86 Md. 379 | Md. | 1897
delivered the opinion of the Court.
This appeal comes from the Orphans’ Court of Harford County. It appears that pending a controversy as to the validity of the will of William Baldwin, deceased, Noble L. Mitchell was appointed administrator pendente lite. The time at which he was so appointed does not appear in the record. He possessed himself, however, of the assets, and paid certain debts of the deceased. On the 7th day of December, 1896, the Orphans’ Court passed a decree setting aside the will, and ordering the costs of the contest to be paid out of the estate. Silas Baldwin was then appointed administrator to complete the settlement of the estate. On the fourteenth day of December Mitchell, the administrator pendente lite, filed his account. He charged himself with assets to the amount of $2,867.00-100 and claimed allowances for the expenses of his administration including commissions, the costs of the litigation, and for certain payments on account of the debts of the deceased. The appellant objected to the confirmation of the account, and from the action of the Court in overruling his objection, this appeal is taken. The objection extends only to the item of $500.00-100. “To Joseph E. Ashton per agreement.”
It is contended that Mitchell being only an administrator pendente lite had no power virtutc officii, to pay any of the debts of the deceased. In this State letters of administration pendente lite are granted, at the discretion of the Orphans’ Court, where the validity of a will is, or shall be contested. Code, Art. 93, sec. 68. They confer authority only during the contest, and are to be regarded as revoked by the granting of letters testamentary or of administration —sec 69. There are no provisions in our statutes defining the powers of such an administrator, or establishing par
There appears in the record a copy of a paper that was filed in the suit at that time pending between the parties to this appeal. In that paper the parties agree “ that the verdict of the jury on the issues shall be entered so that the will be set aside,” and further, “ that out of the estate shall be paid” the several sums therein stated, one of the items being as follows : “To Joseph E. Ashton in full for his and his family’s and servant’s services, nursing and attending to
The motion to dismiss the appeal must be overruled. The sixteenth Rule is clear, that no appeal shall be dismissed because the transcript shall not have been transmitted .within the time prescribed, if it shall appear to the Court that such delay was occasioned by the neglect, omission or inability of the officer whose duty it is to make it out and transmit it. But such neglect, omission or inability of the clerk shall not be presumed, but must be shown by the appellant. There are filed in this case three affidavits of the Register of Wills. By the first, it appears that the counsel for the appellant on the 23rd of December, 1896, nine days after the order appealed from was passed, and on the same day the appeal was entered, ordered the record to be made up and transmitted to this Court; and that, later on, he inquired of the Register, if the record would be made out and transmitted within the time prescribed by law, and was told by the Register that he could not have it ready by that time, because of pressure of business, which required his attention. In the last affidavit filed, the Register further states, that the delay was his act with which the appellant or his counsel had nothing to do. This is not contradicted by anything now before the Court, and is sufficient to meet the burden of proof put upon the appellant.. It shows that the delay was caused by the Register, for which the appellant is in no wise responsible.
Order reversed and case remanded for further proceedings in accordance with this opinion, with costs to the appellant.