113 A. 591 | Md. | 1921
The appeal in this case is from an order of the Orphans' Court of Washington County dismissing the petition of the appellant, which prayed for the removal of the appellee as executor of Annie S. Motter, deceased. The order appealed from was passed after answer by the executor and a hearing upon testimony offered by the respective parties. It is alleged in the petition that the appellee has failed to account for certain sums of money, aggregating $3,665.62, to which his testatrix was entitled in the distribution of the estate of her mother, Ann E. Stake, the administration of which was *52 completed in June, 1917. The petition states and combats the reason assigned by the appellee for his failure to collect and account for the funds in question. He is charged with having improperly taken the position that his testatrix was indebted to her mother's estate to an amount in excess of the distributive share to which she would otherwise be entitled. It is averred in the petition that such a claim is not sustainable, but that it would not be resisted by the appellee if it should be made the subject of litigation. The greater part of the money referred to is in the hands of Mary E. Stake, as executrix of the will of the deceased administrator of Ann E. Stake, and the remainder, amounting to $125.31, is deposited in the names of the appellant and appellee, as administrators d.b.n. of the estate of the same decedent. The appellee is alleged to have omitted from the inventory of the real estate of Annie S. Motter a farm in which she had an interest, and to have amended the usual affidavit to the inventory in such a way as to favor a claim subsequently made by Mary E. Stake, in an equity proceeding, to the interest of the appellant's testatrix in the real estate inventoried, but it is averred that he nevertheless paid the collateral inheritance tax on that property out of the funds in his hands as executor. There are allegations that the appellee is a brother of Mary E. Stake, that they occupy the same residence, and that he originated the claim on account of which the settlement of the estate is said to have been delayed.
In his answer to the petition the appellee admits that his course in regard to the funds under consideration may have been irregular, but he denies that he intended to wrong any one interested in the estate or to avoid any duty imposed upon him as executor, and expresses his willingness and desire to state a further account under the order and supervision of the Orphans' Court, and to have the question of the validity of any claims against the estate determined in the exercise of its jurisdiction. The answer avers that the appellee's testatrix in fact had no interest in the land omitted from the inventory of her real estate, and states that the collateral inheritance *53 tax mentioned in the petition was paid inadvertently.
The evidence in the case fails to prove that the delay of the appellee in bringing the administration of the estate to a conclusion has been due to any collusion with adverse interests, or has resulted in the loss of any of the assets for which it is his duty to account. The fact that the funds to which the petition refers have not come into his hands and been distributed by him under the will of his testatrix may be attributed to his belief in the existence of a valid counter claim on the part of the estate from which they are to be derived. But he was admittedly neglectful of his duty in not promptly and regularly proceeding to secure the adjudication of the rights and interests of the estate which he represented with respect to the funds in dispute. The Orphans' Court announced its purpose to pass an order requiring the appellee to forthwith account for the estate not yet administered. It concluded, however, that the proof was not sufficient to justify the revocation of his letters testamentary. Upon the record in the case we are unable to hold that this decision was wrong. There was adequate ground for a positive order on the appellee to expedite the final settlement of the estate, but his removal as executor does not appear to have been requisite to protect the interests of the estate or to have been made clearly necessary by his conduct. Such action could well be regarded as unduly drastic under all the circumstances. This was the view of the Orphans' Court upon full consideration of the facts, and we find no reason in the record to reverse its decision. The cases, cited by the appellant, in which executors were held to have been properly removed, were substantially different in their conditions from the one now presented.
A motion to dismiss the appeal has been filed. The theory of the motion is that the order refusing to revoke the appellee's letters testamentary is not appealable. In Lee v. Allen,
Order affirmed, with costs. *56