47 A. 1034 | Md. | 1900
Elizabeth G. Stump died leaving a will which was duly *703 admitted to probate in the Orphans' Court of Baltimore County. She devised and bequeathed all her estate and property to her five children as tenants in common, equally. Her son, William G.H. Stump, was named as executor, and letters testamentary were duly issued to him. Some months thereafter he exhibited to the Orphans' Court an account against his mother's estate for an alleged indebtedness amounting, with interest, to over fourteen thousand dollars. This account was accompanied with certain affidavits, and was passed in the usual manner, ex-parte, by the Orphans' Court. Within a few days after the passage of this account the brother and sisters of the executor, filed in that Court a petition charging that said account is incorrect and erroneous and asking for the passage of an order rescinding the allowance of the claim, and requiring it to be established in a plenary proceeding and by full and satisfactory proof. It was so ordered, and the executor was required to establish his claim against the estate of his mother by full proof in a plenary proceeding upon bill or petition, he occupying the position of plaintiff and the other devisees and legatees were required to answer under oath as defendants. Leave was also allowed to either party to apply for issues to be sent to a Court of Law. The order just mentioned was passed on the 20th June, 1899, and on the 11th July following the foregoing order was rescinded and in lieu thereof it was ordered that the order of June 7th passing said claim be rescinded, unless cause to the contrary be shown by the claimant on or before the 9th of August, provided a copy of the order should be served on himself or his attorney before the 1st of August. On the day last named, instead of showing cause, as required by the order of the 11th July, why the order of June 7th passing his account should not be rescinded, he filed an answer under oath, setting up the merits of his claim, but failing to show any cause why the ex-parte order passing his claim should not be rescinded, or why his claim should not be established by full and satisfactory proof. It will be observed that this order does *704 not require that the other parties shall be notified of its passage. It only required that a copy should be served on the claimant. He alone appears to have had any notice of it.
The next step in the proceedings is a petition filed February 6th, 1900, by the devisees who were opposing the claim in question, by which they asked that the claimant's answer to their original petition be stricken out because it is not responsive, and praying that the original order allowing the claim be rescinded, and that the claimant be required to establish his claim by legal proof. The matter of this petition was set for hearing on a day named, and after hearing argument from both sides the Court passed an order striking out the two answers filed by the claimant, because not responsive, rescinding theex-parte allowance of the claim, and setting the question of its allowance or rejection for hearing on the 10th of April, 1900, requiring both sides on that day to produce before the Court such proof by witnesses or other legal evidence as they may desire to support their respective contentions, "so that the question of the allowance or rejection of said claim * * * may be finally decided." From this order the claimant, William G.H. Stump, has appealed.
The first question presented arises on a motion to dismiss the appeal.
It seems to us too clear for controversy that this motion must prevail, for the reason that it is evident from the record that the order appealed from is interlocutory in its nature and has not one element of finality about it. For while certain answers of the appellant were stricken out, the whole matter of the allowance of his claim was fixed for hearing on a day named in the order.
He was offered a day in Court to establish his claim and he refused to avail himself of it. The order appealed from did not even adjudge his answers insufficient, but only declared they were not responsive to the petition and motion of the appellees. However, even if these answers had been held insufficient, no appeal would lie, if, as is the case *705
here, a further opportunity was given to establish his claim. InPotts v. Potts,
But if the case were properly before us we would have no hesitation in affirming the action of the Court below. What the Court did was simply this. When the executor presented his claim it was passed by an ex-parte order. But it is settled that such an order gives to the claim no additional evidence of correctness when it is subsequently contested by proper parties in interest. For when so contested it must be supported by testimony sufficient to establish the facts before a jury. Edelen v.Edelen,
The contention of the appellant is that having filed his sworn answer he is not called on to produce further proof until the appellees have offered evidence to disprove the items of his claim. This is certainly an easy way to shift the burden of proof, but we cannot give it our sanction. If such a contention could be maintained then, as pointed out by counsel for appellees in their brief, "any executor may first procure the passageex-parte of a claim against the estate (and such ex-parte allowance is granted, as a matter of course, upon affidavits), and then by interposing a sworn answer to any application for rescission of the order passing his claim and for full proof, intrench himself in the position *706 of a defendant in a plenary proceeding, and call for evidence to disprove the items of his claim, notwithstanding the numerous decisions that such allowance is no evidence of correctness and that parties interested are entitled to call for full proof."
Under the order appealed from the appellant was allowed a full opportunity to establish his claim as required by the well settled law of this State, and the Court below will, of course, give him another day for the same purpose.
Appeal dismissed.
(Decided November 15th, 1900.)
