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of any of the property. Add that such action the value of about twelve hundred dollars, was erroneous, there being no allegation of and, by undue influence practiced upon the facts showing lack of testamentary capacity, or undue influence, or the value of the prop

said Rachel A. Johnston, obtained her mark erty conveyed to each child, other than the to said conveyances; that the said Rachel A. bare allegations of the pleader, and defend- Johnston, when of sound mind, was able to ants, as heirs, being entitled to two-thirds of

write her name, and would have signed and the entire estate, and it not appearing that the property was being wasted or improperly dealt

sealed said papers, if in sound mind, and it with.

had been her wish to do so; that the effect

of said conveyances, if permitted to stand, Appeal from circuit court No. 2 of Balti

would be to make an inequitable and unjust more city; Pere L. Wickes, Judge.

division of the personal estate of the said Suit by Agnes J. Lippert and another

Kachel A. Johnston among her said children, against William J. Johnston, individually and as administrator of the estate of Rachel A.

to the injury and prejudice of” the plaintiff

Agnes J. Lippert, "and contrary to the exJohnston, deceased, and another. From a

pressed wishes and intention of the said Judgment appointing a receiver of certain

Rachel A. Johnston"; "that the said William property deeded by deceased to defendants,

J. Johnston, without the authority of the and restraining them from disposing of such

orphans' court of Baltimore city, assumed property, they appeal. Reversed.

and exercised the right to collect the rents Argued before McSHERRY, O. J., and FOWLER, BRISCOE, BOYD, PAGE,

from and manage all the property of the said

Rachel A. Johnston," and refused informaPEARCE, SCHMUCKER, and JONES, JJ.

tion to the plaintiff Agnes J. Lippert “as to Frederick C. Cook and D. H. Emory, for

the extent or disposition of the estate of the appellants. Charles M. Trueheart and Arm said Rachel A. Johnston until the 9th day of strong Thomas, for appellees.

August, 1902, when, upon notice of contest,

the said William J. Johnston applied for letJONES, J. Rachel A. Johnston, late of Bal. ters of administration upon the estate of said timore city, died intestate in that city about Rachel A. Johnston, and qualified as such adthe 19th of June, 1902, leaving surviving her ministrator by filing a bond in the penalty of a son, William J. Johnston, and two daugh seven hundred dollars; that upon application ters, Mary Ellen Kellen and Agnes J. Lip for letters of administration the said William pert. The last-named daughter and her hus J. Johnston informed the judges of the orband, John G. Lippert, are the plaintiffs in phans' court that the personal estate of the this cause, and the son and the other daugh said Rachel A. Johnston consisted of but a ter of the deceased are the defendants. On small amount of cash, amounting to three the 26th of August, 1902, these plaintiffs filed hundred and nine dollars and thirty-six cents; in circuit court No. 2 of Baltimore city their that said administrator has refused to acbill of complaint, in which they allege the count to the orphans' court for the property death of Rachel A. Johnston on the 19th of purporting to have been conveyed by deeds June, 1902; that she was possessed of a con. and bill of sale, and has refused to take siderable personal estate, consisting of lease necessary legal proceedings to have said conhold properties and chattels in the city of veyances set aside and annulled, that the Baltimore; that the plaintiff Agnes J. Lip- property might be brought into the orphans' pert, Mary Ellen Kellen, and William J. court for distribution; that William J. JohnJohnston are the children of the deceased, ston and Mary Ellen Kellen have entered in. and the only persons entitled to participate to possession of the properties purporting to in the distribution of her estate; that on have been conveyed to them, respectively, the 18th day of June, 1902, "when the mental and that Mary Ellen Kellen has taken poscondition of the said Rachel A. Johnston was session of the stock of goods purporting to such as to render her incapable of executing have been conveyed to her by the bill of sale, a valid deed or contract, and when she was and is selling and disposing of the same, and unable to recognize persons in her room, and commingling the same with goods purchased well known to her, the said William J. John by her.” The bill then prays that the deeds ston

presented to her for execution and bill of sale referred to therein be set four deeds, one • purporting to con aside and declared void and of no effect: vey to the said William J. Johnston the lease that an injunction may be granted, restrainhold interest in five lots of ground of the ing the defendants from disposing of any of value of about $5,000, another purporting to the property covered by the deeds or bill of convey to the said Mary Ellen Kellen the sale to them; that a receiver be appointed leasehold interest in four lots of ground of to take charge of all the said property, and to the value of about two thousand nine hun. collect the rents and profits therefrom, and dred and fifty dollars, and the third purport manage the same, pending the litigation; ing to convey to * Agnes J. Lippert that the court assume the administration of (plaintiff] the leasehold interest in three lots the estate of the deceased intestate; and that of ground of the value of about two thousand the defendants be required to account. dollars, and a bill of sale purporting to con There were filed with the bill, as exhibits, rey to the said Mary Ellen Kellen certain certified copies of the deeds and bill of sale household furniture and a stock of goods of referred to therein. On the day the bill was

filed the court below granted a preliminary in equality of division, therefore, must arise junction, and on the 16th day of Septem from a difference in amount and value of the ber, 1902, without any interinediate proceed several portions; and the real subject of conings, and without notice to defendants, pass tention is, not the whole property, but that ed an order appointing a receiver, as prayed amount of it which represents this difference in the bill. From these orders the present of amount and value that makes the inappeal was taken by the defendants, after equality. The defendants are shown to be having filed their answer.

in possession of the property conveyed to The allegations of the bill have been fully them by the deeds, and until the deeds are set out, because the appeal challenges the set aside they are invested with the legal sufficiency of these allegations to sustain the title to it. They have an undoubted right .orders appealed from, and we are not per to two-thirds of the whole property, subject mitted, in the present attitude of the case, to rights of creditors, as next of kin to their to look beyond the bill and exhibits to de mother; assuming the deeds to be invalid. termine this question. McCann v. Taylor, 10 It will thus be seen, from the allegations of Md. 418; Blondheim v. Moore, 11 Md. 365; the bill as to values, that the amount of Lamm & Hughes v. Burrell, 69 Md. 272, 14 | property really involved in the contention Atl. 682. It will not be necessary to multiply here bears but a small proportion to the authorities to ascertain the principles or rules whole property which is affected by the orof law that are to guide an inquiry of this ders here under review, and to the larger character. In the case of Blondheim et al. part of which-two-thirds of the whole-the v. Moore, supra, it was said in reference defendants have an undoubted right. This to the power of the court to appoint a re being the situation with respect to the propceiver "(1) that the power of appointment is erty involved in the controversy, and the a delicate one, and to be exercised with rights of the parties therein, what appears great circumspection; (2) that it must ap as a basis for summary process? In the pear the claimant has a title to the prop first place, the valuation given to the property, and the court must be satisfied, by aff erties embraced in the several deeds referred davit, that a receiver is necessary to pre to in the bill appears as resting on the bare serve the property; (3) that there is no case assertion of the pleader. There is nothing in which the court appoints a receiver mere to show that the values assigned to the ly because the measure can do no harm; (4) respective properties are anything more than that fraud or imminent danger, if the inter mere arbitrary statements of value. No mediate possession should not be taken by prima facie evidence is adduced, and no fact the court, must be clearly proved; and (5) is stated in that connection, going to give that, unless the necessity be of the most color to the values assigned. In respect to stringent character, the court will not ap one of the defendants, Mary Ellen Kellen, point until the defendant is first heard in there is no charge that she has been guilty response to the application." And in the of, or was in any way connected with, any more recent case of Lamm & Hughes V. improper act in acquiring title to or possesBurrell, 69 vd. 272, 14 Atl. 682, it was said sion of the property in controversy. It is "that, to warrant the court in issuing an alleged that the defendant William J. Johninjunction, a full and candid disclosure of ston had refused to account to the orphans' all the facts must be made. There must be court for the property embraced in the deeds. no concealment, and the res gestæ must be This he was not required to do, if the deeds represented as they actually are.

were, as he claimed them to be, valid. It is The court must be informed by the bill it further alleged that the defendants had enself and its accompanying exhibits, if any, tered into possession of the properties purof every material fact constituting the case porting to have been conveyed to them, reof the plaintiff, in order that it may be seen spectively, by the deeds that are assailed, whether there is a just and proper ground and that the defendant Mary Ellen Kellen for the application of so summary a remedy. had taken possession of the stock of goods Strong prima facie evidence of the facts on purporting to have been conveyed to her which the plaintiff's equity rests must be by the bill of sale, and was selling and dispresented to the court." These propositions posing of the same, and commingling them may be regarded as settled in the decisions with goods since purchased by her. This of this state. The application of the prin the defendants had a perfect right to do if ciples thus enunciated in any given case is the deeds and bill of sale were valid conaddressed to the sound discretion of the veyances. How does the bill attempt to court. The bill here charges that the deeds show color or support for the claim that the which are sought to be annulled, if allowed deeds were not good legal conveyances? Onto stand, will make an "inequitable and un ly by the general averments that the grantor just division" of the property which is the therein was, at the time the deeds purported subject of this controversy among the chil to have been executed, in a mental condren of Rachel A. Johnston. The deeds that dition to render her incapable of executing a are attacked make division of the property valid deed or contract, and that, being in left by the said deceased among all three that condition, the deeds were obtained by of the children. Each gets a portion. In undue influence practiced upon her. The

vagueness of this charge is apparent from be passed against them in the cause. On the inconsistency involved in it. Undue in the contrary, it appears that they would be fluence presupposes mental capacity to do able to so respond. In short, no such fraud the particular act which its exercise brings or condition of imminent danger or stringent about. Stirling v. Stirling, 64 Md. 138, 151, necessity is made to appear as to warrant 21 Atl. 273. In cases involving questions of the appointment of a receiver before the dethe existence vel non of capacity to execute fendants were "heard in response to the apa valid deed or contract, or of undue in plication." fluence, it is the well-recognized province of Some other aspects of the case were rethe court to define what facts will constitute ferred to in the argument, which it is not or be sufficient to show the one or the other, necessary to discuss. as the case may be; and these facts must It follows that the orders appealed from be found, and, when found, mental inca must be reversed. Orders reversed, with pacity, to the extent sufficient to avoid the costs to the appellants. act in question in the particular case, or undue influence, is a result deduced from them. So, in a case of this nature, where, as we

(96 Md. 518) have seen, there must be made "a full and

GILL V. DONOVAN. candid disclosure of all the facts,” and “the

(Court of Appeals of Maryland. Feb. 11, 1903.) res gestæ must be represented as they ac

SERVANT-WAGES- LIMITATIONS - ACKNOWLtually are," it is not sufficient, as affording

EDGMENT OF DEBT-ADMISSIBILITY OF a satisfactory basis for summary action, for

EVIDENCE-INSTRUCTIONS. the pleader to characterize for himself the 1. In an action against an estate for services, mental condition that may exist in the par

brought 10 years after their rendition, plain ticular case as one that renders the subject

tiff's stepmother testified as to the services, and

that decedent had, three months before her of it incapable of executing a valid deed death, told witness that, though she had not or contract, or the influence that may be paid plaintiff vet, she would pay her, and that present to affect the act performed as undue

decedent was referring to the debt in cuntro

versy. There was other testimony of an acinfluence, without the allegation or disclo

knowledgment of the debt on the part of the sure of facts necessary to enable the court deceased. Held, that it was a question for the to see whether the conclusions of the plead. jury whether there was a new promise, so as er have a reasonable and probable basis. In

to interrupt the running of limitations.

2. Where a debtor acknowledges a debt As the bill which brings up this controversy no due, and states that she is going to pay it, the fact is alleged going to show the mental obligation to pay is not impaired by her excondition of the grantor in the deeds in

pressed intention to discharge the obligation

by a bounty to the creditor under her will. question at the time of their execution by

3. Where, in an action against an estate for her, other than that "she was unable to services, a witness testified that decedent had recognize persons in her room, and well told plaintiff she would pay her at her death,

and that she had it in her will, such testimony known to her," which may have been due

is sufficient to support a modification of an to other causes than the absence of a ca instruction, on the defense of limitations, that pacity to execute a valid deed or contract. plaintiff's claim was not barred if the jury In respect to undue influence, it is merely

found that decedent promised that the debt

should be paid at her death. alleged that, while the grantor was in the

4. The refusal of a requested instruction is mental condition alleged by the pleader, the not error, when it is substantially included in defendant William J. Johnston “presented to

another instruction granted. her for execution four deeds,

and,

5. In an action against an estate for services

rendered by a young girl, evidence is admissible by undue influence practiced upon” her, “ob to show whether any one else did the sort of tained her mark to said conveyances.” No services plaintiff was employed to do, and act or conduct on the part of this defend

whether she was sent to school during any

part of the time she was with decedent. ant that amounted to or which shows undue

6. Where, in an action against an estate for influence, as the law defines it, is made to services rendered by a young girl, defendant's appear. Again, it is not shown that the proof proceeded on the theory that plaintiff

was with the decedent as a member of the property in question here is in danger of be

family, and not as a domestic, and testimony ing wasted or lost, or of being put beyond had been offered that she was a niece of dethe reach of the process of the court upon cedent, there was no error in admitting evia final adjudication between parties, “if the

dence that the relationship was of the half

blood. intermediate possession should not be taken

7. Where, in an action against an estate for by the court." No act or even threat on the services, limitations have been pleaded, evipart of the defendants, suggestive of any

dence that decedent had admitted, within time such danger, is alleged or charged. It is

before the suit was brought, that she had not

paid plaintiff anything for her services, was merely alleged that they are in possession material. of the property, exercising the ordinary rights 8. Where, in an action against an estate for pertaining to ownership. The bill prays, in

services rendered, plaintiff's bill of particulars

did not define just what the services were, or addition to asking that the deeds to the the time during which they were performed, property be set aside, that the defendants be but the proof showed a verbal contract, and required to account; and it is not alleged

that it had been executed, except as to the that they are insolvent, or would not be

payment of the compensation due, evidence in

regard to the value of the services was adable to respond to such final decree as might missible.

Appeal from Baltimore city court; John nor in the instructions in the case, is there J. Dobler, Judge.

any reference to the matter of the appelAction by Margaret Donovan, by Edward lant's fourth plea. We therefore are not L. Donovan, her husband, against Roger T. concerned with any question in that connecGill, administrator of the estate of Cath tion, and may dispose of other questions arine L. Staylor, deceased. Judgment for without reference to this plea. The claim plaintiff, and defendant appeals. Affirmed. which is the basis of the plaintiff's suit is,

Argued before MCSHERRY, C. J., and as has been seen, for money due her for FOWLER, BRISCOE, BOYD, PAGE, services rendered the appellant's intestate, SCHMUCKER, and JONES, JJ.

Mrs. Catharine Staylor, between September,

1886, and October, 1890. This suit was William S. Bryan, Jr., and R. E. Lee Gill,

brought April 16, 1900-about 10 years after for appellant. Robert W. Beach and Chas. Morris Howard, for appellee.

the rendering of the services. The plea of tbe statute of limitations, therefore, upon the

appellant's theory of the case, will be a JONES, J. The appellant is the admin complete bar to the recovery by the plaintif istrator of Catharine L. Staylor, and as such in this suit, unless the replication of a new was gued in the Baltimore city court by promise be supported by the proof. tbe appellee for inopey claimed to be due After all the evidence was in at the trial the appellee for services rendered the ap below, the appellant offered a prayer (being pellant's intestate in her lifetime. The dec tbe first of his prayers) to the effect that there laration contained only the common counts, was “no legally sufficient evidence to remove and the appellant demanded a bill of par the bar of the plea of the statute of limitaticulars in response, to which the appellee tions." This prayer the trial court rejected. filed the following statement of her claim: Whether there was error in this may be re"Complying with defendant's demand for a garded as a question in limine, for, if this bill of particulars, the plaintiff begs to state prayer asserts a correct proposition as reas follows: That on or about the 5th day of spects the evidence in the cause, all other September, 1886, the plaintiff was employed propositions would become moot questions. by Catharine L. Staylor, deceased, as a do There was no error in this ruling. Among inestic, at $2.50 per week; that the plaintiff other witnesses in the cause, a Mrs. Carr remained in the employ of the said Cath testified that she was the stepmother of the arine Staylor, deceased, until about the 10th plaintiff; that the plaintiff (appellee here) day of October, 1890, making a total of two was living with her at the time "she went hundred and ten weeks, which, at $2.50 per to Mrs. Staylor's”; that after her (appelweek, makes due her, in all, the sum of $525, lee's) father died "she went to work with a no part of which claim was ever paid to her." little girl friend of hers, and was making The appellant then pleaded the general issue $2.50 a week. She continued at that work pieas and the statute of limitations, as, also, until she went to Mrs. Staylor's.” The witwant of assets. The appellee took issue on ness then further testified that “Mrs. Staythe other pleas, and, to the plea of limita lor said she would like to have Maggie with tions, replied new promise, upon which issue her, and she would give her the same wages was joined. The questions in the case are that she had at the store where she worked made mainly upon the effect of the bill of then, so Maggie went to her. Mrs. Staylor particulars and upon the plea of limitations. told me this. And then, later on, I called to The record shows there was a motion in ar see her there, and quite three months before rest of judgment, but this was abandoned she died, and she told me she intended to do in this court. The matters for review here well by Maggie (appellee), though she had are presented by eight exceptions to the not paid her yet, but she would pay her, and rulings of the trial court upon objections to she intended to give her more than wages; evidence made by the appellant and over and she said she would give everything to ruled by the court, and an exception by the Johnnie and Maggie. This was not quite, appellant to the action of the court in grant but nearly, three months before Mrs. Staylor ing an instruction asked for by the appellee, died." From other proof it appeared Mrs. and the overruling of special exceptions there Staylor died in October, 1899. Here was to, and the rejection of certain instructions testimony tending to prove the appellee's asked for by the appellant. The instructions claim as set out in her bill of particulars; proposed by the appellant were eleven in and assuming the debt claimed by the apnumber, of which the court rejected the pellee to be due to her by Mrs. Staylor to 1st, 2d, 3d, 5th, 6th, 7th, 9th, 10th, and modi. have been proved by this, or by this and tied the 11th, and granted the same other proof, the testimony also tended to modified, and granted the 4th, 8th, and 9th show that Mrs. Staylor, in the conversations as offered.

detailed by the witness, was referring to this There was an agreement that in case of a debt. If so, when she said she had not paid verdict for plaintiff "the judgment thereon the appellee “get," and that she “would" pay should be to bind assets only in the hands her, and more than "wages," this was a of the administrator.” This, evidently, is the sufficient acknowledginent to take the case reason that neither in the evidence offered, out of the operation of the statute of limita

as

tions. Shipley and Wampler, Extrs., v. Shill he is in the case at bar, for the value of ing, 66 Md. 558, 8 Atl. 355; Stewart v. Gar services rendered to his intestate in her liferett & Maus, 65 Md. 392, 5 Atl. 324, 57 Am. time, the trial court, upon a very similar Rep. 333; Becler v. Clark, 90 Md. 221, 44 condition of proof, attached to one of the Atl. 1038, 78 Am. St. Rep. 439. It did not prayers offered by the appellant a modificaimpair the obligation, which the law imposes, tion to the same effect as, and in almost to pay a debt so acknowledged, that she in identical terms with, the one we have undicated an intention to discharge the ob der consideration; and the same was approve ligation by bounty to the appellee under her ed by this court. We see no reason why will. The acknowledgment of a subsisting the part of the instruction in that case which debt, unaccompanied with any sufficient ex was embodied in the court's modification cuse for not paying it, will remove the bar is not equally appropriate here. We find no of the statute. This was laid down in the error in this action of the court. case of Oliver V. Gray, 1 Har. & G. 204, The tenth prayer of the appellant, which and is fortified by other decisions. There was rejected by the trial court, was, in subis other testimony going to show a recogni stance and effect, the same as his eleventh tion by Mrs. Staylor that the appellee had prayer as offered. By the court's action on rendered for her services of value, and that the eleventh prayer, the appellant got the the appellee had not been paid for the same. benefit of the proposition of law embodied It was proper, therefore, that the question in these two prayers, as far as he was, upon of new promise raised by the plaintiff's repli the evidence, entitled to the same. There cation to the plea of limitations should be was no error, therefore, in the court's action submitted to the jury; and, before leaving as to this tenth prayer. this aspect of the case, we may inquire Before adverting to other prayers embrawhether it was properly submitted.

ced in the appellant's ninth exception, the The appellant offered two prayers-his exceptions to evidence will be disposed of, tenth and eleventh-defining the character In the first exception, the question objected of the acknowledgment or promise that to was, did Mrs. Staylor herself do work ought to be found by the jury to remove the about the house while appellee was with bar of the statute. The eleventh prayer her? The fourth was to the question, were asked that the jury be instructed that, "un there other servants about the house? And der the pleadings in this case, they must the eighth was whether anything was done ind, by a fair preponderance of evidence, to educate the appellee—was she sent to that within three years before her death school? There was no error in overruling Mrs. Catharine Staylor, the defendant's in these objections. The ground of the appeltestate, either expressly promised to pay the lee's suit was that she was in the house claim of the plaintiff, sued on in this action, and family of Mrs. Staylor by reason of beor within three years made a distinct ac ing employed as a domestic; and inquiries knowledgment of it as an existing obliga whether there was any one else about the tion, which distinct acknowledgment showed household to do, or who did, the sort of a present, subsisting, moral obligation to pay service indicated in such employment, and the same." The court modified this prayer whether the appellee was sent to school, or by adding to it the following: "unless they remained uninterruptedly at the place of further find that Mrs. Catharine Staylor ex service, elicited evidence which, together pressly promised the plaintiff that the plain with the evidence in the case as to the chartiff would be paid for her services at Mrs. acter and amount of service rendered by Staylor's death." It is contended there was her while with Mrs. Staylor, tended to show no evidence to support this modification. what her position in the household of Mrs. But we find that John Staylor, a witness, Staylor really was. The second, third, and after giving testimony tending to establish seventh exceptions were to questions intendthe claim made by the appellee according ed to elicit evidence that Mrs. Staylor's to her statement of claim, testified that after relationship to the appellee was of the half the appellee entered upon service for Mrs. blood. This evidence would seem to have Staylor, and had remained there for a time, no probative force as to any issue in the she, in the language of the witness, “got cause at the time it was offered, or as the fussing about money, and said she wanted case then stood; but it had been testified money, and her aunt told her she could not that the appellee was a niece of Mrs. Staygive it to her now, but said she would give lor, and it could at least do no harm to have it to her at her death. She said she had it it explained exactly what the relationship in her will." He also testified that after this was. Especially was this so in view of the "fuss" about money the appellee left the theory upon which the appellant's proof prohome of Mrs. Staylor, and returned again ceeded, which was that the appellee was not to Mrs. Staylor's service upon the latter's with Mrs. Staylor as a domestic, but as a request. This testimony afforded a basis for relative and member of her family. In conthe hypothesis of the court's modification of nection with such proof, it was not inapthis eleventh prayer. In the case of Gill v. propriate to have the exact relationship of Sta ylor, 93 Md. 453, 49 Atl. 650, in which the the parties in question explained, for what administrator of Mrs. Staylor was sued, as it might be worth, though it might reflect but

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