Billingslea v. Henry ( 1863 )

Bartol, J.,

delivered the opinion of this Court :

Under the Act of 1818, ch. 204, appeals from the order, decision or judgment of an Orphans’ Court, must be taken within thirty days. This appeal was taken on the 12th day of April 1862, and was of course too late to bring up for review the judgment of the Orphans’ Court rendered on the 5th day of February 1862.

In our opinion that judgment was not invalid for vagueness or uncertainty in its terms.

The appellant had been allowed in an account before passed by him ex-parte, the sum of $800, for board of the testatrix in her life time, and also a certain sum for commissions, being at the rate of ten per cent. Objection to these allowances and others, being made by the appellees by petition, the Court proceeded to hear the matter on petition, answer and proof, and thereupon ordered that $400 he deducted from the $800, before allowed for the board of testatrix, and also that ten per cent, on the appraised value of negro Pat, deceased, before allowed as commission, should be deducted. This is the plain meaning of the judgment of the 5th of February. It settled the controversy and concluded the parties, as to all matters in issue upon the petition and answer, and not being appealed from in time, is not now open for review.

On the 7th day of April 1862, the appellant presented another administration account claiming the following allowances:

1. Interest on balance due him from the estate, 161 74

2. Counsel fees paid for advice and professional services in relation to settlement of estate, including $50 for fees in the matter of Henry and wife’s petition, - 100 00

3. Costs stated by the register as follows:

Register’s fees, - - $14 66

Witnesses and sheriff’s fees, - 26 66 41 32

$303 06

On the same day the Orphans’ Court passed an order rejecting these claims. The propriety of this order is the only question before us on this appeal.

We think the order ought to be affirmed. The allowances claimed are not supported by any proof, no account of them or any voucher is presented in the record. But independent of this objection we think the claims were properly disallowed for other reasons.

The interest claimed is on the balance appearing to be due the executor, by his former administration account, by reason of payments and disbursements made by him, beyond the amount of money in his hands. But the record shows, that he had assets in his hands more than sufficient to cover his disbursements. These assets consisted of negroes. It does not appear that any application had been made for an order to sell that property; nor that it was retained under an order of the Orphans’ Court. An executor who voluntarily pays debts out of his own funds, cannot claim interest on amounts so paid, when he has assets in Ms hands at the time sufficient to pay them; which he has not chosen to convert into money. If he have Hot assets, and is compelled to resort to the land in a Court of Chancery to recover for over-payments, he is treated as a creditor, subrogated to the rights of creditors whose claims he may have paid, and is of course entitled to interest.

(Decided Nov. 12th, 1863.)

The other allowances claimed were for counsel fees paid, and costs incurred in carrying on the controversy in the Orphans’ Court, growing out of the first administration account. In resisting the petition of the appellees, and an attempt to maintain his claims against the estate, in which he was unsuccessful. Under the decision in the case of Dorsey vs. Dorsey, 10 Md. Rep., 471, the expenses of such a litigation ought not to be charged upon the estate.

Order affirmed with costs.