Carey v. Reed

Roberts, J., delivered the opinion of the Court. This appeal is taken from an order of the Orphans’ Court of Baltimore City, passed in the matter of the estate of Anna Reed, deceased, in course of settlement in said Court. The deceased was an aged lady of eighty-six years, possessed of a large estate, qnd died about March 5th, 1895, leaving a last will and testament, whereby She bequeathed a number of pecuniary legacies to the appellees and others, and left the residue of her property to Charles R. Carey, son of the appellant, and appointed the appellant her executor, excusing him from giving bond. The will was duly probated and letters testamentary granted to the appellant on March 20th, 1895, who gave bond in the penalty of $500. About June nth, 1895, the appellant, as executor, returned his inventory of the personal property under oath, showing that it amounted to $33,960.30, and an inventory of the real estate valued at $ 11,000. On July 5th, 1895, Charles J. Carey (the executor), and appellant, made an assignment for the benefit of his creditors. On the following day, by leave of the Court below, he returned what he alleged to be an amended inventory of the goods and chattels, &c., in which he states, that “ In the original inventory filed in this estate on the 1 ith of June last, certain securities were included which were not the property of deceased, and for the purpose of correcting — 392 — said error this amended inventory is returned.” He then enumerates in said inventory certain coupon bonds, stocks and cash, amounting to $15,462.46, and swears that it is a true and perfect inventory of all and singular the goods and chattels of said deceased. After the appellees had become aware of the misconduct of the appellant in his management of the estate of his testatrix on the 22nd of July, 1895, they filed in the Court below a petition setting forth their grievances and praying that he be compelled to give new security, and failing to do so, that his letters be revoked and a new administrator with the will annexed be appointed. On the same day the Court, in compliance with the prayer of this petition, ordered the appellant to give a new bond in the penalty of $75,000 within one week, provided a copy of the order be served on him within three days, and further, that unless he gave said bond within the time limited, his letters should be revoked. The copy was served on the appellant on the same day with the passage of the order. And again, when called upon by certain of the legatees for information concerning the settlement of the estate, he deliberately assured them that the estate would amount to $120,000 or $130,000. When his attention was subsequently called to this statement, he said under oath that he did it to mislead Mr. Reed, one of the appellees, and that the statement was not correct, and he further admitted that the first inventory was not correct, but that the second inventory filed was a correct statement of the personal property belonging to the estate at the time of the death of his testatrix. Whilst this may or may not be true, the assets, in part, making up the second inventory were in a somewhat unfortunate state of deposit, for assets belonging to an estate in course of settlement. As for instance the appellant. had hypothecated, with the Eutaw Savings Bank, seven of the bonds mentioned in said second inventory, as collateral security for two loans, which he had personally negotiated with said bank for the total amount of seven’thousand dollars, and — 393 — deposited with the Provident Savings Bank, for a like purpose, one more of said bonds, for a loan of $1,000, making a total of $8,000, which he swore to be part of the assets of said estate, and which were in the hands of the two banks to secure his individual debts, at the time he returned his inventory. The appellant answered the last mentioned petition admitting most of the material allegations contained therein, but denying the jurisdiction of the Court below to pass upon the questions at issue therein. We will later on give attention to these questions. It is a most remarkable fact, yet strictly in keeping with the other facts of this case, that the testatrix had scarcely been deposited in her last resting place, before the appellant had announced his purpose to avoid the payment of the collateral tax due the State of Maryland, by failing to report to the Court, the amount due his son, as the residuary legatee, and which the appellant estimated as being about $80,000. • It is very clear, then, that this appellant executor had very vague notions as to the binding effect of an oath, and that when he swore, “ to diligently and faithfully regard, and well and truly comply with the provisions of the laws, imposing a tax on commissions allowed to executors and administrators, and of the laws imposing a tax on collateral inheritance distributive shares, and legacies, to aid in paying the debts of the State,” he seemed to think that it was his duty as executor to avoid the payment of such taxes, doubtless for reasons quite apparent in the record that he had debts of his own, which required prompt attention. After the foregoing proceedings were had in the Court below, testimony was taken, and hearing had of the matter of the petition of the appellees asking that the appellant be required to give new security, upon the appellees showing, as required by Art. 93, sec. 41, Code, that the appellant was wasting the assets of the estate, and that the assets of the estate were in danger of being lost. It can, however, accomplish no useful purpose in the determination of this case, to follow up the further details of the unworthy acts — 394 — and doings of the appellant, which clearly indicate his absolute unfitness for the office of executor from which he has been very properly removed. The sole question arising on the testimony in this cause is, had the Orphans’ Court, under the circumstances of this case, authority to remove the appellant ? If we are to adopt the contention of the appellant concerning the jurisdiction of Orphans’ Courts as exercised in the determination of the case below, we would not only be compelled to declare that the Court was in error in what it did, but that it was shorn of any jurisdiction to enforce its orders, and decrees based upon facts fully recognized in the law as peculiarly within the province of its determination. When it is said that the Orphans’ Courts'of this State can exercise only a special and limited jurisdiction, the Legislature did not say, nor mean to say, that whilst these Courts may exercise jurisdiction of particular subjects-matter, they are not, however, authorized to enforce their judgments in dealing with such subjects. This, of course, cannot/be true, for it is a necessary incident of the powers of all Courts, and that too without specific statutory enactment, that they possess inherent control over their own officers, and the right to make effective their own judgments, under circumstances similar to those stated in this case. Without extending the argument to unnecessary length, it will be ascertained from the statement of facts herein, that at the time of the appellant’s removal from the office of executor, he was before the Court on several charges. He had on May 29th, 1895, returned under oath, one inventory in which he had charged himself with $33,960.30, and on 7th of July, 1895, he returns, under oath, a second inventory, which he claims as “corrected,” in .which he charges himself with $15,462.46, less than one-half of the first inventory, and as already stated, more" than one-half of the second inventory was, at the time he swore to the same, hypothecated to secure his individual indebtedness. Furthermore, the appellant was, on the 22nd of July, 1895, placed under — 395 — an order of the Court below, to give new security by a day named. This he failed to do. In fact, in so far as the duties of his office as executor are involved, he has failed to exhibit in a single instance, wherein he had a just and proper conception .of his responsibilities or their proper discharge. It will be found from an examination of the various decisions of other States, construing statutes establishing Orphans’ Courts, or Courts of like character, and defining their jurisdiction, to be as Mr. Schonler in his Work on Executors and Administrators, § 154, says: “It is perceived that statutes of this character confer upon the Court, and most appropriately too, a broad discretion as to the various instances which may justify removal. Whenever, from any cause, the executor or administrator becomes unable to perform properly the substantial duties of his office, he may be regarded as evidently unsuitable. Unsuitableness may be inferred also from wilful misconduct or even from obstinate persistency in a course plainly injurious to the interests of the estate, and impairing its value; and in fact, as a rule, any unfaithful or incompetent administration which will sustain an action on one’s probate bond, should be sufficient cause for his removal. Causes of unsuitableness operating at the time of the appointment, but disclosed more fully in the course of administration, and upon experiment, may afford the ground of one’s subsequent removal from office ; the point here being, not that the insuitableness operated when the appointment was made, but that it operated at the time of the complaint.” The appellees have alleged in their petition, .verified by affidavit, that the assets of the estate in the hands of the appellant were in danger of being lost, wasted or misappropriated, and it appearing to the Court that danger did exist, it thereupon passed an order giving him a week to file a substantial bond. He did not comply with this order, but filed an answer denying the jurisdiction of the Court. The Court, without enforcing its order, set a day for the hearing, and the matter of the petition and answer thereto — 396 — were heard upon full testimony and argument. Under these circumstances we think the Court below had express authority under Art. 93, sec. 41, of the Code, to revoke his letters, if the proof warranted its action in so doing. In conclusion we entertain no doubt about the correctness of the action of the Court below in removing the appéllant from the office of executor, which was done by the passage of its order of August 9th, 1895. The Legislature, by the language of Code, Art 93, section 230, which declares that: “ The Court shall have full power * * * * to secure the rights of orphans and legatees, and administer justice in all matters relative to the affairs of deceased persons,” meant to enlarge its discretion and relieve it of a too narrow construction of its powers. So that in Cox. Ext. v. Chalk, 57 Md. 570, in a case where an executrix was charged with having neglected her duties, &c., the Court said, “ that the charges set forth in the petition, if sustained by proof, are sufficient in our opinion to justify the Orphans’ Court in removing the ■ appellant from the office of executrix.” In that case the proof was not before the Court, but in this case the proof is before us in its most amplified form. For reasons stated we affirm the0 order of the Court below in removing the appellant from the office of executor of Anna Reed, deceased. (Decided January 9th, 1896.) Order affirmed with costs.