Rhodes v. Robie

Mr. Chief Justice Alvey delivered the opinion of the Court: 1. With respect to the first of these assigned errors, that of the right of the husband to curtesy in the land devised to his wife, there would seem to be no ground for serious question. It is contended on the part of the appellees that — 316 — the husband never acquired an estate by the curtesy, because his wife was never actually seized of the land, and her title being incomplete, the right by the curtesy did not attach in the husband. But the principle of non-seisin of the wife has no application to this case. It is very true, there can be no curtesy of a remainder or reversion. There are, says Sir William Blackstone, (2 Comm. 127,) “ four requisites necessary to make a tenancy by the curtesy: marriage, seisin of the wife, issue, and death of the wife. 1. The marriage must be canonical and legal. 2. The seisin of the wife must be an actual seisin or possession of the lands; not a bare right to possess, which is a seisin in law, but an actual possession, which is a seisin in deed. And, therefore, a man shall not be tenant by the curtesy of a remainder or reversion.” And this principle is fully supported by Lord Coke, in his Commentary upon Littleton. Co. Litt. 29, 30. Coke, in the passage just referred to, says, that the words, “ seised in fee,” mean a seisin in deed, not a seisin in law; and therefore a man shall hot be tenant by the curtesy of a bare right, title, use, or of a reversion or remainder expectant upon an estate of freehold,' unless the particular estate be determined or ended during the coverture. In this case, the particular estate of freehold, that of the life estate devised to the wife of the devisor, terminated in 1877, in the lifetime of Mrs. Rhodes, and thereupon the latter became seised in deed or in fact in fee as tenant in common, and the husband, upon the death of the wife, having had issue, became seized as tenant by the curtesy. The possession by a cotenant in common is sufficient to give curtesy to the husband of a tenant in common, the entry and possession of one being the entry and possession of all. Adams on Eject. 54; 4 Kent Comm. 387; 5 Burr. 2604; 17 Md. 442, 451. It is clear, however, that, under the facts and circumstances of this case, as disclosed by the equity proceeding, — 317 — heretofore referred to, the husband of Mrs. Rhodes, the present appellant, is completely estopped from asserting any claim as tenant by the curtesy, as against the land in the possession of the purchaser, or those claiming under him. He has held himself out as having no such right; and whether his conduct was the result of ignorance or otherwise is quite immaterial. But, in respect to the proceeds of the sale of the land, and as against the rights of the children of Mrs. Rhodes, a different question is presented. This question will be adverted to hereafter. 2. As to the action of the court in setting aside and vacating the first account of the appellant, approved and passed by the court, November 8,1889, we think there was error. It is true the principle has long since been settled, that accounts stated in and passed by the Orphans’ Court, under the Maryland Testamentary Act of 1798, of executors, administrators and guardians, are but prima jade evidence of their correctness. But when they are impeached, the onus is upon the party impeaching them to show affirmatively wherein they are incorrect. This principle has been laid down in many of the Maryland cases. Spedden v. State, 3 H. & J. 251; Gist v. Cockey, 7 H. & J. 134; Owens v. Collinson, 3 G. & J. 37. And where an account, approved and passed by the court, has been standing for several years unquestioned, there must be clear proof of its incorrectness to justify its vacation and restatement. In the case of Watkins v. Bevans, 6 Md. 489, where an executor’s account was of several years’ standing, and the balance due the estate by it had been distributed, though not paid over, it was held to be error in the Orphans’ Court to vacate the account without evidence of its incorrectness, and again bring the balance into the estate. The presumption is that the account is correct, until that presumption is overcome by sufficient affirmative proof offered by the party entitled to impeach the account. In this case there was no such proof offered, and the account ought not to have been- disturbed — 318 — upon the simple application of one of the parties concerned for further accounting by the guardian. By the settlement of the account the guardian himself would be precluded, unless upon grounds of mistake, from asking for the vacation or modification thereof, because he had not been credited therein with the rents received and the interest upon the purchase money awarded to his children down to the date of that account. He has not attempted to disturb the account upon any such ground, or upon any ground whatever. 3. We think there was also error in requiring the appellant to be charged with the several amounts mentioned in the order of the 14th of February, 1896, with interest thereon, as directed by that order, and as charged in the account that was approved and passed by the court. We think, in view of the facts of this case, and in consideration of the fact that the guardian was entitled to the interest on the purchase money for the land of which his wife died seized, for his life, in lieu of his right as tenant by the curtesy, that no interest that has accrued on the proceeds of sale, since the date of the passage of his first account, should be charged against him. Upon fair equitable grounds he is entitled to this exoneration. Whether he should be allowed any sum for the maintenance and education of his wards, out of the principal sums to which they are entitled, depends upon his ability and circumstances in life to support them. A father is bound to support his own children, and he cannot, as a general principle, when guardian, claim the right to use the income of their property for that purpose, much less to disturb the principal. But there may be circumstances where both income and principal may be applied to such purpose. Schoul. Dom. Bel., Sec. 339. In this .case, however, there is not evidence sufficient to enable us to pass upon that question. The subject, so far as the jurisdiction of the Orphans’ Court can be exercised, is regulated by the provisions of the statute. Act 1798, Ch. 101, Subch. 12, — 319 — Secs. 10,13. And as to the allowance of commission to the guardian and the amount thereof, that is a matter that rests in the sound discretion of the court below. 4. With respect to the charge in the account of $766.35, as due Margaret A. Carrington, one of the children, we think there was error in that. This child had married John Carrington, and had attained the age of about twenty-six years, when she, with her husband, on January 20, 1896, received of her father as guardian the sum of $567.46, declaring the same to be “ in compromise and full settlement of whatever amount may be due me from him, and I hereby release and discharge him from all further liability or accountability to me whatever.” This release was concurred in by the husband, and executed by both husband and wife, under their hands and seals. The money came to Mrs. Carrington as her separate estate under the Married Woman’s Act of April 10, 1869, and she was entirely competent to contract in respect to it, and she has never attempted in any manner, so far' as the record discloses, !to question or impeach that release. We think it must be taken as conclusive as to Mrs. Carrington’s interest. 5. There is still another assignment of error, and that is upon the order of the court of the 27th of March, 1896, ordering money to be brought into court by a trustee, and the sureties on the bond of the guardian. The order is, “ that Henry M. Baker pay into the registry of this court the sum of $1,135.96, being the amount alleged to be held by him as trustee of the proceeds of the sale of premises No. 223 Twelfth street southeast; and that said Baker pay into the registry of the court the further sum of $767.61, as surety on the bond of the said guardian, and that Louis K. Beatty and William W. W. Nally, as sureties on the bonds of said guardian, are hereby directed each to pay into the registry of the court the sum of $767.61; and this order shall be complied with in twenty days; and a copy of this — 320 — order to be served upon each of said bondsmen within five days from this date.” We are not aware of any law, statutory or of any other kind, that authorizes an order of this character to be passed and enforced by the court exercising the jurisdiction of the Orphans’ Court, as against sureties on a guardian’s bond. The parties intended to be affected by the order were not before the court, and were not parties to the proceeding. The order of the court could not be enforced by execution, nor could process of contempt be issued thereon and enforced against the parties. They have their right to contest, in due form of law and in the proper tribunal, their liability for the amounts ordered to be brought into court. Until they have that right they cannot be subject to execution or contempt by a court of limited jurisdiction, such as the Orphans’ Court. Alexander v. Bryan, 110 U. S. 414. It follows that the orders of the 17th of January, 1896, and that of February 14, 1896, and also the order of the 25th of March, 1896, approving and passing the account stated under the preceding orders ; and the further order of March 27, 1896, directing the money to be brought into court, must be reversed, and the cause be remanded to the court below, that proceedings may be had not inconsistent with this opinion; and that the cost of these appeals be paid out of the fund in the hand of the guardian ; and it is so ordered. Orders reversed and cause remanded.