Siechrist v. Bose

Page, J., delivered the opinion of the Court. By his last will, admitted to probate on the 29th January, 1876, William Bose bequeathed to Margaret Siechrist the sum of $3,333 for life, and after her death “to be equally divided among her children then living, and the descendants of any who may have died, such descendants taking the portion their parent would have taken had he or ' she been then living. ” The executors, the late Judge Dobbin, and Elizabeth E. Bose (widow of the decedent), on the 25th January, 1877, filed a petition in the Orphans’ Court for Baltimore City, in which, after stating their readiness to pay the said legacy, they prayed for an order directing them to invest the money “ so as to meet the requirements of — 293 — said will and protect the interest of all the parties interested therein.” On the same day the order was passed, directing the executors to invest the sum in United States, State or city stock “in the name of Margaret Siechrist, legatee for life, subject to the provisions of the will of William Bose declared as to the remainder.” Subsequently the executors passed their “ first and final account,” 'in which they were allowed the amount, “ invested under an order of the Orphans’ Court * * for the benefit of Margaret Siechrist for life * * and subject to the provisions of the will of the decedent.” The record shows that in carrying out the requirements of the order of the Orphans’ Court they purchased $2,900 of the Western Maryland City stock, redeemable in 1902, and caused the certificate to be issued “to Margaret Siechrist for life, subject to the provision of the will of William Bose in this behalf.” All interest accruing on this amount was paid until July,- 1878, when, in consequence of the discovery that $1,100 of the stock were part of the “ Bishop forgery ” the city refused to pay interest on that portion of the stock, but continued to pay on the residue. Subsequently, however, the city by ordinance passed in 1882, authorized its Comptroller to issue a new certificate for $1,800 and pay $1,465.76 (this sum being the $1,100 and accrued interest) on the surrender of the original certificate for $2,900. This was accordingly done. On the 9th of May, 1882, the executors reported the facts to the Orphans’ Court. They state in their report that they “ will now hand over to the life-tenant the new certificate for $1,800 and will pay them (sic) the accrued interest which has been paid by the city ; but under the terms of said will of William Bose must reinvest the principal.” In compliance with the order passed on the same day, they invested the amount of principal in their hands in city stock in the manner directed, that is to say, $800 in the name of “ Margaret Siechrist for life, subject to the will of William Bose in this behalf.” In 1890, this stock having fallen due and been called for redemption, — 294 — Margaret Siechrist obtained an order from the Orphans’ Court, permitting her to surrender the certificate and receive the money. The order which was passed on the 27th of September, 1890, does not require her to bring the money into Court, and though she received the check of the city for $800, the record does not show that she has ever made a report of the transaction or re-invested the fund. Upon these facts the children of Margaret Siechrist, with the husbands of her daughters, pray the Orphans’ Court to require the appellee as the surviving executor of the will of William Bose, to show how the legacy in question is invested ; if invested to bring into Court the evidences of the investment; and if not, to bring the money into Court. The answer of Mrs. Bose among other things, sets up the defence, that the said sum has been fully administered and as surviving executrix she has no further concern therewith, and that the Court is without jurisdiction in the premises. The Court dismissed the petition, and from its order this appeal is taken. The principle is well established in this State, that “ Where a legacy consists of money or property whose use is the conversion into money, it is the duty of the executor to invest the same in some productive fund, or it must be put out on adequate securities, and most properly under the direction of the Orphans’ Court or a Court of Equity, so that the dividends or income may be received by the legatee for life, and the principal, after the death of the legatee for life, may be received by the legatee in remainder.” Evans v. Iglehart, 6 G. &. J. 196; Wooten v. Burch, 2 Md. Ch. 196. This duty rests upon the executor, independently of the provisions of sec. 10 of Art. 93 of the Code; it is founded upon the obligations, “ devolving upon the executor with reference to the property in his hands so bequeathed, and to which his assent is necessary to perfect the title.” State use of Dittman v. Robinson, 57 Md. 495. That section, indeed, seems to be an application of the general principle, just stated, to cases where it is necessary for — 295 — the executor to retain in his hands the personal estate or any part thereof, “ as where money or some other thing is directed to be paid at a distant period or upon á contingency.” In a case where money was bequeathed to James Hewlett, upon condition he should pay to Jack Hewlett a particular sum, when the latter should arrive at the age of twenty-five years, it was held not to be within the section, because the will in terms or by implication, did not require that the fund should remain in the hands of the executor, but was expressly bequeathed to James. State, &c. v. Hewlett, 48 Md. 144. The fundamental idea that underlies the rulings of the Court, as well as the main design of the statute, is the preservation of the fund, so as to secure it to those who under the will or by law shall be thereafter entitled to it. “ To this end,” to quote from the opinion of the Court, in Gunther & Canfield v. The State, 31 Md. 30, “it is made the duty of the executor or administrator having the money or property in hand, to apply to the Court for direction in the premises and on such application the Court is clothed with full power to decree or direct in what manner it shall be disposed of, to effect the contemplated purpose.” Even if it could be held, that this case is within the provisions of the section, it would not follow therefrom, that the safe keeping of the investment necessarily devolved on the executors. The section does not so provide; on the contrary, as was said by Judge Miller in Gunther & Canfield v. State, supra, “the mode of disposition for safe keeping and security is not prescribed, but left, in each case, to the sound discretion and judgment of the Court.” But we do not think the provisions of sec. 10 of Art. 93 apply to this case. Those are applicable, as already has been said, to cases where the money or some other thing is to be paid at a distant day or upon a contingency and must either by the terms of the will or of necessity remain in the hands of the executor. But the will of Mr. Bose imposed no necessity upon the executors to retain the fund or to secure the payment of the — 296 — interest to the legatee for life; what they were bound to do was to invest the fund in such a manner as to secure to the legatee for life the interest or dividends, and to the remainder legatees, the principal fund, when they became entitled to receive it. Where, under the terms of the will, there are active duties to be performed with reference to a legacy and no one has been designated to perform them, in such case, the performance of such duties devolves upon the executor, and he cannot divest himself of them while holding a representative relation to the estate, nor can he be divested of them by order of the Orphans’ Court. Hindman v. State use of Tosh, 61 Md. 475. In this case it was the duty of the executors to invest the fund in accordance with the directions of the Orphans’ Court, and when so invested no right remained in the executors to retain it. The bequest was to Mrs. Siechrist for life; the testator intended it should be her property for that period ; she therefore was entitled to have the possession of it for that period, on such terms as would protect the interests of those who were also interested in the fund. What she did with it after she received it was a matter that could not concern any one else than those who were to take the fund at her death. If her treatment of it was such as to jeopardize its safety, a Court of Equity on proper application has full power to require such security to be given as might be needed. The executors fully discharged their duty in making the investment according to the requirements of the order of the Court. They were acting, in so doing, under the authority of a Court of competent - jurisdiction. Gunther & Canfield v. The State, supra. And are therefore now fully protected by its order. When the investment was made, and the allowance therefor had passed the Court, the estate so far as this fund was concerned was fully administered, and -all rights of the executors over it terminated. In the case of Myers v. The Safe Deposit, &c., 73 Md. 415, a testator gave the residue of his estate to his widow for life, and at her death to pass to such of his chil — 297 — dren and grand-children as she should appoint by will, and in default of such appointment to his children and descendants-in the same manner as if he had died intestate. The widow who was the executrix, passed an account in which she was allowed “ for the residue of the estate detained by her as widow of the deceased for the purposes and subject to the conditions set forth in the will, &c.” The Court held, that “ that was a most effectual way of making the final distribution. Thereafter she held, not as executrix, but as tenant for life * * * * the estate was entirely closed and her administration was at an end.” Other cases could be cited to the same effect. (Decided March 3rd, 1898). It is not important for the purposes of this case to discuss the effect of the subsequent occurrences disclosed by the record, in reference to the fund in question. We are of opinion, that after the investment of the money in compliance with the order of the Court, and the allowance in the account of the executors of the amount so invested, the administration terminated, and the executors became discharged from all further liability as to the legacy. Margaret Siechrist then held the fund as tenant for life, and the duty of protecting the fund was upon her and not upon the executors. The order must therefore be affirmed. Order affirmed.