Opinion
[Nos. 9, 10, January Term, 1935]
Decided April 23rd, 1935.
Equity Procedure — Petition to Rescind Decree — Auditor's Report — Hearing — Accounting by Trustee — Interest — Commissions — Allowances for Expenditures
As a general rule, an appeal does not lie from the refusal of an equity court to rescind or vacate its final decree for the purpose of letting in additional testimony, or for a rehearing on contentions which were made, or should have been made, before the passage of the decree.
The fact that a petition, asking the court to rescind its previous final order, for the purpose of letting in additional testimony, did not give the particulars of the testimony which petitioner desired to offer, was ground for refusing the petition.
In a suit for an accounting, the refusal of a petition asking the court to rescind its final order ratifying the auditor's third report, because it was passed without notice to the petitioner or opportunity for the production of testimony or a hearing, held not to have deprived petitioner of any substantive or procedural right, the parties having been fully heard, on exceptions to the auditor's second account, and the third report being merely advisory to the court, and merely amplifying the second account in answer to exceptions.
An appeal from a final order ratifying a third auditor's report presented for review all the orders passed on the exceptions theretofore filed in the cause.
Where corporate stock belonging to decedent's estate was sold by the administrators, and the proceeds were accounted for by them, such stock did not form part of the corpus of a trust in decedent's property, subsequently created by agreement, and the trustee thereunder could not as such be charged with the dividends on such stock, though they were received by him under an arrangement with the purchaser, and were carried into his account as trustee, nor was he, as trustee, entitled to commissions on such dividends.
One of two coadministrators, who did all the work of the administration, under an agreement with the other that the former should receive all the commissions, held not chargeable with one half of the commissions in favor of the estate of the other.
Where administrators rightfully paid the collateral inheritance tax on the shares of certain distributees, deducting such payments from the latters' shares, and the sums so paid were not included in a trust thereafter created by the various distributees in a part of decedent's estate, the trustee thereunder could not be charged with interest on such sums as if included in the trust.
Where a trust was created in certain property of an intestate by agreement of those interested therein, and an account was thereafter stated of the receipts and disbursements of the trustee thereunder, it was error to include in such account items which the administrator, one of whom was such trustee, had been charged in the administration account.
The life tenant, under a trust created in an intestate's estate by agreement of the heirs and distributees, could not object that certain expenditures by the trustee were allocated to income and not corpus, where these expenditures were made by the trustee before the creation of the trust and of the life estate, and consequently there was no occasion to allocate them with respect to capital and income.
A trustee could not claim interest on a sum advanced by him to the trust estate to pay taxes, he having failed to repay himself at an early opportunity.
A trustee given ten per centum upon the rents, profits, and income could not charge the trust with part of the cost of an automobile which he used for his own purposes as well as for visiting widely separated farms belonging to the trust, and for carrying articles to and from the farms, nor could he charge the trust with expenditures for the operation and repair of the automobile.
The cost of the permanent improvement of a way to a farm belonging to the trust was chargeable to corpus and not to income.
The equitable life tenant, having consented to purchases by the trustee of live stock, implements, and machinery for farming purposes, to be paid for out of corpus, could not object to the resulting diminution in her income.
A trustee was not chargeable, at the suit of the life beneficiary, with rents which were collected by the latter and never came into the trustee's hands.
Where the life beneficiary has received more than the net income of the trust and more than the sum of the net income and the aggregate commissions of the trustee on the gross income, the trustee is not to be charged with interest.
The representative of a beneficiary who, before the stating of the auditor's second account, could have offered testimony as to crops not fully accounted for by the trustee, but failed to do so, could not thereafter seek to reopen the account in that respect.
Decided April 23rd, 1935.
Appeals from the Circuit Court for Talbot County, In Equity (KEATING, J.).
Suit by Kate F. Nichols against Henry A. Nichols, Trustee, for an accounting, in which Bertha J. McGill, executrix of said Kate F. Nichols, was, on the latter's death, substituted as plaintiff. From a final decree ratifying and confirming the report of an auditor, and from an order refusing to rescind the decree, the said trustee appeals. Appeal from order dismissed, and final decree affirmed in part and reversed in part.
The causes were argued before BOND, C.J., URNER, OFFUTT, PARKE, SLOAN, and JOHNSON, JJ.
Edward H. Burke, with whom were H. Herbert Balch and Bowie Burke on the brief, for the appellants.
G. Elbert Marshall, for the appellee.
Unreported cases.