Watkins v. Bevans , 6 Md. 489 ( 1854 )

Tuck, J.,

delivered the opinion of this court.

This is an appeal from an order of the orphans court of Washington county, directing distribution of the estate of Robert W. Watkins.

It appears by the record, that on the 1st of March 1854, the court held a meeting for the purpose of closing this estate, and directed the manner in which the appellants should state their final account as executors, specifying the items with which they should be charged. On the 2nd of the same month the executors accounted, “in pursuance of the order of the court,” which account the court approved, stating that it had been “settled in obedience to the order of the court,” and directed a distribution of the estate according to that account and upon their construction of the will of R. W. Watkins. From this last order the appeal is taken; and one question for our decision is, what are the points presented for review ?

The order of the 1st of March was not final, but merely directory as to the manner of taking (he account. The whole proceeding shows, that further action on the account was to be had before a distribution could be made. In chancery, when instructions are pronounced for an audit and an account is taken and confirmed, an appeal from the order of ratification opens all questions arising on the account. Miller vs. Allison, 8 G. & J., 35. This appears to be a similar case and must be governed by the same rule. And if this were not so, the order itself, without reference to the account being erroneous in several respects, we should express our opinion upon the whole case in order that a proper account may be taken when the cause is remanded.

The court below placed a construction upon the will which is clearly wrong. The testator devised his land to his wife at a valuation. His purpose was, that she should take the land, if she stood by the will, at the price he placed upon it. For what other reason did he estimate its value in his will but that, in ascertaining the third of his estate devised to her, there might be no controversy between her and the children as to the value of the land? She took the land for life and held it during that period, enjoying the use of the whole, and yet the orphans court have charged her only with three-sevenths of the fee-simple value. If the widow had lived and the land had been sold under a decree in equity, she w'ould have received a proportion of the proceeds in lieu of her life estate, and the children would have received the balance. But such allowances are made because the enjoyment of the estate is taken away by the sale, and equity allows an equivalent according to the value of the unexpired life. We apprehend that where the estate has been enjoyed for the whole term by the tenant for life, this commutation cannot be claimed by her administrator. The effect would be to give a life estate, and something besides, after her death. We cannot suppose that the testator meant his estate to be administered in any such manner. In ascertaining her third of the estate, the land must be valued and charged at fifty dollars per acre.

We are at a loss to imagine upon what ground the settlernent of the second account of the executors was set aside. That account, and the third, are not in the record, and probably it is defective in other respects. If intendments are to be made in aid of the present account and order, the settlements previously made with the orphans court are entitled to the same support; and when we find that an account of several years’ standing is vacated without any evidence of incorrectness, and after the balance had been distributed, as appears by the order of the 1st of March, we cannot do otherwise than say, that as far as this record shows that balance was improperly brought into the estate a second time. The interest on that amount, charged in this account is manifestly erroneous, if the principal was distributed under the second account. And if the balance on the second account was not paid over, it does not follow that that account and distribution were incorrect, and there is nothing before us to show that they were liable to any objection.

The charge of $9078.76 is prima facie correct. It appears to be the balance due on the last preceding account. If improperly charged in this account it can be corrected.

The item of $701.54, for purchases at the sale, cannot be sustained on this record. It is by no means certain what the testator designed by this clause of the will. He did not intend it as a bequest to the widow, because he calls it a purchase, and directs that she shall pay interest annually for the use of the sons, but to whom, or for what time, does not appear. If this sum has been collected by the executors from her estate, they are chargeable therewith, and with interest. If it has not been collected, and her estate is insolvent, they cannot be held responsible for more than they can recover, because they are not in default, having no power under the will to demand security; which may be allowed, we presume, where the interests of creditors are not involved. In adjusting the account with the widow’s estate as to her share under the will, the executors should be allowed to retain thereout what they may be chargeable with on this debt.

We do not approve of the account in respect to the alleged value of the watches. The appraisement is not valid, as such, though the appellants cannot object to being charged upon this admission in the absence of a valid appraisement. But, taken as a whole, it shows that the watches had been delivered to the legatees. The executors were entitled to a corresponding credit, and should not have been required to pay their value in money.

Mrs. Watkins’ estate is entitled to the legacy of two hundred dollars and interest. If it has been paid, as suggested, the proof must be adduced by the executors.

It is impossible for the court, from this meagre record, to ascertain the correct balance for distribution. We can only indicate the principles that should govern in making a final settlement with the orphans court.

The debts and expenses of administration, together with the canal debt, are to be deducted from the personal estate. The balance should be increased by the land at the valuation prescribed in the will, and if this valuation does not equal one-third of the balance so increased by the price of the land, the difference is to be made up out of the estate. In addition to this, her estate is entitled to the watch and legacy of two hundred dollars, and one-third of the canal bonds and other claims against that company. One-half the balance of the estate and one-third the canal debt are to go to the estate of Edgar, and . the same amounts, with the watch, to the estate of Thomas.

The order of the orphans court will be reversed and the cause remanded.

Order reversed and cause remanded.