State v. Robinson

Irvins, J.,

delivered the opinion of the Court.

There are two appeals in this record, but the first was merged in the second, and but one opinion is needed. The record shows, that on the 29th of November, 1865, letters testamentary c. t. a. were granted by the Orphans’ Court of Baltimore City to Susan Gregory and John B. Gregory, upon the estate of William Gregory, and a testamentary bond with securities was executed, approved and filed; and that on the 3rd of May, 1872, another testamentary bond with other securities upon the same estate was executed, approved by the Court and filed by the same executors. When this bond was taken, letters of administration already granted were not revoked, and new ones granted; and it does not appear, except by inference, from the bond’s approval, that it had been required by the Court. John B. Gregory, one of the executors, died, and on January 12th, 1878, Susan Gregory, surviving executrix, filed her only administration account. Subsequently, her letters testamentary were revoked, and James W. Dittman (the equitable plaintiff in this suit,) was appointed administrator de bonis non c. t. a. of Wm. Gregory, and was by order of the Orphans’ Court directed to sue the bonds of the executor. This suit was brought in pursuance of that order.

The declaration alleges, the probate of Wm. Gregory’s will, the grant of letters testamentary to the executors, John B. Gregory and Susan Gregory, and the execution of the bond sued on, dated the third day of May, 1872, which is fully set out. In assigning the breach, it is alleged, that the executors returned an inventory of the estate and assets of the deceased, “ which consisted in part of money and of certain bonds issued by the United States Government, commonly called seven-thirty bonds, and of certain leasehold property,” amounting to six thousand dollars. It alleges, an order of the Orphans’ Court for a sale of the leasehold property upon the appli *494 cation of the executors ; its sale for thirty-six hundred dollars ; the transfer of the same to the purchaser ; the death of John B. Gregory ; the accounting by the surviving executrix in the Orphans’ Court, whereby $5313.74 appeared as remaining in her hands dué the estate. It alleges, the petition of persons interested in the estate praying that the executrix be ordered to bring the assets into Court, and the answer of Susan Gregory, executrix, admitting her inability to do so, and her refusal to do so ; the subsequent revocation of her letters, and the grant of letters to the equitable plaintiff as administrator de bonis non, with a copy of the will annexed. It alleges, an order on the late executrix to deliver up by a specified day to the equitable plaintiff as administrator de bonis non, and her failure to comply with the order. It then alleges, the conversion, of the assets to their own use, by the late executors, and total failure to discharge their duty whereby action had accrued.

The defendants pleaded performance — and afterwards two additional pleas — 1st, that prior to the giving the bond now sued on, the executors, Susan and John, had given other securities upon another bond, which bond being still in force, and the appointment of the executors being unrevoked, and no demand for counter security, the bond sued, on was given. 2ndly, that the executrix, Susan Gregory, was not required by law to bring in the assets of the estate, because, by the will of Wm. Gregory, referred to in the declaration, she was entitled to all the assets absolutely, except the proceeds of the Hollins street leasehold property, to which she was entitled as life tenant.

To this second additional plea, the plaintiff demurred, and being overruled, the first question for review is presented by it. Notwithstanding the truth of the facts pleaded, which the demurrer conceded, they interposed no bar to recovery; and the learned Judge, erred in suppos *495 ing they did, and therefore overruling the demurrer. Judge Dorsey, speaking for this Court, in Evans vs. Iglehart, 6 G. & J., 196 , says: that “where the surplus bequeathed for life consists of money or property, whose use is conversion into money, it is the duly of the executor to invest the same in some productive fund, or it must he 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 he received hy the legatee for life, and the principal, after the death of the legatee for life, may he received by the legatee in remainder.” Chancellor JoirNSOtr, in Wootten vs. Burch, 2 Md., 190 , says: it “is no longer an open question in Maryland, that such is the law.” These decisions make no reference to the Act of 1798, eh. 101, sub-ch. 10, sec. 11, which has been codified as sec. 10, of Art. 98, of the Code, of Public General Laws; but seem to put the decision upon the general duty devolving upon the executor with reference to the property in his hands so bequeathed, and to which his assent was necessary to perfect the title. , Miller and Mayhew vs. Williamson, 5 Md., 219 , recognizes this as the law, where executors hold funds bequeathed lor life, and then over in remainder. It makes no reference to the Act of 1798, but relies on the decisions just cited. It would seem as if that sec. of 1798^ ch. 101, had not been regarded as imposing the obligation, but had been enacted ior other contingencies ; and that this duty existed independent of its provisions. The case of Rieman vs. Peters and Wife, 2 Md., 104 , is rested on that section; but the circumstances of that case, were different from this, and from the other cases cited. In that case, an annuity was directed to be paid the widow, during life or widowhood, in monthly payments, from testator’s decease, ‘and made the whole reside of the estate liable for that charge_, and further directed the executors to keep the the estate “together,” for the purpose of carrying out his *496 wishes, thus bringing it within the provisions of oh. 101, sub-ch. 10, sec. 11, of the Acts of 1798, which is now sec. 10, of Art. 93, of the Code of Public General Laws. In Hewlett’s Case, 48 Md., 142 , this Court determined that the will created a charge on the property bequeathed, and the duty imposed by sec. 10, of Art. 93, did not devolve upon the executor; and that seétion did not apply.

If the decisions in Evans vs. Iglehart, and Wootten vs. Burch, had been placed upon the provisions of that section, it would be clear that the definition of the meaning of that section, given by the Court in Hewlett’s Case, was inconsistent with those cases, and was too restricted.- But in view of all the decisions, we think the statement in Hewlett’s Case, of the meaning of that section was correct ; and that this case does not fall within it, and is not controlled by it. The rule of duty which is to be applied in this case, exists independent of sec. 10, Art. 93, and is distinctly stated in Evans vs. Iglehart. It is a rule which requires the executor to protect the interests of the legatee in remainder, by procuring an investment of the fund to be enjoyed for life by one, with remainder over to another, ■so that the legatee for life may receive the income, and the legatee in remainder, ultimately and certainly may •come into the enjoyment of the fund. Williams on Executors, 7 th Edition, (English,) 1390-1396; Howe vs. Lord Dartmouth, 7 Vesey, 137.

To the extent, that Susan Gregory was not absolutely •entitled to the funds in her hands as legatee under the first clause of the will, it was her duty to have caused the funds to be invested; and if the same were not invested, but remained in her hands, or had been misapplied or •squandered, the new administrator d. h. n. c. t. a. properly ■clothed with authority to sue, could recover from her and her securities, for the purpose of doing what the removed •administrator had neglected to do. The overruling of the demurrer to the plea, thus pleaded, (which conjoined *497 the absolute rights of Susan Gregory, and her life interests in the same plea,) would have heen error, if the declaration of the plaintiff had been free from infirmity. The demurrer compels us to a critical examination of the narr., and we find it defective in omitting a fact absolutely necessary to the plaintiff’s right to sue. It is alleged in the narr. that the executrix who was removed, was ordered to pay over to the administrator de bonis non c. L. a. the funds in her hands, and she refused to do so. But it does not state that the Orphans’ Court directed this suit to be brought on her bond. This was a fatal omission, no matter what, the fact might be. Sec. 243, of Art. 93 of the Code, which provides for the appointment of a new administrator upon the revocation of letters already granted, provides for the order to deliver up, which is alleged in the narr.; and also provides the mode for enforcing obedience. If, authorizes “an attachment and sequestration ” from the Court, and says the Gourt “ may also direct, to be put in suit the administration or testamentary bond of such executor or administrator whose letters have been revoked.” It gives no right to the newly appointed administrator to sue of his own accord. The Court was authorized to direct it, if necessary. The attachment and sequestration might make that unnecessary. If the administrator had the right to exercise his judgment about it, he might he prosecuting a suit, while the Gourt was pursuing the party by attachment and sequestration of his property. That he had no right to sue without such order, has been expressly decided by this Court in the case of Thomas R. Johnson, Adm’r d. b. n. of Rinaldo Johnson vs. Farmers’ Bank of Maryland and others, 11 Md., 412 . In Dorsey vs. The State, use of Pannell, 4 G. & J., 477, this Court said, “whatever is necessary to give a plaintiff a right to sue must he averred in the declaration ; and it is not sufficient to show it in evidence alone, as recovery must always he had on the pload *498 ings.” “ Otherwise he does not show that which is a pre-requisite to his title to sue. and without which he cannot he rectus in curia. It is just as necessary as an averment of performance of a condition precedent is in a declaration in an action upon a covenant.” In that case there was an omission, in the narr. of a creditor in a suit on the administration hond, to state that there had been a non est against the administrator in his county, ora nulla bona on a fi. fa. on judgment against him, which the statute required to justify a suit on the bond. This case is .entirely analogous. The statute gives to the Orphans’ Court power to direct the payment over, by the removed administrator to the new one, and to enforce obedience by order of sequestration, attachment for contempt, and to direct suit on the bond.

In West vs. Chappell, 5 Gill, 228 , the Court, in construing this Act of Assembly determined that it did not vest the title in the newly appointed administrator (d. b. n.,) nor give him the right of possession without an order of the Orphans’ Court. The case of Johnson, Adm’r d. b. n. &c. vs. Farmers’ Bank of Maryland, 11 Md., already cited, decides that the right to bring an action for the recovery of the property, depends entirely on the order of the Orphans’ Court. In the case of The State, use of James B. Green, Adm’r d. b. n. of Arthur McCourt vs. Emily A. Hart, Ex’x of Samuel Hart, p. 234 ante, there was a demurrer to the declaration because of the omission to allege in the narr. the order of the Orphans’ Court to pay over ; and this Court said it was a fatal omission. As we have already stated, the Court was to determine how that' order was to be enforced, and the methods of enforcement were set out in the statute. The direction of suit' on the bond was one of those methods at the command of the Court. But the administrator d. b. n. could not resort to it without the Court’s order; therefore, for the reason set out by the authority of the cases cited, it was *499 necessary to allege an order of the Court to sue, in the narr. It appears in the evidence that such order was in fact obtained ; hut the case was tried on demurrer first, and it did not then appear, as it ought to have done in the pleadings. Appellant’s counsel evidently thought it was so alleged. He so states in his brief in this Court; but inspection shows he was in error. Upon a remand of the cause, which will be ordered, leave to amend can he obtained before the new trial proceeds.

It appears from the bill of exceptions, that it was in evidence, the executors had filed an inventory shortly after administration, amounting to §5363.39. The inventory included a house and lot, (leasehold property,) on Hollins street, appraised at §3000, and §2000 of U. S. bonds, proceeds of leasehold property sold by testator in his life-time, and after making his will, the purchase money of which in part remained unpaid at his death, and was collected by the executors, and invested in these United States bonds. It was 'also in evidence, that the Hollins street property was sold by the executors under an order of the Orphans’ Court for §3600, which sale was ratified by the Court; also account of Susan Gregory, surviving executrix, dated !2th January, 1878, wliicb concludes thus: “Balance due the estate, consisting of, viz., §2000 U. S. 7-30 bonds — cash due as interest by E. T. Miller, §56.00, purchase money from sale of Hollins street bouse, sold under order of Court, of May 4th, 1872, §3600; total §5656.00 — less cash advanced by this accountant §342.26, §5313.74.” The order revoking her letters, the order to pay over to new administrator, her admission of inability to pay, the order to sue, and will of William Gregory were all put in evidence. There was no distribution.

The plaintiff offered two prayers, which were rejected; and the defendants offered three, two of which were granted, and the third rejected. The exceptions bring up for *500 review the rejection of the plaintiff’s, and the granting of first and second prayers of the defendants. The first prayer of the defendants ought not to have been granted. The theory of the prayer was wrong as we have shown, in what we have said in disposing of the questions raised hy the plea demurred to. It was, however, wrong in another particular. It treated the whole balance in the hands of the executrix as belonging to her for life, and was a construction of the will of William Gregory, in a way which we think is not sound. By the first item of the will he says ; “ I will and bequeath to my wife, Susan Gregory, all the household furniture and fixtures, and the cash money in hand, and the bills receivable, of which 1 shall die possessed, for her own absolute benefit, behoof and disposal.” . By the second item, he gives to his wife,' the leasehold house and lot on Hollins street, and two leasehold lots on the north side of West Baltimore street, all to be enjoyed, together with the improvements, rents, issues and profits thereof, during her life. The third, fourth and fifth clauses direct the mode of disposition after his wife’s death. The testator, in his- lifetime, (within the sixteen months he lived after making his will,) sold the lots on Baltimore street, and a part of the purchase money remained due at his death, and was collected hy the executors, and invested in the United States bonds mentioned in the accounts. The question is therefore raised, whether the proceeds of that sale passed to the wife absolutely, under the first clause of the will; or whether, as the Court below seemed to think in granting the defendants’ first prayer, that the money took the place of the lots, and was to he enjoyed by the wife for life; or whether as to that there was an intestacy.

We do not think the testator designed to die intestate of anything. His making a will demonstrates that he did not so desire; and a fair construction of his will does not so require. Under our statute, a will speaks as of the *501 the day of a testator’s death. Here, the testator evidently contemplated the possibility of his having other money and other bills receivable, than those then in hand, when he died; and he says with respect to the money and bills receivable, which lie gives to his wife, that it is such as “I shall die possessed of.” Will “bills receivable” embrace the amount due from the sale of the leasehold property, at the time of his death ? If so, she was entitled to that absolutely. By fair construction did he so intend ? If he had received cash for the property, and had put that in his desk with his other money, it would scarcely have been contended, that under the first clause of the will, this money would not pass to the wife.

Being money due him, and embraced within the legal meaning of hills receivable, we know of no rule by which she shall be denied a right to it. JBouvier, in liis Law Dictionary, Vol. 1, p. 181, defines “Bills receivable” to he “promissory notes, bills of exchange, bonds, and other evidences or securities, which a merchant or trader holds, and which are payable to him.” Abbott’s Law Dictionary, p. 146, says “they are the assets, (in commercial paper,) of a business man, of an estate, &c., and bills payable are the debts.” “Bills” in these phrases, are not always confined to bills of exchange, or even formal written evidences of debt — but may mean- demands generally, claims or obligations.” Thus it is seen that bills receivable are made to mean the converse of hills payable, or debts to he paid. If there was anything in the will to indicate an intention to restrict the term within a narrower compass, it might- no doubt he done to carry out a manifest purpose of the testator. -Here there is nothing of the kind in the will. He either intended it to pass to his wife absolutely, or he must he held to have died intestate of it; for we cannot substitute one thing for another devised to be enjoyed specifically. The leasehold property sold by the executors by order of the Court, was devised to he enjoyed *502 as such, for life, and then was devised over. By selling it in his life-time, he has created the controversy about it. If it be held that he dies intestate of that, it will he doing violence to the natural presumption ; and it is not at all unreasonable to suppose that he left his will unchanged, with the design of giving his wife under the first clause, these proceeds of sale. He is presumed to know the meaning of the language he has employed; and having made no change in his will, he must he presumed to have intended the result which that language would bring about. As the law affords us a mode of settling the question, without ascribing any purpose to him, other than it intends he may have had, we must adopt it. By it, the money value of a part of what he gave his wife for life, in the second clause, is only enlarged into an absolute gift, subject to no limitation over. A supposition by no means unreasonable, looking to the regard he had for her, as indicated by the will. This view not only affects the prayers of the defendants, hut those of the plaintiff also, which we will consider presently.

The second prayer of the defendants presents the- question raised by the first addional plea, and cannot he sustained.

The bond on which this suit was brought, was taken by the Orphans’ Court, under the power which is given to the Court by the second section of Art. 91, of the Code. That section gives power to the Orphans’ Court, to call on any executor or administrator to give new security approved by said Court. The first section of the Article provides for counter security when asked for; but the second section gives the Court authority of its own motion, to call for a new bond. It does not contemplate that revocation of letters shall precede or accompany the giving of such bond ; for it makes revocation of letters a penalty for refusing to comply with the demand. It does not contem plate the disturbance of the letters already granted; hut *503 designs to provide additional or other security, for the performance of duty under those letters. If was giving to the Orphans’ Court the power which is always exercised by Courts of equity, over trustees in that regard; and which is, of constant practice. The fact that it does not appear affirmatively, that the Orphans’ Court demanded this bond of the executors cannot avail to defeat the suit. They approved th§ bond, and in so doing, must be presumed to be approving what they had required. It was a determination, then and' 'there, that it was expedient. It is not reasonable to suppose such bond would have been voluntarily tendered, without demand. Having the right to demand it, and having accepted it; the Court will be presumed to have done all that ought to precede it. It was wholly, and only within their jurisdiction, and all the presumptions are that the Court properly exercised its powers. Fudge vs. The State, 3 G. & J., 103 ; Ex parte Shipley and Wife, 4 Md., 497 ; Milburne vs. State, 1 Md., 12 ; Burgess vs. Lloyd, 7 Md., 178 ; State vs. Horner, 34 Md., 569 . Whether the first bond was released by the talcing of a second, or still remained answerable in any way, is not now before us.

The plaintiff’s prayers were properly rejected ; but upon a remand of the cause for a new trial, they can easily be made to conform to the requirements of this decision. Recovery cannot be had for anything beyond the proceeds of sale of the Hollins street house and lot, sold by the executors and converted to their own use. Hor will the appellant be entitled to recover any interest thereon. Being a life tenant, the executrix, Susan Gregory, was entitled to the income therefrom, and must be allowed to have taken that in her right as life tenant. In the hands of the new administrator, it will be subject to investment, under the rule already laid down, for the use of the life tenant during her life, and after her death, for the remainder-men ; and the interest already accrued and actu *504 ally enjoyed by tbe life tenant, or supposed to have been, cannot be added so as to swell tbe fund for investment. Entertaining these views, the judgment must be reversed, and the cause remanded for a new trial.

(Decided 20th January, 1882.)

Inasmuch as the narr. was infirm, in the omission of a material allegation, and the judgment on the demurrer-to the defendants’ second additional plea should have been for the defendants, and the plaintiff ■ will be compelled to-amend to obtain judgment, the reversal and new trial must be granted with costs to the appellees.

Judgment reversed, and cause remanded for a new trial.