Levering v. Levering

2 A. 1, 64 Md. 399, 1885 Md. LEXIS 51

• Court: Court of Appeals of Maryland
• Decided: December 17, 1885
• Status: Published

Opinions

Yellott, J.,

delivered the opinion of the Court.

In this record are two appeals from an order of the Orphans’ Court of Baltimore City, revoking the letters testamentary granted to the appellant on the estate of Samuel S. Levering, and rejecting the claim of said appellant, as surviving partner of the firm of Thomas W. Levering & Sons, against the estate of the said Samuel S. Levering, deceased. It appears from the proof in the cause, that in the year 1851, the appellant, Thomas W. Levering, entered into a copartnership with his two sons, Peter and Samuel S. Levering; the copartnership being known and designated as the firm of Thomas W. Levering & Sons. The father had been conducting the business for a number of years anterior to the formation of this copartnership, and as the sons arrived at the age of maturity, associated them with himself as members of the firm; but whether they contributed any part of the capital, or merely gave their time and attention to the affairs of the firm, and became the recipients of a portion of the profits, is a fact not disclosed by any evidence presented by this record. The sons are now dead, and, the father is the surviving partner. Subsequently to the death of his brother, Samuel S. Levering departed this life in April, 1870, leaving a last will and testament, by the terms of which his father became his sole executor. In his said will the testator directs that the affairs of the partnership should be closed up and his estate settled within a period of three . years subsequent to his decease.

The petition, upon which plenary proceedings were instituted in the Orphans’ Court, was filed by the widow of the testator, and alleges that the executor, having returned an inventory of the personal estate on the 17th day of May, 1870, postponed returning any account until the 21st of May, 1880, which was ten years after he had obtained letters testamentary and entered upon the performance of the duties appertaining to him in his representative capacity. This account exhibited a balance on hand due the estate exceeding seventeen thousand dollars ; and it is further averred that “ no other account of any nature or description ” has been rendered by the executor at any time anterior to the institution of these proceedings.

The petition further alleges that on or about the 5th day of November, 1879, the said executor, having had a large number of shares of the stock of the Mechanics’ Bank, in the City of Baltimore, belonging to the estate of his decedent, transferred to him on the books of the bank, “not as executor, but individually,” sold said stock; said transfer and sale having been made without authority derived from any order of the Orphans’ Court; “which sale does not appear on his account filed May 21st, 1880.”

It is further alleged in the petition that the executor has never given his personal attention to the administration, but, that having taken into partnership his son, Thomas H. Levering, he has surrendered to him the entire control of all these transactions ; and that now, fifteen years after the death of the testator, a partnership account is about to be presented, which is “ illegal and erroneous,” and will wholly absorb the balance of the estate, and leave nothing-in the hands of the executor for distribution. The petitioner, therefore, invokes the interposition of the Orphans’ Court, and asks for the removal of the executor, and the appointment of an administrator to represent herself and daughters, who are the only distributees under the will of the testator.

From the answer of the executor it fully appears that he passed his first administration account in May, 1880, which was ten years after letters testamentary had been granted. The sale of bank stock belonging to the estate is admitted by said executor, who urges, as an excuse, that the' sale was made “ through inadvertence, and that he meant no disrespect to the Court;” and he says that he is now ready to make a final settlement of the whole estate.

A large mass of testimony has been taken, and very little of it is relevant to the questions which can now be properly determined by this Court. A few prominent and material facts, which appear on the record without contradiction, must render a solution of many of the legal propositions presented in the able arguments of counsel wholly unnecessary. Here is an estate which, in conformity with statutory requirements, should have been speedily settled, and which, by the provisions of the will, was to be closed up within a period of three years. An interval of fifteen years has elapsed since the assumption of control by the executor, and only one account has been returned, which was not presented until ten.years after letters testamentary were granted. The petition for his removal having been exhibited, and filed on the 4th day of February, 1885, the executor proposed to settle the estate by the presentation of another account, and, on the 19th day of February, 1885, made affidavit to this account, which, when examined, is found to be composed of charges for losses alleged to have been sustained in partnership transactions, which aggregate a sum sufficient to absorb the entire estate, and leave it in a condition of insolvency. As the ultimate effect of the passage of an order, allowing this account, would be the total absorption and extinction of the estate of the decedent, in satisfaction of a claim presented by the executor, this obvious result is suggestive of the necessity for subjecting this claim to a close and rigid investigation by the Court, enlightened by all the evidence which can be possibly adduced in support of its validity.

The Court below, with these facts in view, passed hn order removing the executor and disallowing his claim, and from this order these appeals have been taken. The propriety of this order is the question now presented for determination.

. It has been held in some of the States that the power of removal is inherent in Courts of probate, and must necessarily exist in order to prevent a failure of justice. Taylor vs. Biddle, 71 N. Car., 5; Stoever vs. Ludwing, 4 Serg. & R., 201.

In Maryland, however, an executor or administrator can only be removed for legal and specific causes, and after citation and an opportunity to be heard in opposition to the motion. The Orphans’ Court has no constructive powers. It has few of the attributes appertaining to Courts of general jurisdiction. Its jurisdiction is limited, and created by statute, and its exercise of power can receive no support from presumptions. We must therefore look to the sources of its power, which are to be found in the numerous legislative enactments, designating its duties and conferring the jurisdiction necessary to the proper performance of its functions.

The first three sections of Article ninety-three of the Maryland Code relate to the rendition of accounts in the administration of the estates of decedents. An account must be returned within the period of twelve months from the time when letters are granted. If the first account does not show that the estate is fully administered, another account is required within six months, and so on within every term of six months, until the estate shall appear to be fully administered. If there has been a failure to render an account within the term thus limited, or within such further time as may have been allowed by the Orphans’ Court, not exceeding six months, the letters, on the application of any person interested, may be revoked and administration granted at the discretion of the Court.

Section two hundred and seventy-five of the same Article of the Code, reads as follows:

“If any executor or administrator shall sell or remove any property without an order of the Orphans’ Court, the Orphans’ Court may revoke his letters as soon as they are satisfied of such sale or removal having taken place, and appoint an administrator, whose duty it shall be, immediately to proceed to get possession of the property so sold or removed,” &c.

The rule, by which statutes of this nature are to be construed, has been established by numerous authorities, and seems to leave to the Courts very little room for the exercise of discretion. The People vs. Brooks, 1 Denio, 457; Sifford vs. Morrison, 63 Md., 14.

But, although, the current of decisions may run so strongly and uniformly in one direction as to render the rule, applicable to the construction of a statute, fixed, stationary, stereotyped and apparently inflexible, it must be borne in mind that every law is presumed to have been enacted with reference to certain immutable principles of justice, which lie at the foundation of every system of jurisprudence. It has been well remarked that “the law, in its most positive and peremptory injunctions, is understood to disclaim, as it does in its general aphorisms, all intention of compelling to impossibilities, and the administration of laws must adopt that general exception in the consideration of all particular cases.” Broom’s Leg. Max., 222.

If therefore an executor having perishable property in his possession, and being unable to> obtain an order from the Orphans’ Court in time to prevent its loss, should, in that exigency, in good faith sell to prevent such loss, then the Court might properly apply the maxim lex non cogit ad impossibilia; and if subsequently to the sale the Court should pass an order approving his conduct, then the other-legal aphorism, omnis ratihabitio mandato aequiparatur is equally applicable.-

But the pressure of no emergency created a necessity for the transfer and sale of the bank stock by the appellant, and its sale, without an authorization from the Orphans’ Court, was clearly such a dereliction of duty as justified the interposition of the Court, and’ the passage, of an order’ of revocation. The Court therefore simply performed a duty, when it, removed the executor, and there can be no reversal of this portion of its order.

Justice requires that an executor or administrator should always be permitted to urge in his defence any matters of exculpation which may exist. We have said that no such matters are shown in this case, and we do not consider it necessary to determine in advance what defences might be sufficient for his protection in possible cases.

The questions presented by the appeal from that portion of the order of the Orphans’ Court, which operates as a disallowance and rejection of the claim produced by the executor against the estate of his decedent, must now be considered. This branch of the case was most ably and elaborately argued by counsel, who seemed solicitous that this Court should now finally determine the "matters in controversy. But it must be manifest that it is beyond the power of the Court, on this appeal, to reach any such result. The Orphans’ Court can pass upon claims against the estates of decedents, but its determination is not final nor conclusive. If the claim is disallowed, the claimant is not precluded from seeking his remedy in a Court of law or equity. If the claim is allowed, the executor or administrator may refuse to pay it. The decision of the Orphans’ Court is only prima facie, and if the claim is allowed, only operates as a protection extended to the executor in the event of its liquidation by a disbursement of the funds held by him in his representative capacity. Owens vs. Collinson, 3 G. & J., 37; Lee vs. Lee & Welch 6 G. & J., 321; Stevenson vs. Shriver, 9 G. & J., 324; Stockett vs. Jones, 10 G. & J., 276; Hesson vs. Hesson, 14 Md., 8; Art. 93, sec. 101, of the Code.

And “ claims of executors and administrators stand on the same footing with those presented by other creditors of deceased persons.” Semmes, Exc'r of Young vs. Young’s Adm’rs, 10 Md., 246.

The Orphans’ Court with its limited powers and circumscribed jurisdiction, cannot finally and conclusively determine any claim brought by a creditor against the estate of a decedent.

The adjudication and conclusive determination of matters in controversy between an executor or administrator and creditors, appertain “exclusively to the Courts of law and equity.”

“The Orphans’ Court cannot, under pretext of incidental powers or constructive authority, exercise any jurisdiction not expressly given it by law.” Scott vs. Burch, 6 H. & J., 79; Bowie vs. Ghiselin, 30 Md., 557.

And, when an order of the Orphans’ Court has been appealed from, the decision of the Court of Appeals is not final and. conclusive with respect to the litigating parties. The original jurisdiction was only prima facie, “and the exercisé of the appellate jurisdiction did not increase its effect.” State, use of Stevenson vs. Reigart, 1 Gill, 1.

From what has been said it follows that, on this appeal, there can be no final adjustment of the matters in controversy. It becomes the duty of this Court to render just such a decision as the Orphans’ Court should have rendered; and it can only have the same effect as it would have if rendered by the Orphans’ Court, and no more. Such order is final and conclusive as respects the subsequent action of the Court below, but, as has already been shown, by the citation of authorities, is not conclusive as respects the rights of the parties to the cause. •

The principles applicable to the proof must now be ascertained. This is a claim brought by an executor against the estate of his decedent. Now it has been repeatedly decided that even when the claim of an executor against the estate has been allowed, if it should be contested before payment, its passage by the Orphans’ Court is no evidence of its correctness. “It must be supported by testimony substantially sufficient for its establishment before a jury. The passage of the claim adds nothing to its intrinsic merits or authenticity when reviewed by the Orphans’ Court.” Lee vs. Lee & Welsh, 6 G. & J., 316; Bowling vs. Lamar, 1 Gill, 363.

“And for want of full proof the Orphans’ Court may reject any claim against a deceased’s estate after it has been passed and before payment.” Edelen vs. Edelen, 11 Md., 419; Kent vs. Waters, 18 Md., 72.

This being a rule rigidly observed, in relation to a claim already passed by the Orphans’ Court, it would be strangely inconsistent to ignore its applicability when proceedings are pending with reference to claims which are, as soon as presented, most strenuously and persistently contested. The ends of justice cannot be attained unless the accounts of the claimant are closely scrutinized; and an adduction of proof, sufficient to carry conviction to the minds of intelligent jurors, should be required as a necessary preliminary to the determination of the controversy.

(Decided 17th December, 1885.)

When we proceed to investigate the claims presented by the appellant, it is discovered that they grew out of the complicated transactions of a partnership existing and doing business for a number of years. One of the items in the account is for losses incurred in the sale of real estate belonging to the partners. There is nothing in this record to show what portion of this estate belonged to the decedent. His estate is also charged with his proportion of the losses alleged to have been sustained by the firm in its numerous and multiform transactions. Although the evidence contained in this record is voluminous there is no proof sufficient to show the precise nature and extent of the interest which the deceased had in the firm. It cannot be ascertained from the evidence wffiether he contributed a portion of the capital or only his time and attention to the transaction of the business. As the claims are for losses, the ascertainment of these facts might possibly become vitally important to any determination in regard to their validity. In the absence of proof in relation to these important and material facts, the Orphans’ Court could not do otherwise than reject, the accounts of a claimant, against whom the doors of the Courts of law and equity are not closed ; and in which he may therefore pursue his remedy and obtain a final decision of the matters in controversy.

There being no error in any of the rulings of the Orphans’ Court, its order must be affirmed, with costs to the appellees in each appeal.

Order affirmed.