of any of the property. Held that such action was erroneous, there being no allegation of facts showing lack of testamentary capacity, or undue influence, or the value of the property conveyed to each child, other than the bare allegations of the pleader, and defendants, as heirs, being entitled to two-thirds of the entire estate, and it not appearing that the property was being wasted or improperly dealt with.

Appeal from circuit court No. 2 of Baltimore city; Pere L. Wickes, Judge.

Suit by Agnes J. Lippert and another against William J. Johnston, individually and as administrator of the estate of Rachel A. Johnston, deceased, and another. From a judgment appointing a receiver of certain property deeded by deceased to defendants, and restraining them from disposing of such property, they appeal. Reversed.

Argued before McSHERRY, C. J., and FOWLER, BRISCOE, BOYD, PAGE, PEARCE, SCHMUCKER, and JONES, JJ.

Frederick C. Cook and D. H. Emory, for appellants. Charles M. Trueheart and Armstrong Thomas, for appellees.

JONES, J. Rachel A. Johnston, late of Baltimore city, died intestate in that city about the 19th of June, 1902, leaving surviving her a son, William J. Johnston, and two daughters, Mary Ellen Kellen and Agnes J. Lippert. The last-named daughter and her husband, John G. Lippert, are the plaintiffs in this cause, and the son and the other daughter of the deceased are the defendants. On the 26th of August, 1902, these plaintiffs filed in circuit court No. 2 of Baltimore city their bill of complaint, in which they allege the death of Rachel A. Johnston on the 19th of June, 1902; that she was possessed of a considerable personal estate, consisting of leasehold properties and chattels in the city of Baltimore; that the plaintiff Agnes J. Lippert, Mary Ellen, Kellen, and William J. Johnston are the children of the deceased, and the only persons entitled to participate in the distribution of her estate; that on the 18th day of June, 1902, "when the mental condition of the said Rachel A. Johnston was such as to render her incapable of executing a valid deed or contract, and when she was unable to recognize persons in her room, and well known to her, the said William J. Johnston presented to her for execution four deeds, one purporting to convey to the said William J. Johnston the leasehold interest in five lots of ground of the value of about $5,000, another purporting to convey to the said Mary Ellen Kellen the leasehold interest in four lots of ground of the value of about two thousand nine hundred and fifty dollars, and the third purporting to convey to Agnes J. Lippert [plaintiff] the leasehold interest in three lots of ground of the value of about two thousand dollars, and a bill of sale purporting to convey to the said Mary Ellen Kellen certain household furniture and a stock of goods of

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the value of about twelve hundred dollars, and, by undue influence practiced upon the said Rachel A. Johnston, obtained her mark to said conveyances; that the said Rachel A. Johnston, when of sound mind, was able to write her name, and would have signed and sealed said papers, if in sound mind, and it had been her wish to do so; that the effect of said conveyances, if permitted to stand, would be to make an inequitable and unjust division of the personal estate of the said Rachel A. Johnston among her said children, to the injury and prejudice of" the plaintiff Agnes J. Lippert, "and contrary to the expressed wishes and intention of the said Rachel A. Johnston"; "that the said William J. Johnston, without the authority of the orphans' court of Baltimore city, assumed and exercised the right to collect the rents from and manage all the property of the said Rachel A. Johnston," and refused information to the plaintiff Agnes J. Lippert "as to the extent or disposition of the estate of the said Rachel A. Johnston until the 9th day of August, 1902, when, upon notice of contest, the said William J. Johnston applied for letters of administration upon the estate of said Rachel A. Johnston, and qualified as such administrator by filing a bond in the penalty of seven hundred dollars; that upon application for letters of administration the said William J. Johnston informed the judges of the orphans' court that the personal estate of the said Rachel A. Johnston consisted of but a small amount of cash, amounting to three hundred and nine dollars and thirty-six cents; that said administrator has refused to account to the orphans' court for the property purporting to have been conveyed by deeds and bill of sale, and has refused to take necessary legal proceedings to have said conveyances set aside and annulled, that the property might be brought into the orphans' court for distribution; that William J. Johnston and Mary Ellen Kellen have entered into possession of the properties purporting to have been conveyed to them, respectively, and that Mary Ellen Kellen has taken possession of the stock of goods purporting to have been conveyed to her by the bill of sale, and is selling and disposing of the same, and commingling the same with goods purchased by her." The bill then prays that the deeds and bill of sale referred to therein be set aside and declared void and of no effect: that an injunction may be granted, restraining the defendants from disposing of any of the property covered by the deeds or bill of sale to them; that a receiver be appointed to take charge of all the said property, and to collect the rents and profits therefrom, and manage the same, pending the litigation; that the court assume the administration of the estate of the deceased intestate; and that the defendants be required to account. There were filed with the bill, as exhibits, certified copies of the deeds and bill of sale referred to therein. On the day the bill was

filed the court below granted a preliminary injunction, and on the 16th day of September, 1902, without any intermediate proceedings, and without notice to defendants, passed an order appointing a receiver, as prayed in the bill. From these orders the present appeal was taken by the defendants, after having filed their answer.

The allegations of the bill have been fully set out, because the appeal challenges the sufficiency of these allegations to sustain the .orders appealed from, and we are not permitted, in the present attitude of the case, to look beyond the bill and exhibits to determine this question. McCann v. Taylor, 10 Md. 418; Blondheim v. Moore, 11 Md. 365; Lamm & Hughes v. Burrell, 69 Md. 272, 14 Atl. 682. It will not be necessary to multiply authorities to ascertain the principles or rules of law that are to guide an inquiry of this character. In the case of Blondheim et al. v. Moore, supra, it was said in reference to the power of the court to appoint a receiver "(1) that the power of appointment is a delicate one, and to be exercised with great circumspection; (2) that it must appear the claimant has a title to the property, and the court must be satisfied, by affidavit, that a receiver is necessary to preserve the property; (3) that there is no case in which the court appoints a receiver merely because the measure can do no harm; (4) that fraud or imminent danger, if the intermediate possession should not be taken by the court, must be clearly proved; and (5) that, unless the necessity be of the most stringent character, the court will not appoint until the defendant is first heard in response to the application." And in the more recent case of Lamm & Hughes v. Burrell, 69 Md. 272, 14 Atl. 682, it was said "that, to warrant the court in issuing an injunction, a full and candid disclosure of all the facts must be made. There must be no concealment, and the res gestæ must be represented as they actually are. The court must be informed by the bill itself and its accompanying exhibits, if any, of every material fact constituting the case of the plaintiff, in order that it may be seen whether there is a just and proper ground for the application of so summary a remedy. Strong prima facie evidence of the facts on which the plaintiff's equity rests must be presented to the court." These propositions may be regarded as settled in the decisions of this state. The application of the principles thus enunciated in any given case is addressed to the sound discretion of the court. The bill here charges that the deeds which are sought to be annulled, if allowed to stand, will make an "inequitable and unjust division" of the property which is the subject of this controversy among the children of Rachel A. Johnston. The deeds that are attacked make division of the property left by the said deceased among all three of the children. Each gets a portion. In

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equality of division, therefore, must arise from a difference in amount and value of the several portions; and the real subject of contention is, not the whole property, but that amount of it which represents this difference of amount and value that makes the inequality. The defendants are shown to be in possession of the property conveyed to them by the deeds, and until the deeds are set aside they are invested with the legal title to it. They have an undoubted right to two-thirds of the whole property, subject to rights of creditors, as next of kin to their mother; assuming the deeds to be invalid. It will thus be seen, from the allegations of the bill as to values, that the amount of property really involved in the contention here bears but a small proportion to the whole property which is affected by the orders here under review, and to the larger part of which-two-thirds of the whole-the defendants have an undoubted right. This being the situation with respect to the property involved in the controversy, and the rights of the parties therein, what appears as a basis for summary process? In the first place, the valuation given to the properties embraced in the several deeds referred to in the bill appears as resting on the bare assertion of the pleader. There is nothing to show that the values assigned to the respective properties are anything more than mere arbitrary statements of value. No prima facie evidence is adduced, and no fact is stated in that connection, going to give color to the values assigned. In respect to one of the defendants, Mary Ellen Kellen, there is no charge that she has been guilty of, or was in any way connected with, any improper act in acquiring title to or possession of the property in controversy. It is alleged that the defendant William J. Johnston had refused to account to the orphans' court for the property embraced in the deeds. This he was not required to do, if the deeds were, as he claimed them to be, valid. It is further alleged that the defendants had entered into possession of the properties purporting to have been conveyed to them, respectively, by the deeds that are assailed, and that the defendant Mary Ellen Kellen had taken possession of the stock of goods purporting to have been conveyed to her by the bill of sale, and was selling and disposing of the same, and commingling them with goods since purchased by her. This the defendants had a perfect right to do if the deeds and bill of sale were valid conveyances. How does the bill attempt to show color or support for the claim that the deeds were not good legal conveyances? Only by the general averments that the grantor therein was, at the time the deeds purported to have been executed, in a mental condition to render her incapable of executing a valid deed or contract, and that, being in that condition, the deeds were obtained by undue influence practiced upon her. The

vagueness of this charge is apparent from the inconsistency involved in it. Undue influence presupposes mental capacity to do the particular act which its exercise brings about. Stirling v. Stirling, 64 Md. 138, 151, 21 Atl. 273. In cases involving questions of the existence vel non of capacity to execute a valid deed or contract, or of undue influence, it is the well-recognized province of the court to define what facts will constitute or be sufficient to show the one or the other, as the case may be; and these facts must be found, and, when found, mental incapacity, to the extent sufficient to avoid the 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 have seen, there must be made "a full and candid disclosure of all the facts," and "the res gestæ must be represented as they actually are," it is not sufficient, as affording a satisfactory basis for summary action, for the pleader to characterize for himself the mental condition that may exist in the particular case as one that renders the subject of it incapable of executing a valid deed or contract, or the influence that may be present to affect the act performed as undue influence, without the allegation or disclosure of facts necessary to enable the court to see whether the conclusions of the pleader have a reasonable and probable basis. In the bill which brings up this controversy no fact is alleged going to show the mental condition of the grantor in the deeds in question at the time of their execution by her, other than that "she was unable to recognize persons in her room, and well known to her," which may have been due to other causes than the absence of a capacity to execute a valid deed or contract. In respect to undue influence, it is merely alleged that, while the grantor was in the mental condition alleged by the pleader, the defendant William J. Johnston "presented to her for execution four deeds, * * and,

by undue influence practiced upon" her, "obtained her mark to said conveyances." No act or conduct on the part of this defendant that amounted to or which shows undue influence, as the law defines it, is made to appear. Again, it is not shown that the property in question here is in danger of being wasted or lost, or of being put beyond the reach of the process of the court upon a final adjudication between parties, "if the intermediate possession should not be taken by the court." No act or even threat on the part of the defendants, suggestive of any such danger, is alleged or charged. It is merely alleged that they are in possession of the property, exercising the ordinary rights pertaining to ownership. The bill prays, in addition to asking that the deeds to the property be set aside, that the defendants be required to account; and it is not alleged that they are insolvent, or would not be able to respond to such final decree as might

be passed against them in the cause. On the contrary, it appears that they would be able to so respond. In short, no such fraud or condition of imminent danger or stringent necessity is made to appear as to warrant the appointment of a receiver before the defendants were "heard in response to the application."

Some other aspects of the case were referred to in the argument, which it is not necessary to discuss.

It follows that the orders appealed from must be reversed. Orders reversed, with costs to the appellants.

GILL v. DONOVAN.

(96 Md. 518)

(Court of Appeals of Maryland. Feb. 11, 1903.)

SERVANT-WAGES-LIMITATIONS ACKNOWLEDGMENT OF DEBT-ADMISSIBILITY OF

EVIDENCE-INSTRUCTIONS.

1. In an action against an estate for services, brought 10 years after their rendition, plaintiff's stepmother testified as to the services, and that decedent had, three months before her death, told witness that, though she had not paid plaintiff vet, she would pay her, and that decedent was referring to the debt in controversy. There was other testimony of an acknowledgment of the debt on the part of the deceased. Held, that it was a question for the jury whether there was a new promise, so as to interrupt the running of limitations.

2. Where a debtor acknowledges a debt as due, and states that she is going to pay it, the obligation to pay is not impaired by her expressed intention to discharge the obligation by a bounty to the creditor under her will.

3. Where, in an action against an estate for services, a witness testified that decedent had told plaintiff she would pay her at her death. and that she had it in her will, such testimony is sufficient to support a modification of an instruction, on the defense of limitations, that plaintiff's claim was not barred if the jury found that decedent promised that the debt should be paid at her death.

4. The refusal of a requested instruction is not error, when it is substantially included in another instruction granted.

5. In an action against an estate for services rendered by a young girl, evidence is admissible to show whether any one else did the sort of services plaintiff was employed to do, and whether she was sent to school during any part of the time she was with decedent.

6. Where, in an action against an estate for services rendered by a young girl, defendant's proof proceeded on the theory that plaintiff was with the decedent as a member of the family, and not as a domestic, and testimony had been offered that she was a niece of decedent, there was no error in admitting evidence that the relationship was of the half blood.

7. Where, in an action against an estate for services, limitations have been pleaded, evidence that decedent had admitted, within time before the suit was brought, that she had not paid plaintiff anything for her services, was material.

8. Where, in an action against an estate for services rendered, plaintiff's bill of particulars did not define just what the services were, or the time during which they were performed, but the proof showed a verbal contract, and that it had been executed, except as to the payment of the compensation due, evidence in regard to the value of the services was admissible.

Appeal from Baltimore city court; John J. Dobler, Judge.

Action by Margaret Donovan, by Edward L. Donovan, her husband, against Roger T. Gill, administrator of the estate of Catharine L. Staylor, deceased. Judgment for plaintiff, and defendant appeals. Affirmed.

Argued before MCSHERRY, C. J., and FOWLER, BRISCOE, BOYD, PAGE, SCHMUCKER, and JONES, JJ.

William S. Bryan, Jr., and R. E. Lee Gill, for appellant. Robert W. Beach and Chas. Morris Howard, for appellee.

JONES, J. The appellant is the administrator of Catharine L. Staylor, and as such was sued in the Baltimore city court by the appellee for money claimed to be due the appellee for services rendered the appellant's intestate in her lifetime. The declaration contained only the common counts, and the appellant demanded a bill of particulars in response, to which the appellee filed the following statement of her claim: "Complying with defendant's demand for a bill of particulars, the plaintiff begs to state as follows: That on or about the 5th day of September, 1886, the plaintiff was employed by Catharine L. Staylor, deceased, as a domestic, at $2.50 per week; that the plaintiff remained in the employ of the said Catharine Staylor, deceased, until about the 10th day of October, 1890, making a total of two hundred and ten weeks, which, at $2.50 per week, makes due her, in all, the sum of $525, no part of which claim was ever paid to her." The appellant then pleaded the general issue pleas and the statute of limitations, as, also, want of assets. The appellee took issue on the other pleas, and, to the plea of limitations, replied new promise, upon which issue was joined. The questions in the case are made mainly upon the effect of the bill of particulars and upon the plea of limitations. The record shows there was a motion in arrest of judgment, but this was abandoned in this court. The matters for review here are presented by eight exceptions to the rulings of the trial court upon objections to evidence made by the appellant and overruled by the court, and an exception by the appellant to the action of the court in granting an instruction asked for by the appellee, and the overruling of special exceptions thereto, and the rejection of certain instructions asked for by the appellant. The instructions proposed by the appellant were eleven in number, of which the court rejected the 1st, 2d, 3d, 5th, 6th, 7th, 9th, 10th, and modified the 11th, and granted the same modified, and granted the 4th, 8th, and 9th as offered.

as

There was an agreement that in case of a verdict for plaintiff "the judgment thereon should be to bind assets only in the hands of the administrator." This, evidently, is the reason that neither in the evidence offered,

nor in the instructions in the case, is there any reference to the matter of the appellant's fourth plea. We therefore are not concerned with any question in that connection, and may dispose of other questions without reference to this plea. The claim which is the basis of the plaintiff's suit is, as has been seen, for money due her for services rendered the appellant's intestate, Mrs. Catharine Staylor, between September, 1886, and October, 1890. This suit was brought April 16, 1900-about 10 years after the rendering of the services. The plea of the statute of limitations, therefore, upon the appellant's theory of the case, will be a complete bar to the recovery by the plaintiff in this suit, unless the replication of a new promise be supported by the proof.

Among

After all the evidence was in at the trial below, the appellant offered a prayer (being the first of his prayers) to the effect that there was "no legally sufficient evidence to remove the bar of the plea of the statute of limitations." This prayer the trial court rejected. Whether there was error in this may be regarded as a question in limine, for, if this prayer asserts a correct proposition as respects the evidence in the cause, all other propositions would become moot questions. There was no error in this ruling. other witnesses in the cause, a Mrs. Carr testified that she was the stepmother of the plaintiff; that the plaintiff (appellee here) was living with her at the time "she went to Mrs. Staylor's"; that after her (appellee's) father died "she went to work with a little girl friend of hers, and was making $2.50 a week. She continued at that work until she went to Mrs. Staylor's." The witness then further testified that "Mrs. Staylor said she would like to have Maggie with her, and she would give her the same wages that she had at the store where she worked then, so Maggie went to her. Mrs. Staylor told me this. And then, later on, I called to see her there, and quite three months before she died, and she told me she intended to do well by Maggie [appellee], though she had not paid her yet, but she would pay her, and she intended to give her more than wages; and she said she would give everything to Johnnie and Maggie. This was not quite, but nearly, three months before Mrs. Staylor died." From other proof it appeared Mrs. Staylor died in October, 1899. Here was testimony tending to prove the appellee's claim as set out in her bill of particulars; and assuming the debt claimed by the appellee to be due to her by Mrs. Staylor to have been proved by this, or by this and other proof, the testimony also tended to show that Mrs. Staylor, in the conversations detailed by the witness, was referring to this debt. If so, when she said she had not paid the appellee "yet," and that she "would" pay her, and more than "wages," this was a sufficient acknowledgment to take the case out of the operation of the statute of limita

tions. Shipley and Wampler, Extrs., v. Shilling, 66 Md. 558, 8 Atl. 355; Stewart v. Garrett & Maus, 65 Md. 392, 5 Atl. 324, 57 Am. Rep. 333; Becler v. Clark, 90 Md. 221, 44 Atl. 1038, 78 Am. St. Rep. 439. It did not impair the obligation, which the law imposes, to pay a debt so acknowledged, that she indicated an intention to discharge the obligation by bounty to the appellee under her will. The acknowledgment of a subsisting debt, unaccompanied with any sufficient excuse for not paying it, will remove the bar of the statute. This was laid down in the case of Oliver v. Gray, 1 Har. & G. 204, and is fortified by other decisions. There is other testimony going to show a recognition by Mrs. Staylor that the appellee had rendered for her services of value, and that the appellee had not been paid for the same. It was proper, therefore, that the question of new promise raised by the plaintiff's replication to the plea of limitations should be submitted to the jury; and, before leaving this aspect of the case, we may inquire whether it was properly submitted.

The appellant offered two prayers-his tenth and eleventh-defining the character of the acknowledgment or promise that ought to be found by the jury to remove the bar of the statute. The eleventh prayer asked that the jury be instructed that, “under the pleadings in this case, they must find, by a fair preponderance of evidence, that within three years before her death Mrs. Catharine Staylor, the defendant's intestate, either expressly promised to pay the claim of the plaintiff, sued on in this action, or within three years made a distinct acknowledgment of it as an existing obligation, which distinct acknowledgment showed a present, subsisting, moral obligation to pay the same." The court modified this prayer by adding to it the following: "unless they further find that Mrs. Catharine Staylor expressly promised the plaintiff that the plaintiff would be paid for her services at Mrs. Staylor's death." It is contended there was no evidence to support this modification. But we find that John Staylor, a witness, after giving testimony tending to establish the claim made by the appellee according to her statement of claim, testified that after the appellee entered upon service for Mrs. Staylor, and had remained there for a time, she, in the language of the witness, "got fussing about money, and said she wanted money, and her aunt told her she could not give it to her now, but said she would give it to her at her death. She said she had it in her will." He also testified that after this "fuss" about money the appellee left the home of Mrs. Staylor, and returned again to Mrs. Staylor's service upon the latter's request. This testimony afforded a basis for the hypothesis of the court's modification of this eleventh prayer. In the case of Gill v. Staylor, 93 Md. 453, 49 Atl. 650, in which the administrator of Mrs. Staylor was sued, as

he is in the case at bar, for the value of services rendered to his intestate in her lifetime, the trial court, upon a very similar condition of proof, attached to one of the prayers offered by the appellant a modification to the same effect as, and in almost identical terms with, the one we have under consideration; and the same was approved by this court. We see no reason why the part of the instruction in that case which was embodied in the court's modification is not equally appropriate here. We find no error in this action of the court.

The tenth prayer of the appellant, which was rejected by the trial court, was, in substance and effect, the same as his eleventh prayer as offered. By the court's action on the eleventh prayer, the appellant got the benefit of the proposition of law embodied in these two prayers, as far as he was, upon the evidence, entitled to the same. There was no error, therefore, in the court's action as to this tenth prayer.

Before adverting to other prayers embraced in the appellant's ninth exception, the exceptions to evidence will be disposed of, In the first exception, the question objected to was, did Mrs. Staylor herself do work about the house while appellee was with her? The fourth was to the question, were there other servants about the house? And the eighth was whether anything was done to educate the appellee-was she sent to school? There was no error in overruling these objections. The ground of the appellee's suit was that she was in the house and family of Mrs. Staylor by reason of being employed as a domestic; and inquiries whether there was any one else about the household to do, or who did, the sort of service indicated in such employment, and whether the appellee was sent to school, or remained uninterruptedly at the place of service, elicited evidence which, together with the evidence in the case as to the character and amount of service rendered by her while with Mrs. Staylor, tended to show what her position in the household of Mrs. Staylor really was. The second. third, and seventh exceptions were to questions intended to elicit evidence that Mrs. Staylor's relationship to the appellee was of the half blood. This evidence would seem to have no probative force as to any issue in the cause at the time it was offered, or as the case then stood; but it had been testified that the appellee was a niece of Mrs. Staylor, and it could at least do no harm to have it explained exactly what the relationship was. Especially was this so in view of the theory upon which the appellant's proof proceeded, which was that the appellee was not with Mrs. Staylor as a domestic, but as a relative and member of her family. In connection with such proof, it was not inappropriate to have the exact relationship of the parties in question explained, for what it might be worth, though it might reflect but