 93d Article of the Code, their power to award costs in their discretion is unquestionable. It is statutory. If this proceeding was in equity, that Court would have full power over the question of costs. But presented as it is, it must be disposed of in accordance with the law applicable to the Court in which the proceeding was had.

To allow this administrator for personal services, for expenses of travel, et ccetera, and for costs of the litigation over a will in another State, to prevent its being established, would be stretching the discretion and power of the Orphans’ Court beyond the statute, or any legitimate inference drawn from it, in any decision yet made. The Courts of the State, where the litigation was, imposed the costs on the appellant and his có-plaintiffs; and we find no warrant anywhere, for reimbursing him from the estate in his hands as administrator in this State ; which administration was, in fact, revoked as the result of the establishment of the will; They were, in no sense, costs of his administration, or of duties pertaining to it. Young, Adm'x of Young, Ex parte, 8 Gill, 285, relied on by appellant does not justify this allowance. There the rightful administrator was allowed his costs in successfully establishing his right to administer, against persons not entitled to the trust. The Court did say the allowance was proper in analogy to the practice of allowing an executor for costs in defending a caveat to the will. As his costs were given him by statute, the analogy is certainly not striking, and the allowance need not rest on it. Those costs were legitimate administration costs. Persons not entitled were endeavoring to get the control and management of the estate, and the costs of successfully resisting such pretensions were allowed out of the estate. Here, an administrator was appointed on the supposition there was no will. A will is discovered and his authority must be revoked if it be probated. lie, not as administrator and in defence of his right as administrator, but, with others as distributees, and who were all the distributees if there be no valid will, unsuccessfully resisted the will. The analogy utterly fails. The interest of the estate was in no degree promoted by his action, but if his claim be allowed, was seriously injured thereby. He made au unsuccessful effort in his oion interest, and not in that of the estate, and there seems to us no reason why the estate should bear the costs of such effort in his own interest which failed.

The only possibly plausible ground upon which the contention for the allowance could be placed is, that, the appellant was, in good faith, alid with really probable grounds for supposing he would succeed, discharging an imperative duty devolving upon him as administrator in resisting the will in the California Courts. This argument was strenuously pressed but will not stand the test of close examination. It is supposed to rest entirely upon the fifth clause of the fifth section of Article 93 of the Code of Public Laws. In providing what allowances are to be made an executor or administrator in his accounts, that fifth clause says: and for allowance “for costs and extraordinary expenses (not personal) which the Court may think proper to allow, laid out in the recovery or security of any part of the estate.” Here is authority given the Orphans’ Court to make such allowance as it thinhs proper for costs incurred in the effort to recover or secure any part of the estate. But even this authority is modified to some extent by section 105 of the same Article 93. By that section the right of the executor or administrator to allowance in such case -for the costs of prosecution or defence of such action for or against the estate, is made to depend on the certificate of the Court in which the proceeding was had, “ that there weré prohable grounds for instituting, prosecuting or defending the action in which judgment or decree shall have been given against them.”

Now, assuming that these sections contemplated such proceeding' in either a home or foreign jurisdiction, and assuming that such proceeding as was instituted in California by this appellant to resist the will there set up, could be regarded as falling within the meaning and intention of the language of the statute, “for the recovery or security of any part of the estate,” the administrator was not fortified with the certificate of the Court such as sec. 105 of Art. 93 requires. But it is hard to perceive in what sehse that proceeding was for the recovery, security or preservation of any part of the estate. The existence of the estate and the right of Wm. H. Dalrymple’s proper representatives to it, was‘in no way questioned. The only possible controversy was to whom it should go—to the alleged devisee and legatee, or to the Maryland brother and sisters. It was purely one of distributive right. The real and personal estate there, by statements in the proceedings, was not claimed to exceed eleven hundred dollars; and only one hundred dollars of that in any Court would be transmissible here for distribution here, regarding that as an ancillary administration to this, instead of this being ancillary to the one in the place of residence and will. The proceeding which was instituted was not justifiable for the recovery of that small amount. It was not ordered by the Orphans’ Court, nor lias it been contended that the Orphans’ Court could have ordered it.

We are unable to see how or where the duty devolved •on this appellant as administrator upon the estate here, to institute the proceedings in California, for the costs of which, including personal services, he is now claiming allowance. Unless such duty did rest on him, clearly the Orphans’ Court had no authority to allow him his claim. His bond required him in its statutory language well and truly to perform the office of administrator of Wm. H. Dalrymple, deceased, according to law, and shall in all respects discharge the duties required of him by law as administrator as aforesaid, without any injury or damage to any person interested in the faithful performance of said office.” By no possible straining can this bond he construed to impose a duty on the administrator, to resist the probate of a will of his alleged intestate in this or any other State. An executor, after a will is probated, is required in this State to defend the will, if the same be enveated. Compton vs. Barnes, 4 Gill, 55 ; Townshend vs. Brooke, 9 Gill, 90. And he is allowed his costs for so doing, no matter what the result; for it is held to be his duty to defend the will confirming his authority as executor. The statute gives him his costs in such case. Townshend vs. Brooke, 9 Gill, 90. But if the executor had an interest adverse to the will, and before probate, united with others in contesting its probate, and letters pendente lile were granted bim, would it be contended-that, in such case, he would he entitled in his accounts as administrator pendente lite, to allowance for costs for unsuccessfully resisting the will? Could it be claimed either in virtue of the statute or by analogy to it? Clearly it could not be with any plausibility even in the claim, and if it could not we are unable to perceive the distinction between such case and the one under consideration.

If a person not named as executor had taken out letters pendente lite, would it have become his duty as such administrator pendente lite, to interfere and resist the probate of the will? If in that case or in the case under review, it was his duty, then neglect to discharge that duty would have rendered him answerable on his bond as administrator. Duty and liability in such case are correlative. Would a suit on this appellant’s bond have been maintainable against him had he neglected to do what he did in respect to contesting the will? We think it very clear it could not have been, for there is no language in the bond specifying such duty, and we find nothing in the statute binding him to any such course ; nor do we know of any obtaining practice from which it could be inferred as his duty. . The action taken was purely personal in its nature, and not fiduciary in' character. It was personal in name and was conducted with others jointly interested, who had agreed to share proportionally the expenses of the proceedings. If successful it could only bring benefit to the plaintiffs therein; and it brought nothing, and secured nothing to the estate as such. The Orphans’ Court could not, on anybody’s petition, have ordered the administrator to take such proceedings, because the interest of the estate as siich was not involved. If the Court could not order it to be done, how could he voluntarily engage in it at the charge of the estate ? Suppose the estate-in Maryland had only been seven thousand dollars, then on the theory of the appellant of his right to allowance of the claim preferred, the whole estate would more than be exhausted.; and very anomalously, and the person wdio successfully maintained a right to it under the will, would be denied the fruits of her title, and be made to pay the expenses of defending her own rights, and also those of the persons whom the Courts trying the case decided had wrongfully interfered to defeat the right which was established. From what we have said it is apparent that we think the Court acted rightly in reviewing their action in the first instance, and in striking out the allowance which was first made. In that aceouut, and in that Court, no matter how bona fide the appellant had been in his conduct, in respect to the litigation for which allowance was claimed, such allowance had no proper place, and ought not to be accorded.

The order of the Orphans’ Court charging the appellant with two and one-half per cent, interest ,on the cash received, does not seem to us unreasonable or improper. It was hut ordering him’to account at a rate of interest which he admitted the bank paid him on all the funds of the estate deposited in it. He ought not to be permitted to derive benefit from it personally. It belonged to the estate. And though it bo charging him with interest on funds not actually in bank, it ought to have been there and not to have been used for the purposes it is shown to have been used for. He had no order of the Court to so use it, or to retain it for any contingency. We see no wrong in the requirement which was made of him in that regard.

Commissions were first allowed at the rate of ten per centum. When the account was reviewed,-the allowance of commissions was stricken- down and fixed at seven per centum. It is contended that the rate having been fixed at ten per cent., the administrator at once accounted with the State and paid tax thereon at that rate, and that the Court could not afterwards alter it. The Court having full power for good cause appearing to them to review its action, (Re Estate of Stratton, 46 Md., 551,) did so, and that question is not revie wable in this Court. Handy vs. Collins, 60 Md., 229. The question of' commissions is entirely in the discretion of the Orphans’ Court, except so far as it is limited by law, and no question is presented of the Court’s transcending that limit in respect to allowance. If the appellant has paid the State too much he must take such steps as are to open to him to get it refunded. We find no error and the order of the Orphans’ Court will be affirmed.

(Decided 16th December, 1887.)

Affirmed and remanded.