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ed against the ca veat; asked to be made par had used ordinary diligence to do so. But ties caveatees, and that the administration she not only did not do that, if we accept of the estate might be continued in the her statement in the amended petition, but, hands of the executors without further inter by the

she pursued, deliberately ference. They had previously entered into placed herself in a position in which she an agreement not to contest the validity of could not ascertain the facts within the the will and codicil, and on September 27, knowledge of those caveators. And she was 1901, all of the children of Mrs. Shipley, not satisfied with that, but she not only al. and the busbands of the married daughters, leged that what they said was false, but signed a paper stating that they had exam based that allegation on “their knowledge of ined the first account of the executors, ac the circumstances and surroundings of their knowledged it to be correct, and asked the deceased mother, and from intimate knowl. court to affirm and ratify it. Under those edge and acquaintance with the said Reichcircumstances, we held in the former appeal ard and Farber.” It is thus apparent that that the Izers should not be permitted to the petitioners have not justified any ignofile a caveat to the will, unless they satis rance of facts that were in the possession of factorily established that what they thus those caveators. alleged in Exhibit B was the result of hav But what are the substantial allegations ing been imposed on by the executors or by which the appellees seek to show newly some one interested in sustaining the will, discovered facts, after they signed Exhibit and that what they now rely on was ascer B? In the first place, they allege that, after tained subsequently by them. We further the Davis caveat was dismissed, “V. Mil. held that it was necessary for them to make ton Reichard, one of the executors of said alsuch explanation in their petition, and that, leged will, stated that he knew that the will with leave of the orphans' court, it could could be set aside on the ground of fraud, be amended. They did amend it, and we are but that it was better that the caveat was now to determine whether or not they have dismissed, as long litigation would have remade such allegations as give them a stand- sulted, and that he, as one of the executors, ing in court, notwithstanding the papers would protect the interest of Mrs. Shipley's signed by them prior to filing their caveat. children." Dr. Reichard positively denies

As we are of opinion that Exhibit B is in his answer that he ever made such a statethe most important paper to be considered, ment, and it is asking a good deal to expect we will examine tbe amended petition, to see a court to believe that he did; but, if it whether it is sufficient in respect to that. be conceded that that is a question of fact to In it they allege that when they signed Ex be passed on, the petition does not even allege hibit B they were ignorant of the true facts before whom he made the statement, and, surrounding the execution of the will and for aught that appears, it may have been codicil; signed it at the instance of Messrs. mere idle rumor; and, without some more Farber and Reichard, who advised them that specific allegations about it, it certainly is the allegations in the Davis caveat were un not sufficient to justify the petitioners in now true; that they then believed that said asserting to be true what they have said was charges, so far as they reflected upon the false, and thus subjecting this estate to the character of either of the executors, were expenses of a trial. Then it is said that aft. untrue, and in good faith and conscience er Exhibit C was signed the orphans' court signed that paper. They say "that, thus required Farber to produce vouchers for cerhaving taken their position with the cavea tain sums claimed by him; that when he tees in said Davis caveat, they were not in a filed them the “petitioners were aroused as position and did not have the means of as to the importance of an investigation, and certaining any of the facts which have since they immediately filed an exception to said come to their knowledge.” That admission account"; and “that the said Reichard then itself causes us to pause to inquire upon stated that he knew the account was not as wbat theory one sister can justify herself it should be, and was glad that the petitionin going before a court and solemnly assert ers had excepted to it.But although it ing that what another sister and brother must be admitted that some of the items inhad said is untrue and unfounded in fact, cluded in what is called “Exhibit Vouchers" and then afterwards, in the same court, with in the record are, to say the least, of a rereference to the same subject-matter, al markable character, and such as should not leging that it was true, and attempting to be allowed, they amount to but a few dolexplain her reason for such act by what we lars, and could not in any possible way rehave quoted above. It was certainly more flect upon such issues as are sought to be natural to go to the sister and brother, to raised by this petition, as they have no releascertain what facts they relied on, than vancy whatever to any of them. The items to accept the statements of those against are for personal expenses of Mr. Farber, bewhom such charges had been made; and, in ginning nearly a year after the will was prothe absence of some valid reason for not bated. und some of them of a character that adopting that course, it must be assumed ought not to be charged to the estate. Of that she could have ascertained all the facts course, the orphans' court should see that no within the knowledge of Mrs. Davis if she 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 yarious 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 hy 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 conld they have seen them if they had such knowledge, as said letters were in the possession of the attorneys for the caveators." What we bave 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

64 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 ber 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

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.

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. Apparently, 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 orportunity 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


BERG et al. (Court of Appeals of Maryland. Jan. 22, 1903.) TURNPIKE COMPANIES-CONDITION OF ROAD


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 un. der 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 euforcing 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 returu of 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 coustitutional, 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 coun the Turnpike Company v. Startzman, 86 Md. ty; N. Charles Burke, Judge.

365, 38 Atl. 777, a case involving proceedings Action by Daniel Homberg and others under the act; and, while the points here against the Back River Neck Turnpike Com made were not directly presented in that pany of Baltimore County. From a judg. case, we said the proceedings adopted and ment in favor of petitioners, defendant ap- pursued in that case could not be objected to peals. Appeal dismissed.

on constitutional grounds. Now, it is quite Argued before McSHERRY, C. J., and difficult to see how and in what manner the BRISCOE, BOYD, PAGE, PEARCE, JONES, proceedings authorized by the act of 1894 and SCHMUCKER, JJ.

(chapter 607) can involve the question of takCharles F. Stein, for appellant. John 1. ing private property without due process of Yellott, for appellees.

law, as urged by the appellant in this case.

The appellant company was incorporated unBRISCOE, J. The appellant is a body cor der article 23 of the Code (section 233), which porate, duly incorporated under the Public provides for the formation of corporations General Laws of the state under the corpor for making turnpike roads, and according to ate name of the Back River Neck Turnpike the express terms of its charter it was reCompany of Baltimore County for the pur- quired to have at least 15 feet in width of pose of making and constructing a turnpike the bed of its turnpike road covered with road in the Twelfth election district of Balti broken stone or gravel or other hard or duramore county, not to exceed in length 12 miles. ble materials to the depth of at least 12 On the 10th day of April, 1902, the appellees, inches, unless the natural bed be hard. The residents of Baltimore county, filed a petition act of 1894 provides that it shall be the duty in the circuit court for Baltimore county, un of the company which has been incorporated der section 242 of article 23 of the Code of to keep and maintain its road in good order Public General Laws, as amended by chap- and repair, and of the proper width, as reter 607 of the Acts of 1894, alleging, among quired by its charter; and its failure so to other things, that the turnpike company had do disentitles it to charge tolls for the use of failed to keep and maintain its road stoned its road by the public. The act does not proor otherwise made of hard material to a vide for the taking of private property in any depth of 12 inches, or to a width of 15 feet,

way, but simply adopts a method or mode as required by its charter, but had negligent- for compelling the corporation to comply with ly permitted the road to become full of holes its charter obligations and the law under and to become practically unfit for use and which it derives its powers. Appropriate travel by the public, contrary to law. It was regulation of the use of property is not takfurther alleged by the petition that travel on ing property within the meaning of the con. said turnpike, by reason of its condition, was stitutional prohibition. Railroad Co. v. Richrendered uncomfortable and dangerous, and mond, 96 U. S. 527, 24 L. Ed. 734; Baltimore that such conditions had been permitted to Belt R. Co. v. Baltzell, 75 Md. 98, 23 Atl. 74. remain for a period of time exceeding 15 Upon the question of notice we need only days before filing of the complaint, and the say that it appears from the record that noprayer of the petition was for relief under tice in this case was given the company by the laws of the state. The record shows service of a copy of the order of court upon that an inquisition was had, and on the 28th the president of the company. The company day of April, 1902, was returned to the cir- | appeared at the hearing before the sheriff cuit court of Baltimore county, as provided and the jury of inquisition, and subsequently by the statute; and from an order of the the hearing before the circuit court. The court overruling a motion to quash, and con statute does not provide in terms for notice firming the inquisition of the jury, and di to the company, but it contemplates a notice recting that tolls shall not be charged until by providing for a bearing before the inquithe turnpike road shall be put in good order sition and by the court, and this, we think, and repair, and properly widened, this appeal is amply sufficient under the statute. The has been taken.

notice in such cases is usually provided in The sole question in the case relates to the order of court directing the proceedings. the validity and constitutionality of the act

The statute in this case having been declared of 1894 (chapter 607) amending section 242 valid and constitutional, the appeal will have of article 23 of the Code. The appellant con to be dismissed. The act allows no appeal tends that this act is unconstitutional and to this court, and, the court below being in void, because it does not provide for any no the exercise of a special jurisdiction confertice of the proceeding to the turnpike com red by statute, its judgment was final and pany, and it provides for taking private prop conclusive. Jackson V. Bennett, 80 Md. 77, erty without due process of law in contraven- 30 Atl. 612; Smith v. Goldsborough, 80 ma. tion of the state and federal constitutions. 63, 30 Atl. 574. This aci was recently before the court in Appeal dismissed, with costs.

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(97 Md. 732)

one record, and were disposed of by this court CLARKD V. O'BRIEN.

in the case reported in 94 Md. 178, 50 Atl. CHAPPELL V. SAME.

527, in which it will appear that one was

dismissed and in all the others the orders of (Court of Appeals of Maryland. Jan. 22, 1903.)

the court below were affirmed. The princiAUDITOR'S ACCOUNT-NOTICE OF FILING pal question raised and urged in this court SUFFICIENCY.

in the last-mentioned appeals was as to the 1. An auditor's statement of the account of a trustee was filed on the 4th of February, and

jurisdiction of the court below, and its power on the same day au order nisi was passed there to pass the original decree under authority on, giving 10 days within which to show cause of which the proceedings had been had; and against its ratification, and ou the 13th an exception was filed to the effect that there was

also as to its power to pass orders which not sufficient notice of the filing of the auditor's

were the subject of appeal, apart from its account. Held, that the exception was jurisdiction to pass the foundation decree. tenable, the exceptant having been in court iu

The decision of this court affirmed the juristime to be heard, according to the exigencies of the order.

diction of the court below in every instance.

Upon the remand of the cause to the court Appeals from circuit court No. 2 of Balti.

below, further proceedings were had therein, more city; Pere L. Wickes, Judge.

and from orders passed in the course of these Suit by H. Lee Clarke and others against

further proceedings the present appeals were Thomas C. Chappell individually and as trus

taken. tee, in which William J. O'Brien, Jr., by de

From an examination of the record we cree of court was substituted in place of said

find that in No. 90 precisely the same quesChappell as trustee. From an order ratifying

tions are presented in the present record as an auditor's account, Fannie Chappell Clarke and Thomas C. Chappell, as trustee, prose

were presented and passed upon by this court

in the former appeals, decided as reported in cute separate appeals. The former affirmed,

94 Md., 50 Atl., supra, and that in No. 89 and the latter dismissed.

the questions are practically the same as Argued before MCSHERRY, C. J., and

those thus passed upon. The proceedings, FOWLER, BRISCOE, BOYD, PAGE,

as they have appeared in this court upon the PEARCE, SCHMUCKER, and JONES, JJ.

several appeals, show that the appellant in Wm. A. Little, for appellant Fannie Chap No. 90 was removed as trustee by the court pell Clarke. William J. O'Brien, Jr., Gans below from the execution of a trust devolved & Haman, and Vernon Cook, for appellee. upon him by will, and that the appellee has

been substituted as trustee in his stead. In JONES, J. There are two appeals in this the execution of the trust the appellee filed record, standing on the docket of the Octo a report of his proceedings, and asked to ber term, 1902, of this court as Nos. 89 and have an account stated by the auditor in re90. The appeals are from an order of the lation thereto. Upon the filing of the accourt below finally ratifying an auditor's ac count of the auditor the appellants here recount in a cause pending in the circuit court

spectively filed exceptions thereto, but the No. 2 of Baltimore city. This is the third court finally ratified the account. In the time that proceedings in that cause have first exception of the appellant in No. 89 to been brought to this court for review. The the account there is alleged want of sufficient first of the cases brought here is reported notice of the filing thereof. The account was under the title of "Chappell v. Clark," in 92 filed on the 4th of February, 1902. On the Md., at page 98, 48 Atl. 36. It there appears same day an order nisi was passed thereon how the cause originated, and what proceed giving 10 days within which to show cause ings had been bad therein up to the time of against its ratification. On the 12th of Febthe appeal to this court. Upon that appeal ruary the exceptions of both the appellants this court reversed the order of the court here were filed. They were thus in court in below, which was brought up for review for time to be heard by the court according to certain irregularities appearing in the pro the exigency of its order, and had full opporceedings, which are pointed out in the opinion tunity to be so heard. This exception needs filed. It was indicated how these irregulari no further comment. All of the other exties could be cured, and the court said the ceptions of both appellants are designed to orders were reversed on purely technical present questions already fully determined grounds, and that the court was not passing and settled by the former cases in this court upon, and its action did not affect, "the mer already referred to, and none of them introits of the controversy." The cause was re duce new matter, except the seventh and manded for further proceedings, and, these ninth exceptions of Fannie Chappell Clarke, being had in the court below, seven appeals appellant in No. 89. Of these last-mentioned from orders passed in the course of these exceptions the seventh, beyond repeating an proceedings were taken by the parties who exception to the jurisdiction of the court, al have brought the present appeals,-four of leges matters totally irrelevant to any questhem by the appellant in No. 90, Thomas C. tion involved in the ratification of the auChappell, trustee, and the remaining three ditor's account. And the ninth alleges matby the appellant in No. 89, Fannie Chappell ters totally unsupported by anything appearClarke. These appeals were brought up in ) ing in the record as to the facts upon which

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