Von Lingen v. Safe Deposit & Trust Co.

Pattison, J., delivered the opinion of the Court. This is the second time this case has been before this court. It originated in the equity court of Baltimore City, where a bill was filed by the executors of Catherine Marie Von Lingen, of Bremen, Germany, asking for the return of an alleged overpayment made by them to Charles W. Field, executor of his wife, Alberta L. Field, a resident of Baltimore City at the time of her death, and' one of the nieces and residuary legatees under the will of Catherine Marie Von Lingen. The facts contained in the bill, and those upon which the plaintiffs relied for relief, are fully stated in the opinion in the former case. Von Lingen v. Field, 154 Md. 638. The equity court of Baltimore City refused the relief sought and dismissed the bill. From that action of the court the case reached this court on appeal, and the decree of the lower court was reversed, and the case remanded for further proceedings. The alleged overpayment resulted from the transfer, made on the 15th day of February, 1917, to the estate of Mrs. Field, an American legatee, by the executors of her aunt, Miss Von Lingen of Germany, of certain American securities, at that time appraised and valued at $20,000, equivalent, at the rate of exchange then current, to 117,001 German marks. It may be here stated that each of the other residuary legatees *359 received advancements, amounting to 12,875 marks, before any distribution was made, though the record docs not show when these advancements or prepayments were made. On the 1st day of November, 1919, a distribution was made by the executors of Marie Von Lingen among all her residuary legatees, in which the distributive share of Alberta L. Field was charged with the value of the American securities as of the time of their transfer, in German marks, at the rate of exchange current at the date of the distribution, though it was shown by the record that, between the time of the transfer and the date of distribution, these American securities had greatly appreciated in value, when valued in the depreciating German currency. Judge TJrner, speaking for the court in the former case, said: “The fundamental question in this case is whether the share” of Alberta L. Field “should be charged in the final settlement with a large intervening appreciation of the American assets as valued in the depreciating German currency.” In discussing this question, Judge Urner said: “In view of the continuing fall In the value of the German mark, it is evident that, with respect to the distribution of the estate of Marie Von Lingen, time was a highly important factor. An equality of distribution could not be accomplished unless equal payments were made to all of the legatees at the same periods, or unless the results of any variation from that method were equalized in the finaL accounting. It would have been manifestly unfair to discriminate permanently among the legatees in regard to prepayments, since the value of the shares would he materially affected by the time of their receipt. To give such an ultimate advantage to the American legatee, as against her German cousins, by the delivery to her of securities here of stable value, at a period when the funds or assets in Germany were declining In consequence of the great war in which that country was engaged, and in which our nation has not yet become involved, would have been particularly unjust. It is clear that the advancement in 1917 on account of Mrs. Field’s share, if not subject to later adjustment, gave *360 her a much more valuable portion of the estate than that received by any of the other distributees. Whether the value of the estate as a whole be measured in marks or in dollars, the advantage from a premature and unqualified payment is equally apparent. The American stocks and bonds delivered on account of Mrs. Field’s share in 1917, at a valuation of 117,000 marks, would have been worth nearly six times that amount in marks if they had been retained for the estate until the time of the general distribution in 1919. In comparison with the current values, at the payment periods, of the shares received by the German legatees, the advancement on Mrs. Field’s share was unquestionably excessive. * * * The fall of the mark between the time of the advancement and the period of general distribution, because of the war and its consequences, was in effect a proportionate destruction of the estate’s value. * * * If the large disparity which actually resulted from the advancement on that legatee’s share is not subject to the adjustment attempted by the executors, the principle of equality which the testatrix sought to apply in the disposition of her residuary estate is rendered inoperative. The executors would have no authority thus to favor one of the legatees, and, in the final account to which the receipt for the American securities referred, they have endeavored, in accordance with their duty, to prevent such a preference.” The court, in its decision in the former case, approved of the method employed by’the executors in their treatment of the advancement made to Mrs. Field in ascertaining the distributive share to which she was entitled in the final distribution of the German estate, though at the conclusion of the opinion it said: “The information obtainable from the record does not enable us to determine definitely the extent of the plaintiffs’ rights or of the defendants’ liabilities,” and for such reason the case was remanded for further proceedings. After filing the opinion, a motion for reargument was filed, in which it was suggested that the German mark may have had a much greater value at the time of the advancements to the other legatees than it had at the time of the distribution, for which reason such legatees, like Mrs. Field, should have *361 been charged with the value of the advancements at the time when made, which was not done. In response to this motion, the court, in a memorandum filed at the foot of the opinion, said that such suggestion was not “inconsistent with the opinion which stated the inability of the court, upon the information obtainable from the records ho determine definitely the extent of the plaintiffs’ rights or the defendants’ liabilities.’ ” For that reason the case was remanded for further proceedings and proof. Upon the remand of the case, no evidence was taken as to the value of the German mark at the time the advancements were made to the German legatees. The only evidence appearing in the record is that taken as to the value of the American securities, in American money, at the time of the distribution in 1919, made two years and eight months after their transfer, when, as shown by the evidence, their value had declined from $20,000, or thereabouts, at tire time of their transfer, to $13,543 at the time of the distribution. This evidence was offered in support of the contention, made for the first time in this case, that it was the value of the securities, $13,543, at the time of the distribution, and not their value of $20,000 at the time of the transfer, that should have been considered and used in ascertaining the amount of the distributive share of Mrs. Field at the date of the distribution. The only question, therefore, presented by this appeal is: Which of these values shall be considered and used for the above stated purpose? That we may properly answer this question, we will consider all the facts and circumstances in connection with the advancement so made to Mrs. Field, and decide therefrom the intention of the parties in respect to the question here presented. As alleged in the bill and admitted by the defendants, both in their answer and in the stipulations thereafter made by the parties, Mrs. Field on the 4th day of October, 1916, through her husband, requested the executor of Miss Von Fingen “to pay her an advance on her distributive share in *362 the estate of Miss Von Lingen, and proposed to take over on account thereof, at market value, such shares of stocks and bonds, belonging to the estate, as were then held in custody by A. Schumacher & Co.” of Baltimore City, Md. On November 23rd, 1916, while Mrs. Field was still living, “said executors consented to make an advance as requested by Mrs. Field, to the extent of twenty thousand dollars on condition that such advance should operate as a charge against her, against her estate and against her distributive share in the estate of Miss Von Lingen.” On December 8th, 1916, Mrs. Field died leaving a last will and testament, in which is found the following provision: “I give and bequeath to my beloved husband, Charles W. Field, absolutely and forever, all moneys belonging to me, in my possession, or deposited in bank, whether such deposit be in my name or in our joint names, also all moneys due and payable to me by anyone or from any source whateverMr. Field was appointed executor and to him letters testamentary were granted upon the estate of his wife. On February 15th, 1917, A. Schumacher & Oo., complying with directions received from the executors of the will of Miss Von Lingen, delivered to Charles W. Field, as executor of the will of Mrs. Field, the American securities hereinbefore mentioned, for which Mr. Field, as executor of his wife, gave to the executors of Miss Von Lingen, the following receipt: “1, Charles W. Field, executor of the last will of Alberta Luise Field of Baltimore, Maryland, do hereby admit that 1 have received from Dr.. Eberhard Noltentius, executor of the last will and testament of Marie von Lingen of Bremen, Germany, the sum of twenty thousand dollars ($20,000), equal in German money at the current rate of 68%ths to one hundred and seventeen thousand and one mark and eighty-three pfennigs (Mk. 117001 83/100) as a partial payment on account of the legacy given to said Alberta L. Field under the last will and testament of said Marie Von Lingen. It being understood that said Eberhard Noltenius, executor, shall hereafter pay to me, said Charles W. Field, executor, the balance remaining due *363 to the estate of said Alberta L. Field under her said legacy from said Marie Von Lingen, as soon as the estate of said Marie Von Lingen is finally settled, and the balance, remaining due to said Alberta L. Field is ascertained. It being further understood that in the event the above amount already paid to me shall upon final settlement of said estate of said Marie Von Lingen be shown to be more than the total amount of the legacy due to said Alberta L. Field, then I am to repay the said iSToltenius, executor of Marie Von Lingen whatever amount has been paid to me over and above the full amount due to said Alberta L. Field, or her estate, from the estate of said Marie Von Lingen.” The advancement promised by the executors of Miss Von Lingen to Mrs. Field was regarded, it seems, as embraced in the bequest made to her husband under the terms used “all moneys due and payable to me,” and in his administration account Mr. Field, as her executor, charged himself with said advancement, using this language: “Received of the executor of Marie Von Lingen on account of legacy due to said Alberta L. Field, prior to her death, being money due to her at and prior to her death, plus $8.75 interest, $20,008.75.” And in the same administration account he distributed to himself this amount, and referred to and described it in practically the same language as that mentioned above, without naming or referring to said American securities. The securities after their transfer became the absolute property of the estate of Mrs. Field and were subject to sale or disposal at any time thereafter. In the receipt of Mr. Field, as executor, he acknowledged the receipt of $20,000, and in that receipt it was understood that the executors of Miss Von Lingen were to pay him the balance remaining due to his wife’s estate when finally settled and the amount of such balance ascertained, but if that amount, expressed therein “as already paid,” should be found at the final settlement of the estate to be more than his wife was entitled to as *364 legatee, then he was to repay the executors of Miss Yon Lingen the difference between the amount to which she was entitled and the amount, $20,000, received by him as executor. It is shown, from the facts and circumstances stated, that the transaction mentioned was not a mere transfer to Mrs. Field of said securities, to be thereafter distributed to her in the final distribution of the estate, at whatever they, at such time, might be worth, but, we think, it is clearly shown from the request of Mrs. Field, the transfer of the securities to her estate by the executors of Miss Yon Lingen, the receipt of Mr. Field as executor of his wife’s will, and his treatment of the advancement in the administration of his wife’s estate,, that it was fully understood and agreed by Mrs. Field, Charles W. Field, her executor, and the executors of Miss Yon Lingen, that such advancement was, in effect, a prepayment to her estate of $20,000, with which she was to be charged as legatee in the final distribution of the estate of Miss Yon Lingen. In the former case, the counsel for the defendants, or appellees therein, contended that the estate of Alberta L. Field should only have been charged with the value of the American securities, $20,000, at the rate of exchange current at the time of the transfer, that is, with 117,000 marks, when, in the distribution of the German estate, made by the executors of Miss Yon Lingen on November 1st, 1919, she was charged with the value of said securities, $20,000, at the rate of exchange current at the date of distribution, at which time the German mark had greatly depreciated. This court, in the rejection of the defendants’ contention and in its approval of the method of distribution employed by the executors, throughout its opinion emphasized the necessity of equalization in the distribution of the German estate among all the residuary legatees, saying, as we have already quoted, that “an equalization of distribution could not be accomplished unless equal payments were made to all of the legatees at the same periods, or unless the results of any variation from that method were equalized in the final *365 aceoimting,” and that it was “clear that the advancement in 1917, on account of Mrs. Field’s share, if not subject to later adjustment, gave her a much more valuable portion of the estate than that received by any of the other distributees.” The adjustment therein referred to had reference only to the question there presented, whether, in the final distribution, the estate of Alberta L. Field should be charged with the value of the securities, $20,000, at the rate of exchange in German marks at the time of the transfer or at the rate of exchange at the time of the distribution. It had no reference to any adjustment at the time of the distribution, by which the legacy of Mrs. Field should be charged, for the securities, with a sum less than that agreed upon by the parties at the time of their transfer, for at the time of the decision there was no intimation of any depreciation in the value of the securities. It was not, we think, contemplated by this court that an equalization was to be made in disregard of the express agreement that the legacy of Mrs. Field was to be charged with $20,000, the market value of the securities at the time of the transfer. There was at the time of such transfer a fixed amount in the minds of the parties with which the legacy of Mrs. Field was to be charged, and this amount was not to be affected either by the appreciation or depreciation in value of the American securities in American money. It would seem to follow that, if Mrs. Field’s legacy was to be charged only with the depreciated value of the securities at the time of the distribution, she would, if their value was greater at that time, be chargeable with such appreciation. This could not have been the intention of the parties, when, by the agreement, Mrs. Field’s estate, in the event of her share in the German estate being less than $20,000, was to pay only the difference between that sum and the amount of her ascertained share. She was not by that agreement to pay the difference between the share to which she was entitled and a larger sum caused by the appreciation of the securities. It has been suggested that, if the American securities were not disposed of by the estate of Mrs. Field, or those *366 succeeding her in title, and were held by them at the time of the distribution, then, in ascertaining the share to which Mrs. Field was entitled, the depreciated value of the securities at the time of the distribution should be considered and used, but if it were found that these securities had been sold at an earlier period, then the amount to be considered and used, for the purpose above stated, should be the amount at which they were sold. This was not the express intention of the parties, nor is it we think a logical deduction to be drawn from the facts and circumstances of the case. Whether her estate held the securities and profited by a rise in the market, or lost in a shrinkage of their value, was of no concern to the other residuary legatees, and they should not, in our opinion, be affected thereby. It is, we think, upon the facts of this case, the value of the securities in American money at the time of the transfer and not their value at the time of the distribution that should be used and considered in the ascertainment of the amount of legacy to which Mrs. Field is entitled. The lower court, in its decree, adopted the contention of the defendants, and the amount of overpayment thereby decreed to be paid by the defendants to the plaintiffs was ascertained upon the use of the value of the American securities in American money at the time of the distribution and not at the time of the transfer. In so doing, the court, we think, erred, and we will reverse its decree. In the further proceedings for which the case will be remanded, any advantage which the German legatees may have derived from advancements on their legacies prior to the general distribution of November 1st, 1919, should be ascertained and considered for the purpose of the equalization intended by our former and present decisions in this case. In the prior opinion, after stating that the residue of Mr. Field’s estate, which received under his wife’s will the advancement on her share of the Von Fingen estate, had been distributed under Mr. Field’s will to his brother, W. E. Mason Field, who was not personally served with process, but as a nonresident defendant was only constructively *367 notified of the suit by an order of publication, we said that, while the executors of Air. Field’s will were exonerated, and in fact were not sued, because the claim on his agreement to refund was not presented before the administration of his estate was completed, yet the legatees under his will were not exempted from liability to contribute proportionately to the payment of the claim, if there was no laches in its presentation. That expression in regard to proportionate contributions was intended to refer to the legatees personally served with process in this suit, and leaves unaffected the question as to their right to claim reimbursement from Air. Field’s residuary legatee. Decree reversed with costs, and cause remanded for further proceedings.