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(— Md. —, 133 Atl. 128.)

the first twenty thousand dollars of the estate, and on the balance of the estate not more than two per cent." Sections 228 and 229 of article 93 exempt certain clothing and food from being inventoried, and § 230 provides that, "with the exception of the articles enumerated in the two preceding sections, all the assets of the deceased shall be included in such inventory."

Section 231 provides that "the following shall be deemed and taken for assets in the hands of an administrator, to wit: Leases for years,

and every species of personal property."

And § 223 provides for additional inventories in case any property or assets of any kind not mentioned in any inventory already made "shall come to the possession or knowledge of an administrator." The foregoing seem to constitute all the statutory provisions in this state which could materially affect the question before us.

Turning to the decisions of the court, we find that our predecessors, in the case of Handy v. Collins, 60 Md. 229, 45 Am. Rep. 725, declined to allow an executor commissions on two bonds or single bills of a private individual. It appeared that the obligor on these bonds lived in Virginia; that the bonds had never been appraised or listed in the inventory; and that they were bequeathed specifically to the executrix who was claiming commissions on their face value. The law at that time (§ 5 of article 93 of the Code of 1860) provided that commissions should be based on the inventory, and the court, after pointing out that these bonds simply represented a private debt and calling attention to the provisions of the law regarding the listing of debts apart from the property included in the inventory, held that commissions could not properly be allowed on them, though it did say that bonds and stock in corporations "are properly appraised and go into the inventory." Subsequently, by chapter 470 of the Acts of 1884 (now codified as §

5 of article 93), it was provided that commissions should be allowed on the estate, instead of on the inventory, and the amount of commissions within certain designated limits was left to the discretion of the orphans' court. This law was before the court in the case of Hardt v. Birely, 72 Md. 134, 138, 19 Atl. 607, and in construing it, and deciding that certain private notes and bonds could be appraised and commissions allowed on the amount of the appraisement, the court said: "Considering this section alone, independent of any decisions of this court construing the law regulating the allowance of an executor's commissions prior to the act of 1884, we do not think there can be any doubt as to its meaning. The executor is to have commissions on the amount of the estate which comes into his hands in the course of administration, and with which he is properly chargeable, and for which his bond is responsible. The amount of the notes on which commissions were allowed is a part, and a valuable part of the testator's estate; but it is clear that, if the executor is to have commissions on the notes they must be valued or appraised. For it would be unjust, in many cases, to allow commissions on the face value of notes and private securities. We can see no reason, however, why a value may not be ascertained for private securities in the same, or in some other more desirable manner as is now in use to fix the value of public securities, and the other items of the inventory."

The court then distinguished that case from the case of Handy v. Collins, supra, chiefly on the ground that the law regulating the basis for fixing commissions had been changed; and also because in the Handy Case the debtor lived in Virginia and the court held that the executor in Maryland could not, by virtue of his letters here, have sued in Virginia, nor could his bond have been rendered liable for the Virginia debt; and, finally, because the executor in the Handy Case never

acquired any control over any of the money due on the bonds.

These two decisions and the statutory provisions heretofore quoted seem to furnish the only rules which have any material bearing on the question under discussion, and it is apparent that none of them are conclusive on that question. Some of the language used in the opinions in the two cases just cited intimates that assets of a decedent located outside of Maryland should not be inventoried by a Maryland executor, unless he secures possession of them; but this language was not necessary to the decision in either of those cases, and, even if it had been the ground of the decision, it cannot be said that the executor in the present case did not acquire at least a qualified possession of the pledged stocks which are the subject of dispute. It is conceded that the trust officer of the appellee went to New York and Cleveland; that in the former place, where by far the greater part of the securities were held, he was shown the stock of Mr. York; that these stocks were then sold by the bankers who held them, not at their own discretion, but at the direction of the executor; that these sales were reported to the orphans' court by the executor as having been made by it, and that, after about $600,000 had been paid to Jessop and Lamont, the executor itself advanced about $120,000 for the payment of certain balances due these and other bankers, and took over and sold the stocks held as collateral for these balances.

In addition to this, the record shows that Mr. York owned more than 50,000 shares of stock distributed among 39 different corporations; that he had varied interests in Baltimore, New York, Cleveland, and Florida; that he owed large sums of money in various places and that the liquidation of these obligations without serious loss and sacrifice required constant care and attention over a period of almost a year; that more than 60 claims of various sorts were made against the

estate, the disposition of which involved a large amount of correspondence; that tax question arose with various states, as well as with Maryland and Baltimore city, and that the work of the executor also included the sale of a yacht in Florida, and the handling of a multitude of other details which would naturally arise in the working out of so large and intricate an estate. It also appears that as a result of the careful management of the estate and the judicious sale of more than half the decedent's securities a net profit of more than $47,000 over and above the inventory figures was realized. And finally, the orphans' court, in its opinion, says that “it is the long established practice of this court to approve and ratify inventories where the whole estate is returned regardless of the liens and claims against any or all of its assets and to fix commissions based on the inventory."

There is nothing in this practice at variance with our statutes, and in fact the provisions requiring the listing of all assets and of all debts would seem to indicate that this is the correct practice, at least so far as assets within the state of Maryland are concerned. When it comes to foreign assets, we find the general rule thus stated in 23 C. J. 1148: "An executor or administrator qualifying in the state of the domicil of the testator has title ultimately to the assets, wherever they may be situated, subject, however, to the satisfaction of local creditors and claimants, and ought to consider all the chattels of his decedent wheresoever situated as assets, if by reasonable diligence he may pursue and possess himself of them."

In the present case the executor did pursue the decedent's foreign assets, secured the consent of the creditors who held them to dispose of them in accordance with the executor's orders and directions, and by reason of its diligence, care, and skill these assets netted the estate a profit in excess of $47,000. Under

(Md., 133 Atl. 128.)

these circumstances, we think the orphans' court properly allowed these assets to be inventoried at their market value. It may be that the executor could not have prosecuted a claim for these assets in the states in which they were located, but in this case there was no need to prosecute any claims. The creditors who held these assets recognized the executor in Maryland as the ultimate holder of them, and without the granting of ancillary letters or other legal formalities, they agreed to sell them for the executor as and when directed by it. These facts seem to us to dispose of the contention that the executor exercised no control over these assets, and to bring this case within the rule laid down in 23 C. J. supra, that an executor "ought to consider all the chattels of his decedent wheresoever situated as assets, if by reasonable diligence he may pursue and possess himself of them."

And if they are assets, then, under the provisions of § 230 of article 93 of the Code, they were properly inventoried.

We express no opinion as opinion as to whether such securities should be deemed assets in a case where the executor exercised no control over their disposition, and only received the net proceeds resulting from their sale by the foreign creditors who held them; nor are we to be understood as passing on the question of whether the executor's bond in this case would have been responsible for the negligent sale of the securities, or liable in the event of the failure of any of the bankers who held them. None of these questions are before us and we held on margin. are not undertaking to decide them. We simply hold that under the facts and circumstances of this case, as disclosed by the record, the orphans' court of Baltimore city committed no error in permitting these securities to be inventoried at their appraised value, and in allowing commissions on this amount.

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It should be noted in this connection that our statutes vest a wide discretion in the orphans' court in fixing the amount of the commissions to be allowed executors or administrators, and most if not all of the cases of hardship pictured by the appellant as possibly resulting from the placing of the full value of pledged assets in an inventory where the sums secured by them are almost equal to the value of the assets can be taken care of by regulating the percentage of commission, and this method of handling the matter would seem to have been the intention of the legislature. The purpose of administering estates is to enable all those entitled to it as creditors or beneficiaries to know what it is and to secure their just share of it. The listing of all property, whether pledged or not, in the inventory, and the returning of all debts due the decedent, show the gross value, while the claims passed against the estate show the obligations. The proper disposition of the property and the efficient collection of the debts may have a great deal to do with the final net worth of the estate, and it would seem that those interested should have the right to know how the executor or administrator carries out these duties. The whole matter is carried on under the direction and supervision of the orphans' court, and under the discretion vested in it by the law that court is able, by regulating the amount of commissions, to compensate the executor or administrator in accordance with the skill and fidelity with which the estate has been administered. And as the settlement of an estate which is heavily indebted invariably requires more work and attention than does one which is comparatively free from debt, it would seem to be in every way the part of wisdom to permit the executor or administrator to place in the inventory all the property of the estate which in any way comes under his control, and to receive as commissions such percentage on the whole estate as the court

may, within the discretion given it by the law, deem just.

It should also be noted that in the case now before us the remaindermen have filed an answer admitting that the commissions allowed were fair and reasonable, and consenting to their payment to the executor.

The next point to be considered is whether certain interest items paid the bankers on the decedent's loans, pending the liquidation of his accounts, should be charged against the income of the life tenants, as it was in the account stated below, or should be charged against the corpus of the estate. These items amounted to $8,953.97, and the appellant contends that as the continuance of the loans on which this interest was paid resulted in the executor selling certain of the pledged securities at prices which added $47,000 to the corpus of the estate, the items should be charged against the corpus. The appellees, on the other hand, alleged that, as the dividends received by the life tenant from the stocks pledged for the loans exceeded the amount of interest charged against her income, the interest was properly so charged, and they further contend that it was the testator's intention, as disclosed by his will, that this interest should be charged against the income of his estate.

The leading case on this subject in Maryland is Wethered v. Safe Deposit & T. Co. 79 Md. 153, 28 Atl. 812, and in the course of the opinion, which was written by Judge Boyd, the court said: "Annuities given by wills ordinarily commence from the testator's death, and, according to most authorities, a bequest of the residue of the personal estate for life, with the remainder over, generally entitles the life tenant to the income, commencing with the death of the testator; certainly as between the life tenant and remainderman. Of course, the income from all the personal estate is as liable for the debts of the decedent as the principal, and must be so applied, if necessary; but when the

estate is ample to pay all debts, expenses of administration and legacies, and there still remains a considerable residue, the income of which is, by the terms of the will, to be paid to life tenants, and then the corpus or principal to go to remaindermen, the above principles will apply, unless the testator has provided otherwise, or there be some peculiar circumstances which would change the general rule. If the intention of the testator can be gathered from the will, his wishes should be gratified in these matters, as well as others, unless in conflict with some well-established rules of law."

It was then held, quoting for convenience from the headnote, that "where a testator gave all the rest and residue of his estate, of every kind, to one, in trust, to divide all the net income of his whole estate into five equal parts, and semiannually to pay one portion to each of five named persons for life, with remainder over, the life tenants are entitled to the whole net income from the residue of the estate from the death of the testator, and no portion of such income is liable for his debts or the costs of administration; the same being payable out of the corpus of the estate."

It was further held in that case that the testator's will seemed to indicate an intention on his part that the debts and expenses be paid from the principal, and that under all the circumstances it would be inequitable to require the life tenants to pay the debts and expenses from the income.

In Merryman v. Lorg, 49 Md. 545, it was decided that the income received by the executor during the first year after the death of the testator should be applied to the payment of debts and expenses of administration and in Abell v. Abell, 75 Md. 64, 23 Atl. 71, 25 Atl. 389, it was decided that the income was not responsible for debts and expenses. Both of these cases were discussed in the opinion in the Wethered Case and all three cases, together with some others, were re

(— Md. —, 133 Atl. 128.)

ferred to by Judge Boyd in the course of his opinion in Hunter v. Hersperger, 96 Md. 292, 295, 54 Atl. 67, as follows: "In each of those cases the decedent left a will, and while questions as to when interest should begin to run on various kinds of legacies and when incomes should be paid to life tenants were considered, the familiar principle that such questions must be governed by the intention of the testator, when that can be ascertained from the will, was fully recognized and applied." These authorities seem to establish that the most important consideration is the intention of the testator, and that where his intention, as expressed in his will, does not indicate anything to the contrary, the life tenant, at least in the absence of special circumstances, is entitled to the income from the residue of the estate from the time of the testator's death.

The will in the present case directs that all the testator's debts shall be paid out of his estate "as soon as the same can conveniently be done." It then bequeaths $5,000 to a hospital and $100,000 to the testator's wife and then gives, devises, and bequeaths "all the rest, residue and remainder" of his estate to the Maryland Trust Company in trust to pay "all charges and expenses necessary and requisite for the proper care, management and preservation of the trust estate," including reasonable compensation to the trustee. The will then directs the trustee to pay an annuity from the net income to the testator's mother-in-law, Mrs. Read, and it then provides that "the balance of said net income derived from said trust estate, . . . my said trustee shall pay over quarterly to my wife, Mary Read York, so long as she shall live."

There are other provisions regarding the distribution of the remainders, and there is also a codicil, but these parts of the will throw no light on the matter under discussion.

It seems to us that the provisions: above set out indicate an intention on the part of the testator to give his wife certain income from the time of his death, free and clear of debts and expenses, but we do not think they show an intention to give her the income from his gross estate. The will first provides for the payment of his his debts, which amounted amounted to nearly $1,000,000; then, after making two bequests, one of which was the sum of $100,000, or its equivalent in securities, to his wife, it gave "the rest, residue and remainder" to the trustee, and directed the trustee, after paying a small annuity to Mrs. Read, to pay "the balance of said net income derived from said trust estate" to the testator's wife.

There is no provision requiring the payment of the income from the entire estate to the appellant. The will specifically limits her income to the balance of income received from the trust estate, and the trust estate is not the testator's gross estate, but "the rest, residue and remainder" of his estate after the payment of the debts and specific legacies. Even if these provisions do not indicate clearly and positively an intention on the part of the testator to limit his wife's income to the income from his net estate, after the payment of debts and legacies, they certainly cannot be said to indicate in any way a contrary intention; and, as we saw above, in the absence of a contrary intention on the part of the testator exhibited in his will, the general rule is that a life tenant, though entitled to Life tenants income from the to what indeath of the testator, is only entitled to the income on the residue of the estate.

terest attaches.

This principle, which is supported by the great weight of authority is clearly recognized in the Wethered Case, supra, in which Judge Boyd' said: "Of course, the income on so much of the principal as must be sold and used for the purposes herein stated [payment of debts and expenses], will not be payable to the

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