14 Md. 8 | Md. | 1859
delivered the opinion of this court.
This is an appeal from an order of the orphans court of Garroll county, confirming and ratifying the separate account of Isaac Hesson, one of the executors of Peter Hesson. His co-executor, Joseph Hesson, protested against its passage, but the court overruled, or rather disregarded, the protest, and passed the account in which there is an allowance of $5050 to the accountant. There is no proof, whatever, in regard to the items constituting the account to be found in the record; and the orphans court, in reply to a writ of diminution which issued in this case, certify, that they are not in possession of the vouchers which were exhibited to them, and that upon the completion of the settlement, the private account of Isaac Hesson, together with his vouchers and receipts, were taken away by him.
The case then appears before this court with an allowance objected to, without a particle of evidence to sustain it. The appellant is not only a co-executor, but a distributee under the will of the testator, and in either capacity is entitled to prosecute this appeal. His interests cannot be sacrificed without
If the appellant, as a co-executor, is unwilling or fails to discharge his duty as such, the appellee, or any one else in interest, can apply to the orphans court to discharge him from his office of executor. 1816, ch. 203. 1 Md. Rep., 197.
We regard the allegations and protestations contained in the petition of the appellant, as equivalent to a demand for “full proof.” They amount to a denial of the claim of the appellee, and charge upon him a fraudulent design to defraud the estate. These averments call upon the claimant to maintain his claim by legal proof.
Order reversed and cause remanded.
