Taylor v. Mitchell

1 Balt. C. Rep. 232

• Court: Baltimore City Circuit Court
• Decided: November 27, 1891
• Status: Published

Opinion

DENNIS, J.—

If, as the bill alleges, the claim of Mrs. Miller, is a fraudulent one and was allowed through collusion with the trustee, then the amount audited to her must be turned back into the general assets of the estate, to be distributed among the other creditors. No collusion on the part of the other creditors, or such other conduct as would estop them from participating in this distribution, is alleged. The sureties on the trustee’s bond are clearly responsible for the full amount of his defalcation, what interest have they then in this controversy? If those who are entitled to participate in the event of Mrs. Miller’s claim being declared fraudulent and the amount audited to her being turned back into the general estate for distribution, do not object, who can object? It is money to which they alone are entitled which is being disposed of, money which the sureties are bound to pay, and it is immaterial to the latter to which creditors it is to be paid; they are bound for it in any event. If a creditor had filed this bill, a very different' case would be presented and the language of the Court of Appeals saying the audit could be set aside by proper proceedings in this court must be construed as having reference to a proceeding by proper parties — by someone who has a standing in court to complain. For these reasons the demurrer will be sustained.

Judge Dennis, in conformity, with the above opinion, signed a decree dismissing the bill, with costs to the defendants.