85 Md. 554 | Md. | 1897
delivered the opinion of the Court.
Peter Shafer, Sr., late of Frederick County, in this State, died in the month of July, 1895, leaving a last will and testament, which has been duly admitted to probate in the Orphans’ Court of said county, and letters testamentary thereon were by said Court granted to Peter W. Shafer, the executor therein named, who has accepted the trust and in due course of administration has passed his first account in said Court. After the settlement of said account, certain of the distributees under the said will, who are the appellees here, filed their petition in said Court alleging certain errors in said account and asking that the same be corrected. Upon this petition the Court passed an order requiring the appellant to answer the same and reserving the questions raised by said petition until the presentation of the
As to the first item of $1,000, the same having been regularly proven and passed by the Court below on the 7th of November, 1895, and endorsed, “Will pass when paid,” the same was thereupon entered upon the “ Claims Docket ” of said Court and allowed in said first account. On the 27th of November, 1895, the appellant, acting in pursuance of an order of said Court, gave the usual notice to the legatees and distributees under said will by publishing the same in the “ Daily News,” a newspaper published in Frederick County, for two successive weeks prior to the day named, that a meeting would be held under the direction and control of said Court at the office of the Register of Wills of Frederick County, at 10 o’clock, A. M., on said day, for the payment of all legacies, and for distribution among the residuary legatees of the balance due them under said will. The two other claims objected to will be hereafter considered, but what we desire to say concerning the executor’s claim will be in great measure applicable to all the objections urged against the first account as stated. When the appellant executor had stated said account, and
The claims of executors and administrators stand on the same footing with those presented by other creditors of deceased persons. Levering v. Levering, 64 Md. 399—413. In this case the claim of the executor was passed after proof and without objection, and it is clear, we think, beyond question, that the appellant received the amount of his claim in full on the 27th of November, 1895, and to establish this fact, we do not consider it was necessary for him to have drawn a check in his representative capacity payable to himself in his individual capacity; he had in hand ample funds with which to pay it, and he swears that he did pay it, and this we think conclusive of it, as there is no proof to the contrary. It was not, however, for him in the first instance to establish such a fact, but the burden was upon the appellees to support such contention. The burden was equally upon the appellees to disprove by competent testimony the correctness of the appellant’s claim. The law has left the appellant in a proceeding like this to act upon the defensive, and. until the appellees have successfully assailed his claim he is entitled to remain silent and need offer no further evidence to sustain it. Stevenson v. Shriver, 9 G. & J. 336.
The case of Bantz v. Bantz, supra, from which we have just quoted, was much relied upon by the appellees in support of their argument in this Court both oral and written, but it is in no respect in conflict with the numerous decisions announced by this Court relating to the same subject. The appellees have sought to relieve themselves of. the onus probandi, and we but reassert the doctrine heretofore maintained, when we say that they cannot contest an administration account without assuming to themselves the position
“ Know all men by these presents : That I do hereby acknowledge that I have received from Peter W. Shafer, executor of the last will of Peter Shafer, Sr., deceased, the full and just sum of eighteen hundred and sixty-two dollars and ninety-two cents ($1,862.92), being in full of the balance due me on settlement of said executor’s first account, exhibited and passed by the Orphans’ Court for Frederick County on the 7th day of November, 1895, and hereby release, exonerate, acquit and forever discharge the said Peter W. Shafer, executor as aforesaid, his heirs, executors or administrators, from all claim or demand whatsoever on account of said settlement as aforesaid, either in law or equity.”
' The order of the Court below requiring the debt of Eva L. Shafer for $745, returned by the appellant and marked “ desperate',' to be “ corrected, made collectible and charged against the executor,” is without the slightest proof to sup
It follows from what we have said that the Court below has committed error in the passage of both the orders appealed from, and therefore both orders must be reversed.
Orders reversed with costs.