Handwerger, Leroy

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Maryland Law ReviewVolume 17 | Issue 3 Article 10Removal of Administrator Because of ConflictingInterests - Talbert v. ReevesLeroy HandwergerFollow this and additional works at: http://digitalcommons.law.umaryland.edu/mlrPart of the Estates and Trusts CommonsThis Casenotes and Comments is brought to you for free and open access by the Academic Journals at DigitalCommons@UM Carey Law. It has beenaccepted for inclusion in Maryland Law Review by an authorized administrator of DigitalCommons@UM Carey Law. For more information, pleasecontact smccarty@law.umaryland.edu.Recommended CitationLeroy Handwerger, Removal of Administrator Because of Conflicting Interests - Talbert v. Reeves, 17 Md. L. Rev. 263 (1957)Available at: http://digitalcommons.law.umaryland.edu/mlr/vol17/iss3/10TALBERT v. REEVES"[Ilt is perfectly clear that an unloaded pistol,when used in the manner shown by the evidence inthis case, is not, in fact, a dangerous weapon. If thedefendant had struck or attempted to strike with it,the question whether it was or was not a dangerousweapon in the manner used, or attempted to be used,would be one of fact; but the courts quite uniformlyhold as a matter of law that an unloaded pistol, whenthere is no attempt to use it otherwise than by pointingit in a threatening manner at another, is not a dan-gerous weapon."8 3With the presumption that a firearm so used is loaded,which is already followed by the great majority of robberycases, and even by the Wisconsin cases, as indicated in theopinion of the principal case,84 it might well be argued thatthe approach of the assault cases could be followed in therobbery cases with more justice than lies in the "possi-bility" approach above described. There would be greaterconsistency obtained in the two lines of cases, which seemto be dealing with essentially the same problem.SAMUEL LYLS FnLANDRemoval Of Administrator Because OfConflicting InterestsTalbert v. Reeves1The wife of an intestate, after qualifying as his adminis-tratrix,2 filed her personal claim against the estate for ser-vices rendered to the intestate's business for the sixteenyears prior to the decedent's death. The two survivingsisters of the intestate thereupon filed exceptions demand-ing due proof of this claim and further alleged that a sub-stantial portion of this claim was barred by the statute oflimitations.' Counsel for the administratrix made a motionto strike out these exceptions on the grounds that the de-fense of limitations was not available to the exceptants,and that they were not entitled to call for full proof sincethat was a matter solely between the court and the adminis-Ibid, 952.Supra, n. 30, 115.1211 Md. 275, 127 A. 2d 533 (1956), di8. op. 283.'MD. CODE (1951) Art. 93, Sec. 22.'MD. CoDE (1951) Art. 57, Sec. 1.19571MARYLAND LAW REVIEWtratrix. Upon this the sisters filed a petition to remove theadministratrix on the ground that he was not acting forthe best interests of the estate, but was advancing her ownindividual interests. The Orphan's Court revoked her let-ters and from this she appealed.The Court of Appeals, in reversing the lower court'sdecision, held: that in view of the fact that the administra-trix had a legal right to file a claim against the estate inher charge,' the mere fact that she was unable to raise thedefense of limitations against her own claim did not fur-nish a ground for her removal. From this holding therewas a vigorous dissent by Special Judge George Henderson.This case is one of first impression in Maryland to theextent that the sole ground upon which removal was soughtwas that of the conflicting interest of the administratrix.Certainly the court was aware that such a conflict of in-terest did exist. Reference was made to the Marylandstatute wherein the pleading of limitations against a justclaim upon the estate is left solely within the honesty anddiscretion of the administratrix.5 The purpose behind thistype of statute is to put the administrator in the shoes ofthe deceased and permit him to plead or waive limitationsagainst a just claim exactly as the deceased could havedone had he been alive.6 In the majority of states whichhave this type of statute, the courts have held that theadministrator's right to waive limitations applies only tothe claims of third persons against the estate and suchwaiver is not permitted as to the administrator's own per-sonal claim against the estate in his charge." By such hold-'MD. CODE (1951) Art. 93, Sec. 102.'MD. CoDr (1951) Art. 93, Sec. 105."It shall not be considered as the duty of an administrator or execu-tor, to avail himself of the act of limitations to bar what he supposesto be a just claim, but the same shall be left to his honesty anddiscretion."'The underlying, legal philosophy supporting such a statute Is well statedin McGowan v. Miles, 167 Tenn. 554, 72 S. W. 2d 553, 554 (1934), where thecourt said:"The reason that an administrator is permitted to exercise his dis-cretion about pleading the statute of limitations against a claim of athird person is that he may know that the debt is a just one, and, theadministrator being bound morally and legally for the protection ofthe estate 'and having no interest in the debt sued for, there can beno reasonable supposition that he will collude with the creditor todefraud it, and, therefore, it is considered perfectly safe, to let himrely upon the statute of limitations or not, at his own discretion, asthe deceased himself could have done had he been alive'."'In Batson v. Murrel, 10 Humph (Tenn.) 301 (1849), it was said that,although It is safe to let the personal representative use his discretion asto whether he should waive the statute as to barred claims of creditors,it is very different when he himself seeks to charge ;the estate with his ownclaim which is barred by the statute, as his position is then antagonistic to264 [VOL. XVIITALBERT v. REEVESings, these courts have avoided the conflict of interestproblem since the defense of limitations cannot be waivedagainst the administrator's own claim should such a defensebe raised by those interested parties disputing such a claim.The majority of the Maryland Court, in referring to thisstatute, merely stated that "[ti his section is not strictlyapplicable because the administratrix and the claimant arethe same person, and she is simply not in a position to resisther own claim on any ground". They then cite in supportof this Semmes v. Young where it was merely held thatsince an administrator cannot sue himself, limitations donot continue to run while he occupies the dual position.8Hence, the majority was aware of the existence of this con-flict of interest, but they failed to provide any remedy toalleviate such a conflict. Certainly the sisters had a rightto have the claim of the administratrix rest upon the samefooting as that of any other creditor and be barred by limi-tations which had already run at the date of the adminis-tratrix's appointment if the administratrix chose to pleadit.? But, under the ruling of this case, limitations cannot beraised by those disputing the claim of the administratrix.Thus, the only available remedy for the sisters would beto have the issue of the validity of the claim sent to a courtof law, or, should the Orphan's Court allow the widow'sclaim, then to appeal to the Court of Appeals. 0 But, ineither event, the statute of limitations obviously would notbe pleaded by the widow against herself, and, thus theproblem of this conflicting interest still remains.It is a well settled rule in many jurisdictions that thefact that an administrator or executor claims a personal in-terest in the assets of his decedent's estate, adverse to orconflicting with the claims of other persons interested insuch estate, may be grounds for his removal or the revoca-tion of his letters." In many states, in order to avoid thisadverse interest problem, the statutes provide that theclaim of the administrator be submitted to arbitrators orthe estate, and that the other interested parties should then judge as tothe propriety of waiving the statute as to his claim. See also 8 A. L. R.2d 660.8 Supra, n. 1, 281; 10 Md. 242 (1856).9lbid, 247. See MD. CoDm (1951) Art. 93, Sec. 103."o Sullivan v. Doyle, 193 Md. 421, 429, 67 A. 2d 246 (1949) ; Bell v. Funk,75 Md. 368, 372, 23 A. 958 (1892)." See Carpenter v. Planck, 304 Ky. 644, 201 S. W. 2d 908 (1947) ; Price'sAdm'r. v. Price, 291 Ky. 211, 163 S. W. 2d 463 (1942); In Re Guzzetta'sEstate, 97 Cal. App. 2d 169, 217 P. 2d 460 (1950) ; In Re Palm's Estate,68 Cal. App. 2d 204, 156 P. 2d 62 (1945) ; Raleigh v. Raleigh, 153 Ohio St.160, 91 N. E. 2d 241 (1950) ; In Re Stauffer's Estate, 57 N. E. 2d 145 (Ohio1943) ; In Re Koretzky's Estate, 8 N. J. 506, 86 A. 2d 238 (1951).1957]MARYLAND LAW REVIEWthat an administrator ad litem be appointed for the solepurpose of resisting the claim.12 However, in Marylandthere are no such statutes. Instead, "if any creditor, legateeor next of kin desires to resist passage of such a claim, hemay have issues sent to a court of law, or if the claim hasbeen passed by the Orphans' Court and his rights are im-paired thereby, he may appeal to the Court of Appeals"."3Normally, this procedure would be sufficient to avoid theadverse interest problem as to the claim's validity, sincethe claim could be litigated in a proper judicial mannerwithout allowing the administrator to take undue advan-tage of the contesting party as a result of his fiduciary posi-tion. This would necessarily follow in the normal casesince the Court has recognized that an administrator, inmaking his claim against the estate, is not acting in hisrepresentative capacity, but is acting in his own individualcapacity. 4 In the usual case, the administrator stands uponthe same footing as any other creditor in regards to hisclaim against the estate. But such a procedure does notput the administrator's claim upon the same footing withother creditors when limitations are involved, and thisprocedure does not avoid the conflicting interest element insuch a case. Thus, in Maryland, there seems to be no wayof eliminating this problem of the adverse interest of theadministrator, when limitations are raised against his claim,other than to require his removal.The majority opinion indicated that the Maryland stat-utes do not provide in express language for the removal ofan administrator where an adverse interest is shown toexist. This, to a certain extent, is true. However, onlythree jurisdictions have statutes in which there is such ex-press terminology. 5 Yet, even in those jurisdictions wherethe statutes lack this precise language, the courts have con-strued the statutes as contemplating that there shall be anadministrator who is suitable to represent the interests in-volved and then have ruled that an adverse interest is suffi-cient to render him unsuitable and to require his removal. 6Furthermore, the language of the Maryland statute couldalso be construed to give the Orphan's Court a sufficientlybroad power to grant removal solely because of an adverse"See 2 WOERNEaR, AMER.ICAN LAW OF ADMINISTRATION (3rd Ed. 1923),Sec. 395.Sullivan v. Doyle, 8upra, n. 10, 429."Hayden v. Stevens, 179 Md. 16, 16 A. 2d 922 (1940)."41 FLA. STAT. (1955) Ch. 734, §734.11 (10) ; 4 COwP. LAWS MICH. (1948)§704.48; ANDERSEN'S OH. REV. CODE (1953), Sec. 2113.18.10 Putney v. Fletcher, 148 Mass. 247, 19 N. E. 370 (1889) ; Barnett's Adm'r.v. Pittman, 282 Ky. 162, 137 S. W. 2d 1098, 1100 (1940).[VOL. XVIITALBERT V. REEVESinterest."' In Carey v. Reed,"s the Court quoted the fol-lowing passage from Schouler's work on Executors andAdministrators: 19"'It is perceived that statutes of this character con-fer upon the Court, and most appropriately too, a broaddiscretion as to the various instances which may justifyremoval. Whenever, from any cause, the executor oradministrator becomes unable to perform properly thesubstantial duties of his office, he may be regarded asevidently unsuitable'."and continued:"The Legislature, by the language of Code Art. 93,Section 230,20 which declares that: 'The Court shallhave full power * * * to secure the rights of orphans andlegatees, and administer justice in all matters relativeto the affairs of deceased persons', meant to enlarge itsdiscretion and relieve it of a too narrow constructionof its powers."Thus, though the Court has previously held that an admin-istrator may be removed only for legal and specific causes,2it would seem to be within the Court's discretion to deter-mine just what that legal and specific cause shall be.Furthermore, as the dissenting opinion has pointed out,the power of the Orphan's Court to remove an administra-tor solely because of conflicting interests has been recog-nized by way of dicta in a number of Maryland cases andmay be considered as a sufficient legal and specific causejustifying removal.22The majority opinion also refers to the Maryland stat-ute's provision that a creditor may administer an estate inthe absence of blood relatives2" as indicating that an ad-verse interest is not in itself a ground for removal. This.MD. CODE (1951) Art. 93, Sec. 254:"The Court shall have full power to ... secure the rights of orphansand legatees and administer justice in all matters relating to the affairsof the deceased persons, . ."82 Md. 383, 395, 396, 33 A. 633 (1896).See. 154, fn. 1 of 1910 ed.10 Now MD. CODE (1951) Art. 93, Sec. 254.21 Fulford v. Fulford, 153 Md. 81, 92, 137 A. 487 (1927).See the following cases discussed in the dissenting opinion of the prin-cipal cases, at pages 287 to 290; Owings v. Bates, 9 Gill 463 (1851) ; Cox v.Chalk, 57 Md. 569 (1882) ; Bates v. Revell, 116 Md. 691, 82 A. 986 (1911) ;Wingert v. Albert, 127 Md. 80, 95 A. 1055 (1915) ; Haas v. Reimers, 177Md. 567, 10 A. 2d 705 (1940)."MD. CODE (1951) Art. 93, Sec. 33: - "If there be no relations administra-tion shall be granted to the largest creditor ... "1957]MARYLAND LAW REVIEWdoes not necessarily follow. Blood relatives are alwaysgiven the preference to administer the decedent's estatesince they would have some interest in conserving the de-cedent's assets. Certainly they would have a beneficial in-terest in the estate to the extent that they would be en-titled to the residue of the estate after all prior claims aresatisfied. Along these same lines it would seem that, in theabsence of blood relatives, it would be more beneficial toallow a creditor to administer the estate than it would beto allow a total stranger to be administrator. At least acreditor has an interest in conserving the assets of the in-testate debtor for the purpose of paying his own claim.2 4So, in this respect, it cannot be said that a creditor's in-terest in administering the estate is any more adverse thanwould be that of a blood relative. As to this creditor's ownclaim, issues could always be sent to a court of law shouldother interested parties desire to resist it. It is only whenlimitations face this creditor's claim that the Maryland pro-cedure fails to eliminate this adverse interest problem, andin such a case, it would be immaterial whether the adminis-trator pressing his claim was a creditor or a blood relative.In conclusion, it seems clear that the unavailability oflimitations to the parties resisting the administrator's claimcreates an adverse interest problem. Since, in such a situa-tion, the Maryland procedure is not adequate to eliminatesuch a conflict, and in view of the broad discretionary powergiven the Orphan's Court by the Maryland statute and ofthe practice in the majority of jurisdictions under similarstatutes, it would seem fair to all parties concerned thatsuch an administrator be removed because of the conflict ofinterests and a new one appointed.LEROY HANDWERGERRecrimination As Bar To Divorce On Ground OfThree-Year Voluntary SeparationMatysek v. MatyseklIn this divorce action the wife (appellee) was grantedan absolute divorce on the ground that the parties hadvoluntarily lived separate and apart, without cohabitation,24 Barton v. Tabler, 183 Md. 227, 37 A. 2d 266 (1944). See also 33 C. J. S.938, Executors and Administrators, Sec. 41.1 212 Md. 44, 128 A. 2d 627 (1957), cited in Hughes v. Hughes, ... Md.132 A. 2d 119, 120 (1957).(VOL. XVII

Removal of Administrator Because of Conflicting Interests - Talbert v. Reeves

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