Crothers v. Crothers , 121 Md. 114 ( 1913 )

Charles C. Crothers died in 1897 in Cecil county leaving a last will, by which he named his brothers, Augustus C. Crothers, of Harford county, and Austin L. Crothers, of Cecil county, his executors. The will was admitted to probate and letters testamentary were issued by the Orphans' Court for Cecil County, to the executors named, in November, 1897. No further proceedings appear to have been had in the Orphans' Court in connection with the estate until the year 1912, when a petition was filed by Augustus C. Crothers embodying the following allegations:

That no inventory of the estate had ever been returned by the executors and no account passed of their administration of the estate; that the active administration of the estate had been entirely confided by the petitioner to his co-executor, Austin L. Crothers, who died in 1912, testate, naming his nephews, Emerson R. Crothers and Omar D. Crothers as his executors, who had qualified as such; that Austin L. Crothers in his lifetime gave the petitioner little or no information concerning the estate of Charles C. Crothers. The petition then concludes with a prayer that the Court "pass an order commanding and directing the said Emerson R. Crothers and Omar D. Crothers, executors of Austin L. Crothers, deceased, to file in this Court a full, itemized and detailed statement of the assets belonging to said estate; the amount that has been distributed, and the amount or amounts still due and owing any of the devisees or legatees under the will of the late Charles C. Crothers, and also directing the executors of the said Austin L. Crothers, deceased, to pay over to this petitioner any and all sums of money remaining in the hands of their testator at the time of his death belonging to the estate of the said Charles C. Crothers, deceased, in order that your petitioner may be enabled to bring the same into this Court and distribute it under its order."

In response to this the executors of Austin L. Crothers did, in August, file an inventory and a full itemized account, which showed the estate of Charles C. Crothers overpaid to the amount of $1,874.05. Thereupon the petitioner, one of the original executors, filed exceptions "to each and every item for paymentsand allowances," set forth in the account as rendered and excepted "especially to the item of payment of legacy of thisexceptant of thirty-five hundred dollars, less collateral inheritance tax, but avers and alleges that the same has not been paid, and the other items for which credit is claimed in said account no vouchers have been presented to this Court for same."

After these exceptions had been filed the executors of Austin L. Crothers filed an amended answer in which they set up a lack of jurisdiction in the Court to entertain the petition, and apparently the Orphans' Court adopted that view, as it dismissed the petition.

It must not be lost sight of that the deceased, Austin L. Crothers and the petitioner occupied the relation to this estate of co-executors, and that "co-executors are regarded in law as an individual person, and by consequence the acts of any one of them in respect to the administration of the effects are deemed to be the acts of all; for they have joint and entire authority over the whole property," Watkins v. Shaw, 2 G. J. 220, and the possession of one executor is the possession of all,Montgomery v. Black, 4 H. McH. 391, and whatever powers and duties existed in the executors and remained unexecuted or unfulfilled passed to the survivor, Code (1912), Article 93, § 296. When, therefore, an executor rests inactive for a period of fifteen years and until his co-executor has died, before making any move, so far as the record discloses, to expedite the administration of an estate for which he was equally responsible with his co-executor, he is not in a position to commend himself especially to a Court as an injured party. He makes no allegation of waste committed or assets concealed by his co-executor, and for that reason the petition filed by him cannot be treated as an application by one executor against his co-executor upon either of these grounds.

Because of the fact that in law two or more executors of a deceased individual are regarded as one person, and upon the death of any, the survivors or survivor succeeds to all powers and duties theretofore exercised by all of the executors to whom letters were granted there are no express provisions in the Code relating exclusively to the rights of one executor against the personal representatives of his deceased co-executor. The appellant contends, however, that under the rules of construction the terms executor and administrator are virtually interchangeable, and that inasmuch as by section 72 of Article 93, Code (1912), it is made the duty of an administrator to deliver over to the administrator d.b.n. of the original decedent all assets of such decedent remaining unadministered in the hands of the deceased administrator, and by section 73 of the same article the administrator of a deceased administrator may be compelled to return under oath a list of the notes, bonds, accounts and money remaining unadministered, and by section 11 it is made the further duty of the administrator of a deceased administrator to render an account of the administration of such deceased administrator, the same right exists in favor of a surviving executor as against the executors of his deceased co-executor. The cases are far from being parallel for reasons already indicated, yet much support for the contention can be found in Baker v. Bowie, 74 Md. 467.

The question raised by this appeal is one of jurisdiction. The prayer of the petition was that the executors of Austin L. Crothers should file in the Orphans' Court for Cecil County a "full itemized and detailed statement of the assets belonging to said estate, the amount that has been distributed and the amount or amounts still due and owing to any of the devisees or legatees," and "pay over to the petitioner any and all sums of money remaining in the hands of their testator." If the appellees had desired to raise the question of the jurisdiction of the Orphans' Court to entertain such a petition, then was the time to have done so. But instead of doing so, by the filing of an inventory and rendering of an account they waived any question of jurisdiction. That was first attempted to be set up after exceptions had been filed to the account rendered, and without seeking to withdraw the inventory and account previously filed, and which were on their face a full and complete compliance with the petitioner's demand. Moreover, while Orphans' Courts are Courts of limited jurisdiction they are invested with the powers to direct the accounting of executors and administrators, superintend the distribution of estates of intestates and administer justice in all matters relating to the affairs of deceased persons, Code (1912), Article 93, § 235, and this language was held to vest in Orphans' Courts powers adequate to protect the interest of those concerned in the faithful performance of the duties of an administrator. Lee v. Price, 12 Md. 256; Muncaster v.Muncaster, 23 Md. 288; Cummings v. Robinson, 95 Md. 87. In the present case the petitioner was not only an executor, but a legatee as well, and under the consistent interpretation given to the statute, it must be held that the Orphans' Court had ample jurisdiction to entertain the petition and to hear and determine the exceptions filed to the account. This must not be interpreted as meaning that the petitioner had the right to have turned over to him the vouchers for the payments made by Austin L. Crothers. In many, in fact in most instances, such would be the proper course, but in this case the petitioner has taken a position antagonistic to his deceased co-executor, denying each and all of the payments claimed to have been made by him. Under such circumstances the executors of the estate of the deceased executor are entitled to have and retain the vouchers for payments actually made, as a matter of protection to their estate, subject to the right of having them produced in the Orphans' Court at any hearing upon the exceptions to the account rendered by them.

For the reasons indicated the order of the Orphans' Court for Cecil County must be reversed and the cause remanded for further proceedings.

Order reversed and cause remanded for further proceedings,with costs to the appellant.