ed against the caveat; asked to be made parties caveatees, and that the administration of the estate might be continued in the hands of the executors without further interference. They had previously entered into an agreement not to contest the validity of the will and codicil, and on September 27, 1901, all of the children of Mrs. Shipley, and the husbands of the married daughters, signed a paper stating that they had examined the first account of the executors, acknowledged it to be correct, and asked the court to affirm and ratify it. Under those circumstances, we held in the former appeal that the Izers should not be permitted to file a caveat to the will, unless they satisfactorily established that what they thus alleged in Exhibit B was the result of having been imposed on by the executors or some one interested in sustaining the will, and that what they now rely on was ascertained subsequently by them. We further held that it was necessary for them to make such explanation in their petition, and that, with leave of the orphans' court, it could be amended. They did amend it, and we are now to determine whether or not they have made such allegations as give them a standing in court, notwithstanding the papers signed by them prior to filing their caveat. As we are of opinion that Exhibit B is the most important paper to be considered, we will examine the amended petition, to see whether it is sufficient in respect to that. In it they allege that when they signed Exhibit B they were ignorant of the true facts surrounding the execution of the will and codicil; signed it at the instance of Messrs. Farber and Reichard, who advised them that the allegations in the Davis caveat were untrue; that they then believed that said charges, so far as they reflected upon the character of either of the executors, were untrue, and in good faith and conscience signed that paper. They say "that, thus having taken their position with the caveatees in said Davis caveat, they were not in a position and did not have the means of ascertaining any of the facts which have since come to their knowledge." That admission itself causes us to pause to inquire upon what theory one sister can justify herself in going before a court and solemnly asserting that what another sister and brother had said is untrue and unfounded in fact, and then afterwards, in the same court, with reference to the same subject-matter, alleging that it was true, and attempting to explain her reason for such act by what we have quoted above. It was certainly more natural to go to the sister and brother, to ascertain what facts they relied on, than to accept the statements of those against whom such charges had been made; and, in the absence of some valid reason for not adopting that course, it must be assumed that she could have ascertained all the facts within the knowledge of Mrs. Davis if she had used ordinary diligence to do so. But she not only did not do that, if we accept her statement in the amended petition, but, by the course she pursued, deliberately placed herself in a position in which she could not ascertain the facts within the knowledge of those caveators. And she was not satisfied with that, but she not only alleged that what they said was false, but based that allegation on "their knowledge of the circumstances and surroundings of their deceased mother, and from intimate knowledge and acquaintance with the said Reichard and Farber." It is thus apparent that the petitioners have not justified any ignorance of facts that were in the possession of those caveators. But what are the substantial allegations by which the appellees seek to show newly discovered facts, after they signed Exhibit B? In the first place, they allege that, after the Davis caveat was dismissed, "V. Milton Reichard, one of the executors of said alleged will, stated that he knew that the will could be set aside on the ground of fraud, but that it was better that the caveat was dismissed, as long litigation would have resulted, and that he, as one of the executors, would protect the interest of Mrs. Shipley's children." Dr. Reichard positively denies in his answer that he ever made such a statement, and it is asking a good deal to expect a court to believe that he did; but, if it be conceded that that is a question of fact to be passed on, the petition does not even allege before whom he made the statement, and, for aught that appears, it may have been mere idle rumor; and, without some more specific allegations about it, it certainly is not sufficient to justify the petitioners in now asserting to be true what they have said was false, and thus subjecting this estate to the expenses of a trial. Then it is said that after Exhibit C was signed the orphans' court required Farber to produce vouchers for certain sums claimed by him; that when he filed them the "petitioners were aroused as to the importance of an investigation, and they immediately filed an exception to said account"; and "that the said Reichard then stated that he knew the account was not as it should be, and was glad that the petitioners had excepted to it." But although it must be admitted that some of the items inIcluded in what is called "Exhibit Vouchers" in the record are, to say the least, of a remarkable character, and such as should not be allowed, they amount to but a few dollars, and could not in any possible way reflect upon such issues as are sought to be raised by this petition, as they have no relevancy whatever to any of them. The items are for personal expenses of Mr. Farber, beginning nearly a year after the will was probated. and some of them of a character that ought not to be charged to the estate. Of course, the orphans' court should see that no expenses are allowed the executors, or either of them, which are not authorized by law, but there is nothing in these that could in the most remote way properly reflect upon the execution of the will. It might be added that Dr. Reichard denies having made the statement attributed to him about the account, but, if he did, it only showed that he was desirous of seeing the estate properly administered. The petition goes on to say "that your petitioners then learned, from letters written by Edwin J. Farber, prior to and about the time of the execution of the said alleged will, to Jacob A. Bricker, who had for some years been the confidential adviser of said decedent, and from other papers and persons, that the said Margaret Shipley had been induced to execute the said alleged will and codicil by the means hereinbefore alleged, to wit, by misrepresentation, circumvention, fraud, and undue influence," and alleges that Farber, having ascertained that Margaret Shipley had made á will, soon began to plan and contrive to have her execute another will, and, by divers methods and plans, succeeded on January 20, 1900, in having her make one in which he was named as attorney for the executors; that he subsequently represented that that will was not properly and legally executed, and sought the influence of Jacob A. Bricker to have another will made, which resulted in the one now in controversy being executed. After making various allegations as to what Farber represented, the petition states, "which representations will appear by reference to a copy of a letter from said Farber to said Bricker, filed herewith, marked 'Exhibit Letter,' as well as by other testimony which these petitioners will produce at the proper time." They allege "that they had no knowledge of the existence of the letters herein referred to during the pendency of the Davis caveat, nor could they have seen them if they had such knowledge, as said letters were in the possession of the attorneys for the caveators." What we have already said about their ignorance of facts within the knowledge of the caveators in the Davis caveat applies equally to this statement, but, as special reliance is based on this letter, we will see what there is in it. In passing, it may be remarked that, although the petition speaks of letters from Farber to Bricker, this is the only one filed. It is dated April 17, 1900, and states that the writer has just returned from Chicago, where most of the estate of Mrs. Shipley came from through her father, John McCaffery, who died there, leaving a large estate. The material suggestions made in it may be stated as follows: (a) That he was informed by the judge of the probate court in Chicago that a foreign executor will not be appointed by that court, but must be a resident, and he suggests that Mrs. Shipley's will be redrawn, naming Mr. Bricker, Samuel Adams, of Chicago, and himself, as joint executors: that, if Bricker and himself could 54 A.-6 not, Adams could, serve, and Adams had written him a letter that in that event he would give him (Bricker) his share of the fees, and they could do the same for Adams in Maryland. He adds that "I hope you will have my suggestions most kindly made to Mrs. Shipley, and let me know if she will accede to this suggestion, which I assure you is a good one"; (b) that Adams suggested that no one who is interested in the will, or named in it as executor, trustee, or legatee, should be a witness to it, as that is against the law of Illinois; that "Dr. Reichard had better not be appointed one of the trustees, because we will want him as one of the witnesses to the will, especially as he will be able to testify, as one of Mrs. Shipley's physicians, as to her sanity"; (c) that Adams tells him that it will be very beneficial to Mrs. Shipley's interest not to compel the executors to give bond, as the expense, which may amount to a thousand dollars, would be borne by the estate. The will executed on April 25, 1900, did name Messrs. Bricker, Farber, and Adams as executors; but on July 6th she revoked that clause, and appointed Mr. Farber and Dr. Reichard executors, and, in case administration was necessary in Illinois, she appointed Samuel Adams for that state. She did name Dr. Reichard trustee for her son Wynkoop, and expressly required her executors to give bond. So it is evident she was not altogether under the influence of Bricker or Farber, and, if she had been under the influence of Bricker, it apparently ceased, as by her codicil she not only left him out, but directed her executors to contest any bill he might bring against her estate. There are some expressions in the letter which could be used with effect to the detriment of the writer before a jury, but, when taken as a whole, it certainly would not sustain a verdict in favor of the appellees on any of the issues sought to be made by the petition. It is not alleged in the petition that the statements made in the letter as reasons for a change of the will were not true, but it alleges that Mr. Bricker "for a long number of years had been the trusted confidential business agent and personal friend of the said Margaret Shipley, and the executor named in both her former wills." The letter was written to him, and he was requested to make the suggestions of the changes to Mrs. Shipley. If the object of the letter was in any way to take advantage of or impose on Mrs. Shipley, it is rather remarkable that it was sent to her trusted and confidential friend, who was the executor named in the wills already made. It does undoubtedly manifest a desire on the part of Mr. Farber to become one of the executors, but, instead of urging it in person, he wrote to Mr. Bricker, who was personally interested in the matter himself. So far as the letter showed, Farber did not propose to take the will he was to draw to Mrs. Shipley, but instructed Bricker how it should be execut Appar ed; and it cannot be presumed that the codicil, which expressly confirmed the will in all other respects, was in any way influenced by that letter, as Bricker was by it omitted as an executor. But if we give to the letter all of the meaning claimed for it by the appellees, it was, as we have seen, in the possession of the attorneys for the caveators of the Davis caveat; and, if the Izers had sought such information as was incumbent on them before signing a paper such as Exhibit B, they could have ascertained the facts that were then relied on, and would doubtless have been permitted to see the letter, if they were in good faith seeking to ascertain the facts. But they apparently made no effort to find out what information their brother and sister relied on. ently, they did not even seek information from the attesting witnesses before filing their caveat, although in the original petition they attacked the execution of the will. They allege that Margaret Shipley was an uneducated person, unable to read intelligently, and scarcely able to write anything except her own name, and that she did not know or understand the contents of the will or codicil. If what they said in Exhibit B as to their knowledge of the circumstances and surroundings of their mother was true, they certainly knew her capacity to understand the will and codicil as well when they signed that paper as they do now. Although they presumably knew the contents of the will of January 20, 1900, as they say they will furnish a copy of it, they do not state them or file a copy, but content themselves with general allegations; and they admit that it and the one of April 25, 1900, are "substantially similar as to the devises and bequests to the children of Margaret Shipley," but "are substantially unlike as affecting the said Edwin J. Farber." So, without prolonging this opinion further, it will be seen from what we have intimated that, in our opinion, the appellees have not sufficiently explained their conduct with reference to Exhibit B to authorize the orphans' court to entertain this caveat. We do not deem it necessary to say more than we said in the former opinion about Exhibit A and Exhibit C. Parties who not only take a decided position on one side of a controversy in a court, but solemnly allege that statements made by the other side are false and unfounded in fact, and, in order to give more effect to their own statements, assert their opportunity to know whereof they speak, must not only show that they have since acquired further information, which had been withheld from them by the parties complained of, or through their instrumentality, but they must show that they had used at least reasonable diligence to acquaint themselves with the real facts before they voluntarily placed themselves in the attitude of branding as false and unfounded what they afterwards rely on for relief in reference to the same subject-matter; and, if they do not, they cannot complain if they are denied further relief. If parties to proceedings in court are to be permitted to thus shift their positions as some whim or caprice may lead them to do, the end of litigation would be as uncertain as such unstable litigants can make them; and, although it is to be regretted if the doctrine we have announced does at any time prohibit investigation in a meritorious case, it is one which is well established by the authorities, and of great importance to the proper administration of the law,-especially in matters affecting wills. The orphans' court should have dismissed the petition, and, for error in not doing so, the order of September 24, 1902, will be reversed. Order reversed and petition dismissed; the appellees to pay the costs. (96 Md. 430) BACK RIVER NECK TURNPIKE CO. OF BALTIMORE COUNTY v. HOM BERG et al. (Court of Appeals of Maryland. Jan. 22, 1903.) TURNPIKE COMPANIES-CONDITION OF ROADCHARTER PROVISIONS-MODE OF ENFORCEMENT-NOTICE APPEAL - SPECIAL STATU TORY JURISDICTION. 1. Code Pub. Gen. Laws, art. 23, § 233, provides for the incorporation of turnpike companies, whose roads shall comply with certain specifications. Laws 1894, c. 607, amending Code Pub. Gen. Laws, art. 23, § 242, provides that, where a turnpike company fails to keep its roads in the condition required by the law under which it was incorporated, or of the width required by its charter, on due proceedings an order of court may issue forbidding it to charge tolls on such road. Held, that proceedings under the act of 1894 against a corporation organized under section 233, and whose charter provisions required a road in accordance with the specifications of such section, did not constitute in any way a taking of private property, but only a mode of enforcing charter obligations. 2. Laws 1894, c. 607, amending Code Pub. Gen. Laws, art. 23, § 242, provides that, where a turnpike company fails to keep its roads in the condition required by the law under which it was incorporated, or of the width required by its charter, the judge of certain specified courts may, on an ex parte showing by petitioners, order an inspection by a jury and a return of an inquisition in writing by them, which, if it sustain the petitioners, the judge may confirm, and order a cessation of toll charges. It is further provided that the company may appear at the inquisition, and before the confirmation may require a trial by jury in court or move to quash for matters of law. Held, that the statute contemplates notice to the corporation. 3. A service upon the company of a copy of the order of the court directing the proceedings was sufficient notice. 4. Laws 1894, c. 607, amending Code Pub. Gen. Laws, art. 23, § 242, gives "the circuit court for the county, and the superior court of Baltimore city, in which the part" of a turnpike road not in good repair may lie, jurisdiction of special proceedings looking to an enforced cessation of toll charges thereon. Held, that such jurisdiction is a special jurisdiction conferred by statute. and, the act being constitutional, and no appeal allowed by the act, noue will lie from the judgment of such court to the court of appeals. Appeal from circuit court, Baltimore county; N. Charles Burke, Judge. Action by Daniel Homberg and others against the Back River Neck Turnpike Company of Baltimore County. From a judgment in favor of petitioners, defendant appeals. Appeal dismissed. and Argued before McSHERRY, C. J., BRISCOE, BOYD, PAGE, PEARCE, JONES, and SCHMUCKER, JJ. Charles F. Stein, for appellant. John I. Yellott, for appellees. BRISCOE, J. The appellant is a body corporate, duly incorporated under the Public General Laws of the state under the corporate name of the Back River Neck Turnpike Company of Baltimore County for the purpose of making and constructing a turnpike road in the Twelfth election district of Baltimore county, not to exceed in length 12 miles. On the 10th day of April, 1902, the appellees, residents of Baltimore county, filed a petition in the circuit court for Baltimore county, under section 242 of article 23 of the Code of Public General Laws, as amended by chapter 607 of the Acts of 1894, alleging, among other things, that the turnpike company had failed to keep and maintain its road stoned or otherwise made of hard material to a depth of 12 inches, or to a width of 15 feet, as required by its charter, but had negligently permitted the road to become full of holes and to become practically unfit for use and travel by the public, contrary to law. It was further alleged by the petition that travel on said turnpike, by reason of its condition, was rendered uncomfortable and dangerous, and that such conditions had been permitted to remain for a period of time exceeding 15 days before filing of the complaint, and the prayer of the petition was for relief under the laws of the state. The record shows that an inquisition was had, and on the 28th day of April, 1902, was returned to the circuit court of Baltimore county, as provided by the statute; and from an order of the court overruling a motion to quash, and confirming the inquisition of the jury, and directing that tolls shall not be charged until the turnpike road shall be put in good order and repair, and properly widened, this appeal has been taken. The sole question in the case relates to the validity and constitutionality of the act of 1894 (chapter 607) amending section 242 of article 23 of the Code. The appellant contends that this act is unconstitutional and void, because it does not provide for any notice of the proceeding to the turnpike company, and it provides for taking private property without due process of law in contravention of the state and federal constitutions. This act was recently before the court in the Turnpike Company v. Startzman, 86 Md. 365, 38 Atl. 777, a case involving proceedings under the act; and, while the points here made were not directly presented in that case, we said the proceedings adopted and pursued in that case could not be objected to on constitutional grounds. Now, it is quite difficult to see how and in what manner the proceedings authorized by the act of 1894 (chapter 607) can involve the question of taking private property without due process of law, as urged by the appellant in this case. The appellant company was incorporated under article 23 of the Code (section 233), which provides for the formation of corporations for making turnpike roads, and according to the express terms of its charter it was required to have at least 15 feet in width of the bed of its turnpike road covered with broken stone or gravel or other hard or durable materials to the depth of at least 12 inches, unless the natural bed be hard. The act of 1894 provides that it shall be the duty of the company which has been incorporated to keep and maintain its road in good order and repair, and of the proper width, as required by its charter; and its failure so to do disentitles it to charge tolls for the use of its road by the public. The act does not provide for the taking of private property in any way, but simply adopts a method or mode for compelling the corporation to comply with its charter obligations and the law under which it derives its powers. Appropriate regulation of the use of property is not taking property within the meaning of the constitutional prohibition. Railroad Co. v. Richmond, 96 U. S. 527, 24 L. Ed. 734; Baltimore Belt R. Co. v. Baltzell, 75 Md. 98, 23 Atl. 74. The Upon the question of notice we need only say that it appears from the record that notice in this case was given the company by service of a copy of the order of court upon the president of the company. The company appeared at the hearing before the sheriff and the jury of inquisition, and subsequently the hearing before the circuit court. statute does not provide in terms for notice to the company, but it contemplates a notice by providing for a hearing before the inquisition and by the court, and this, we think, is amply sufficient under the statute. The notice in such cases is usually provided in the order of court directing the proceedings. The statute in this case having been declared valid and constitutional, the appeal will have to be dismissed. The act allows no appeal to this court, and, the court below being in the exercise of a special jurisdiction conferred by statute, its judgment was final and conclusive. Jackson v. Bennett, 80 Md. 77, 30 Atl. 612; Smith v. Goldsborough, 80 Md. 63, 30 Atl. 574. Appeal dismissed, with costs. (97 Md. 732) CLARKE v. O'BRIEN. CHAPPELL v. SAME. (Court of Appeals of Maryland. Jan. 22, 1903.) AUDITOR'S ACCOUNT-NOTICE OF FILINGSUFFICIENCY. 1. An auditor's statement of the account of a trustee was filed on the 4th of February, and on the same day au order nisi was passed thereon, giving 10 days within which to show cause against its ratification, and on the 13th an exception was filed to the effect that there was not sufficient notice of the filing of the auditor's account. Held, that the exception was untenable, the exceptant having been in court in time to be heard, according to the exigencies of the order. Appeals from circuit court No. 2 of Baltimore city; Pere L. Wickes, Judge. Suit by H. Lee Clarke and others against Thomas C. Chappell individually and as trustee, in which William J. O'Brien, Jr., by decree of court was substituted in place of said Chappell as trustee. From an order ratifying an auditor's account, Fannie Chappell Clarke and Thomas C. Chappell, as trustee, prosecute separate appeals. The former affirmed, and the latter dismissed. Argued before McSHERRY, C. J., and FOWLER, BRISCOE, BOYD, PAGE, PEARCE, SCHMUCKER, and JONES, JJ. Wm. A. Little, for appellant Fannie Chappell Clarke. William J. O'Brien, Jr., Gans & Haman, and Vernon Cook, for appellee. JONES, J. There are two appeals in this record, standing on the docket of the October term, 1902, of this court as Nos. 89 and 90. The appeals are from an order of the court below finally ratifying an auditor's account in a cause pending in the circuit court No. 2 of Baltimore city. This is the third time that proceedings in that cause have been brought to this court for review. The first of the cases brought here is reported under the title of "Chappell v. Clark," in 92 Md., at page 98, 48 Atl. 36. It there appears how the cause originated, and what proceedings had been had therein up to the time of the appeal to this court. Upon that appeal this court reversed the order of the court below, which was brought up for review for certain irregularities appearing in the proceedings, which are pointed out in the opinion filed. It was indicated how these irregularities could be cured, and the court said the orders were reversed on purely technical grounds, and that the court was not passing upon, and its action did not affect, "the merits of the controversy." The cause was remanded for further proceedings, and, these being had in the court below, seven appeals from orders passed in the course of these proceedings were taken by the parties who have brought the present appeals,-four of them by the appellant in No. 90, Thomas C. Chappell, trustee, and the remaining three by the appellant in No. 89, Fannie Chappell Clarke. These appeals were brought up in one record, and were disposed of by this court in the case reported in 94 Md. 178, 50 Atl. 527, in which it will appear that one was dismissed and in all the others the orders of the court below were affirmed. The principal question raised and urged in this court in the last-mentioned appeals was as to the jurisdiction of the court below, and its power to pass the original decree under authority of which the proceedings had been had; and also as to its power to pass orders which were the subject of appeal, apart from its jurisdiction to pass the foundation decree. The decision of this court affirmed the jurisdiction of the court below in every instance. Upon the remand of the cause to the court below, further proceedings were had therein, and from orders passed in the course of these further proceedings the present appeals were taken. From an examination of the record we find that in No. 90 precisely the same questions are presented in the present record as were presented and passed upon by this court in the former appeals, decided as reported in 94 Md., 50 Atl., supra, and that in No. 89 the questions are practically the same as those thus passed upon. The proceedings, as they have appeared in this court upon the several appeals, show that the appellant in No. 90 was removed as trustee by the court below from the execution of a trust devolved upon him by will, and that the appellee has been substituted as trustee in his stead. In the execution of the trust the appellee filed a report of his proceedings, and asked to have an account stated by the auditor in relation thereto. Upon the filing of the account of the auditor the appellants here respectively filed exceptions thereto, but the court finally ratified the account. In the first exception of the appellant in No. 89 to the account there is alleged want of sufficient notice of the filing thereof. The account was filed on the 4th of February, 1902. On the same day an order nisi was passed thereon giving 10 days within which to show cause against its ratification. On the 12th of February the exceptions of both the appellants here were filed. They were thus in court in time to be heard by the court according to the exigency of its order, and had full opportunity to be so heard. This exception needs no further comment. All of the other exceptions of both appellants are designed to present questions already fully determined and settled by the former cases in this court already referred to, and none of them introduce new matter, except the seventh and ninth exceptions of Fannie Chappell Clarke, appellant in No. 89. Of these last-mentioned exceptions the seventh, beyond repeating an exception to the jurisdiction of the court, al leges matters totally irrelevant to any question involved in the ratification of the auditor's account. And the ninth alleges matters totally unsupported by anything appearing in the record as to the facts upon which |