2 Md. 104 | Md. | 1852
delivered the opinion of the court.
The appellees, Peters and wife, filed their petition in the orphans court of Baltimore county, alleging that letters testamentary had’ been granted to the appellants, as executors of George Peters, deceased, on the 28th day of March 1850, that the debts of the deceased had been paid, and that the time prescribed by law for the final settlement of the estate of the deceased, had passed, and concluded by praying “that said executors plight be required to make such final settlement accordingly.” This petition was filed on the 15th of ■October 1851.
In reply to said petition, the executors filed their answer, in which they admit, that all the debts had been paid, except .current expenses, incident upon the management of the estate; that they had already rendered their first account, and that according to the plain directions and provisions of the will, no final settlement could be lawfully made by the executors, until after the death of Mrs. Peters, the widow of the deceased. The executors also set out at length, the- will of George Peters, out of which, grows the present controversy. The orphans court of Baltimore, granted the prayer of the petitioners.
There appears to be no difficulty in arriving at the intention of the testator, as indicated by the language of his will, and that intention must be effectuated, unless it should be in contravention of some established law. Under this extraordinary, and somewhat anomalous testamentary instrument, three distinct classes of representatives are appointed by the testator. In the first place, Henry Rieman and Launcelot Warfield, are named as trustees, for the purpose of accomplishing certain trusts, imposed upon them. Secondly, George and James Peters are appointed agents, and as such, have distinct and independent duties assigned them; and in the third place, the appellants, Henry Reiman and Jesse T. Peters, are appointed executors. Whether the functions of these last named, in the capacity of executors, are to continue after the time shall have expired, within which they would be required by
The parts of the will particularly relating to the subject matter of the present controversy, are in these words, viz: “In consideration of the regard and affection I have for my said wife, Sally Peters, and in lieu of any right of dower, or .thirds, or any other interest she may have as my widow, in any other estate, I do hereby give and bequeath to her, .during the term of her natural life, if she so long remains my •widow, but not otherwise, in addition to the property so conveyed in trust, the sum of five hundred dollars per annum, to be paid .out of my estate, in equal monthly payments, from the time of my decease.” And in another clause it is provided, that “if, from any unforeseen circumstance orcasuality, it becomes necessary, the whole residue of my estate, or the income thereof, or so much, or such part as may be requisite, shall be bound for and held answerable to make good that provision, during the lifetime of my said wife.” And the better to accomplish his last mentioned purpose, it is expressly directed by the testator, “that during the natural life of my said wife, my estate and property of every kind, subject to the said preceding devises, shall be preserved and kept together by rmj executors, hereinafter appointed;” and again, the will proceeds, “my sons, George Peters and James Peters, shall, under the direction and supervision of my executors, have the charge of, and attend to the renting, repairing and collecting the rents of my houses, See. And for the rents so collected, and paid over by them to my executors, they shall be entitled to, and receive a commission of five per cent.” And then again, the testator proceeds to direct the ultimate disposition of his estate, in these words : “The entire income arising from the whole trust property, and premises aforesaid, annually, after the payment of taxes, repairs, ground-rents and other incidental expenses, and making the provision hereinbefore contemplated for my said wife, shall be paid over to, or received by my said trustees, in order that one equal
As has been before intimated, there is no difficulty in ascertaining the intention of the testator, in regard to the duration of the powers of the executors,. By express terms, they are to keep the estate together, till after the widow’s death, for the purpose of being able to pay over to her, the annual allowance appropriated to her in the will. These acts are to be performed by them in the capacity of executors. The trustees’ powers over the estate, only commence, after the executors shall have discharged their duties, in respect to the proceeds of the estate, which shall first pass through their hands, and after the residue shall have been handed over to said trustees.
But it is contended, that this manifest intention of the testator shall not prevail, because it contravenes a provision of our testamentary laws. By the act of 1798, chap. 101, sub chap. 8, sec. 1, it is provided, that every executor or administrator shall, within fifteen months (under peculiar circumstances, the time may be extended to eighteen months,) after the date of their letters, return a full account of their administration; and it is argued by the appellees’ counsel, that the clear import of this language is, to require the appellants in the present case, to render a final account, and to surrender their office and powers as executors. We will not pause to consider, whether this provision of our testamentary law is susceptible of such a construction or not, which is, at least, a doubtful question, but will proceed to show, if it were so to be construed, that by a subsequent clause in the same act, (which seems entirely to have escaped the notice of counsel,) it is modified and controlled. Sub chap. 10, sec. 11 of this law, provides, that “if, by the provisions of any will, it shall be necessary for an executor, to retain in his hands the personal
The petition before1 us merely prays, that the executors might be required to render a full account, but asks for nothing more. In this form we are not prepared to say, that the prayer should not have been granted, under the general powers of the orphans court to supervise the administration of a testator’s estate. A full account may be rendered, and still it may not be a final account, so as to terminate the official existence of the executor. We' are relieved, however, from expressing any opinion on this point, by the concessions of counsel on both sides. It is admitted, that the application in the present case, is for an- absolute termination of the powers of the executors, and for a transfer of all assets in their hands, over to the trustees. Such a prayer, we are not prepared to grant.
Order reversed and petition dismissed.
