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same, recovery cannot be had. If he received tion was filed asking this court to remand the plaintiff's money, or was the knowing in the cause for amendment of the pleadings strument of some one else doing so, he ought and for further proceedings. That motion not to escape liability to pay on that ground. will now be considered.
Whether he received the money In the petition accompanying the motion, personally, or not, is immaterial, if by his it is stated that the facts which should have procurement some one else did get the money been presented, but were not, are wholly and upon the faith of what he did. It was all radically different from those set forth in one transaction.” So in the case before us the bill and answer, and relied on in the the First National Bank of Westminster is decision heretofore made; and it is assertsupposed to have parted with its money upon ed that if the appellant be given an opporthe faith not only of the principal note of tunity to submit the actual facts, in place $5,000, but also of the other notes put up as of those erroneously assumed in the pleadcollateral. "The two, as elements of the ings to be true, the result would be preconsideration, are inseparable. The courts cisely the reverse of the
heretofore will not inquire whether the holder parted announced. We are therefore asked to rewith value because of the original or collat mand the case to the court below, notwitheral paper. They consider such value given standing we have affirmed the decree apfor both." Bank of State of N. Y. V. Van pealed against, so that the pleadings may be derhorst, 32 N. Y. 553; Norton on Bills and amended in such a way as to present an Notes (3d Ed.) 314, 315. Being thus an ex entirely different and exactly opposite state ecuted contract, even if the transaction were of facts. In a word, the request is that, ina sale, and not a discount, recovery could stead of affirming the decree, the accuracy be had under the Katz Case, supra, which of which, on the facts disclosed as they now was held not to be in conflict with Lazear's stand by the admission of the parties, is not Case.
at all disputed, we remand the record with Finding no reversible error in any of the instructions to allow the parties to so amend rulings of the lower court, the judgment will the pleadings as to make a totally different be affirmed. Judgment affirmed, with costs case from the one they originally presented. above and below.
The ground upon which this request is placed is that the case was a "noncontentious
one,”-that is a case which did not involve (95 Md. 16)
a hostile contest as respects the facts, beSMITH V. HOOPER et al.
cause the facts were conceded. It is insist(Court of Appeals of Maryland. June 19,
ed that inasmuch as facts were conceded 1902.)
which ought not to have been conceded, beAPPEAL-AGREED STATEMENT OF FACTS-AF.
cause, in reality, they did not exist, the apFIRMANCE REMAND.
pellant should not be bound by the conces1. Code, art. 5, $ 36, declares that if it shall sion after the decision has been adverse to appear to the court of appeals that the substantial merits of a cause will not be determined
her, but that she should be allowed to withby the reversing or affirming of any decree or
draw that concession now, and should be order, or that the purpose of justice will be ad permitted to assert and rely on precisely opvanced by permitting further proceedings, the posite facts. Have we the power to do this? court may remand the case for further proceedings. Held that, after the court of ap
Section 36, art. 5, of the Code, declares: peals has entered a final order of affirmance, “If it shall appear or be shown to the court it is without power to remand a case upon an of appeals that the substantial merits of a ex parte application, alleging that because of
cause will not be determined by the reversfacts not appearing in the record, and contradictory to an agreed statement of facts upon which
ing or affirming of any decree or order that the case was decided, substantial justice has not may have been passed by a court of equity, been done.
or that the purposes of justice will be adOn motion that the cause be remanded for vanced by permitting further proceedings in an amendment of the pleadings and further
the cause, either through amendment of any proceedings. Motion overruled.
of the pleadings or the introduction of furFor former opinion, see 51 Atl. 844.
ther evidence, making additional parties, or
otherwise, then the court of appeals, instead McSHERRY, C. J. This cause was ar of passing a final decree or order, shall order gued and decided during the last January the cause to be remanded to the court from term. The questions involved in the con whose decision the appeal was taken, and troversy were presented by a bill in equity, thereupon such further proceeding shall there and by an answer thereto. The facts were be had by amendment of the pleadings, or not disputed. On the contrary, they were further testimony to be taken, or otherwise, distinctly agreed to. Accepting as true the as shall be necessary for determining the averments of the bill which were admitted cause upon its merits, as if no appeal had by the answer,-and all the material ones been taken in the cause," etc. It must be were admitted, -we proceeded to decide, and borne in mind that this court has no original did decide, the legal questions raised, dis jurisdiction. Its functions are purely appelcussed, and submitted. After the judgment late. If the statutes do not give jurisdiction of this court had been handed down, a mo to hear a case except upon the record as
transmitted, then it is obvious that this court ord back, so that the pleadings may be has no power to inspect documents or to amended, simply upon the allegation that consider evidence with a view to determin the conceded facts are wrong, when it has ing whether facts stated in the record to be no power to ascertain by the aid of evidence facts are facts, or simply fiction. To de whether the allegation of error is correct. cide whether conceded facts are facts is to To hold the contrary would be tantamount determine, not what is the law applicable to to deciding that, though we were without the conceded facts, as was done by the court jurisdiction to investigate the truth of conbelow and by this court, but to investigate a ceded facts, we yet have jurisdiction to act distinctly new question, not raised by the upon a simple allegation that the conceded record, and not suggested in the court be facts were not true. Where would such a low. We declined to do this very thing in doctrine lead? It will not do to say that Stanley v. Safe Deposit Co., 87 Md. 458, 459, the doctrine is confined to cases where the 40 Atl. 53; Rogers, Brown & Co. v. Citi facts are admitted by the pleadings, because zens' Bank, 93 Md. 618, 49 Atl. 843. We have there is no difference between such an adbeen furnished no reference to any adjudged mission and one made in an agreed statecase which holds that this court, after de ment of facts, or in a case stated. If the ciding a case on a record sufficiently full and doctrine is a sound one at all, it is applicaexplicit to justify the rendition of a final ble to every case in which a decision has decree, can go into an investigation, outside been rendered upon a state of facts honestly of the record, to ascertain whether the facts believed to exist, but subsequently doubted, contained in the record, and upon which the disputed, or discovered not to exist. Litigadecision was based, were in reality true. In tion would be greatly protracted by the adopthe very nature of things, such a power could tion of such a doctrine. Each decision of not exist, because it would involve an inde the same case might develop some new feapendent investigation, and would require this ture that would furnish the ground for an court to decide, as a court of first instan. ., additional amendment, and the contest would and upon evidence adduced before it, an is be drawn out by successive applications for sue of fact not embraced in the record of remanding with a view to other amendments. the case.
The exercise of such a power Returning to the language of the statute, might, and most probably would, in some pro it is apparent that the Code contemplates ceedings necessitate the summoning and ex an entirely different situation from the one amination of witnesses to determine whether now being dealt with. Whenever it shall the conceded facts were facts; and this appear or be shown to the court of appeals: court has no jurisdiction to do any such First, that the substantial merits of a cause thing. Lenderking v. Rosenthal, 63 Md. 38. will not be determined by affirming or reAfter the case just cited had been finally versing a decree; or, secondly, that the purdecided, a motion was filed asking for a poses of justice will be advanced by permodification of the decree of reversal, and mitting further proceedings,-then and in certain allegations of fact were made in sup either of these events the court of appeals, port of the motion. Those facts, if they "instead of passing a final decree or order," existed, were not disclosed by the record. shall remand the cause, etc. Such The appellant answered the application, and manding, if made, must be made before final denied the averments of fact. In overruling decree, and because a final decree cannot be the motion, and in declining to remand the passed on the record as it stands without docause, under section 28, now section 36, art. ing injustice. In addition to this, such a 5, of the Code, this court said: “It is man remanding is allowed only when it appears ifest, therefore, upon the allegations thus or is shown to the court by the record in the made by the respective parties, that ques case either that the substantial merits of the tions for the exercise of original jurisdic case will not be determined by an affirmance tion are presented, which this court, as an or a reversal, or that the purposes of justice appellate tribunal, cannot hear and decide. will be advanced by permitting further proSuch questions must be presented to and be ceedings. In Genl. Ins. Co. v. U. S. Ins. Co., passed upon by the court below, having | 10 Md. 528, 69 Am. Dec. 174, it was said: cognizance of the proceedings. In the man “But the record must indicate that the ends ner in which they are presented here, we can of justice will be promoted by such further express no opinion in regard to them, not proceedings, in order to authorize this court being embraced in the appeal which we have to remand a cause." Neither of the abovedecided." If this court is without authori named alternatives will warrant the strikty to make such an investigation so as to ing out of a final decree in order to let in a enable it to determine whether a case, after remanding, so that an entirely new and difhaving been decided, shall be remanded, with ferent case may be made by amendment. a view to being amended in a way to present And so this court has flatly held. Benscotprecisely opposite facts, it is equally with ter v. Green, 60 Md. 333. Indeed, a plaintiff out authority to remand the record for a sim is not at liberty to abandon the entire case ilar amendment merely upon the ex parte made by his bill, and to make a new and application of the unsuccessful litigant. This different case by way of amendment. Ban. court cannot pass an order sending the rec non v. Comegys, 69 Md. 422, 16 Atl. 129.
The thirty-sixth section of article 5 of the Application of Elizabeth Mason for the proCode was taken from the Acts of 1832, C. bate of the will of Bridget Trainor. From 302, § 6, and has been adverted to-some an order allowing the probate, Bridget Zetimes applied, and sometimes not-in 64 lososkei, a caveator, appeals. Affirmed. cases, beginning with Kent's Adm’rs v. Tan
William J. Kearns, for appellant. Guild, eyhill, 6 Gill & J. 1, and ending with Rog
Lum & Tamblyn, for respondent. ers, Brown & Co. v. Citizens' Bank, 93 Md. 618, 619, 49 Atl. 843; and in not one of those
MAGIE, Ordinary. This is an appeal from 64 cases, covering a period of 70 years dur a decree of the orphans' court of Essex couning which the act of 1832 has been in force, ty admitting to probate a written instrument was an application made like the one now be as the last will and testament of Bridget ing considered. The nearest approach to the Trainor, deceased. The appellant is a daughpending motion will be found in Paine v.
ter of Bridget Trainor, and the will discrimFrance, 26 Md. 46, and that application was
inates against her, and gives her only a nomrefused.
inal share of the estate of testatrix. At the We do not perceive how the circumstances time of the execution of the will there were now relied on, even if proved, would change three children Bridget Trainor living, all the conclusion heretofore reached, unless the of whom were daughters. The caveator was authority of the case of In re Armitage, one; another was Mrs. Keyes, living in Buf(1893] 3 Ch. 337, be repudiated. But we falo; another was the respondent Elizabeth refrain from discussing a situation which is Mason, a widow, who had lived with her not before us, though we may add that a res mother from a time about three months beolution adopted by the directors of the R. fore the execution of the will, and who conTynes Smith Company subsequently to the tinued to live with her until her death, which decision of this cause, and considerably more occurred nearly three years afterward. The than a year after the company went out of bulk of testatrix's estate was by the will existence, can have no influence on any of given to Mrs. Mason and Mrs. Keyes. The the questions considered and decided here bequest to the caveator was $1. The evitofore, or on any of those raised by the mo
dence before the orphans' court, appearing in tion now under review.
the transcript, clearly shows that the instruIt is unfortunate if the appellant miscon ment in question was executed with all the ceived the facts in the first instance, but the formalities necessary to make it a valid tesappellees deny that there was any such mis tamentary disposition of property. The eviconception. They assert that the facts al dence also discloses that at the time of the leged in the bill and admitted by the answer execution of the will the testatrix, although are true. Thus a distinct issue is presented | aged and somewhat infirm, possessed testaby the motion and the answer thereto, and mentary capacity; and there was no quesIt is an issue which this court has no juris tion in the court below, and there has been diction to decide.
no question here, but that she was capable of For the reasons assigned, the motion must making a will, or that she had executeri propbe overruled. Motion overruled.
erly the will in question. The contention below, and here, has been that the will was
not the act of decedent, but was induced by (64 N. J. E. 327)
the undue influence of Elizabeth Mason, the ZELOSOSKEI V. MASON.
daughter who lived with her mother, the de(Prerogative Court of New Jersey. Jan. 27,
cedent. The fact that Elizabeth Mason was, 1903.)
and had been for some little time, an inmate
of her mother's house, living with her in the WILLS-UNDUE INFLUENCE.
close intimacy that such conditions produce, 1. A testatrix, having three daughters, left
no doubt discloses that she had the opporthe bulk of her estate to two of them, bequeathing to the other only $1. The daughter thus
tunity to exert some influence upon her discriminated against filed a caveat against pro mother. But the burden of establishing by bate, and contended that the will was the prod-proof the existence of that influence which is uct of the undue influence of one of her sisters. who resided with the mother. It appeared that
called “undue" is primarily upon the person testatrix had imbibed a strong prejudice against who asserts its existence. Proof that opthe caveator, by reason of an inference drawn portunity existed to exert influence will not by her in respect to caveator's conduct, which
suffice. Nor will such proof, standing alone, inference was probably unjustified, but was not unnatural under the circumstances known to
raise such a presumption as to shift the burtestatrix. Held, that a case of undue influence den, and require explanation or denial from by false statements or suggestions on the part
the accused person. When proof of the opof the daughter who lived with testatrix was not made out by mere proof that she acquiesced
portunity to exert influence is supplemented in her mother's view, without proof that she
by proof of the existence of relations of a knew, or at least had reason to believe, that confidential character, justifying the inferher mother's prejudice was unwarranted by the facts.
ence that the testator relied upon the advice
and assistance of the other person in busi(Syllabus by the Court.)
ness matters, or by proof that such person Appeal from orphans' court, Essex coun exerted an actual control of the testator, as
by excluding from communication with him 54 A.–7
others who would naturally be subjects of testamentary bounty, or by like conduct, the burden of proof is shifted, and explanation or denial is required. The probate judge, who heard and saw the witnesses, has found that there was no proof in this case imposing any burden of explanation or denial upon Mrs. Mason, and in that conclusion I en. tirely concur. I am unable to find any evidence justifying a contrary conclusion. If I had reached a different conclusion, I should be obliged, also, to conclude that Mrs. Mason had sustained such burden. She testified unequivocally that she never made any suggestions or exerted any influence upon her mother in respect to the execution of a will, or its provisions. There is no evidence that her mother relied upon her advice, or was accustomed to yield to her influence. On the contrary, in the sole instance in which it was sought to show the exertion of influence over her mother by Mrs. Mason, it clearly appears that the attempt was ineffective. Caveator and a witness called by her testify to having overheard Mrs. Mason suggest to her mother that caveator should be evicted from apartments which she occupied in her mother's house as a tenant. Mrs. Mason denied having made any such suggestion, but, if the charge is credited, it appears by the same evidence that her mother declined to act as suggested, and permitted caveator to remain as tenant of the apartments. The contention that Mrs. Mason exerted undue influence upon her mother is mainly put upon the grounds that her conduct was fraudulent, in that she permitted and encouraged an untruthful inference to operate upon her mother's mind, to the disadvantage of the caveator. The circumstances upon which this claim is made are these: Shortly before the will was executed, another daughter of decedent had died very suddenly from apoplexy. For certain reasons, the authorities of the church to which the parties belonged refused to permit the body of the deceased daughter to be buried in the cemetery of that church, and the family were compelled to bury it in another cemetery, which they deemed not consecrated. The evidence discloses that this occurrence occasioned very great sorrow to the testatrix, and also that she attributed the fact that the ecclesiastical authorities had excluded the body of her dead daughter from what she conceived to be proper burial to some act or omission to act on the part of the caveator. The evidence tends to show that the exclusion from burial in the Catholic cemetery was not brought about by any act of the caveator, but wholly because of the application of the rules of the church to the case in hand. But it also appears that the rules of the church in that respect were sometimes relaxed or dispensed with, or at least the parties believed so. Caveator admits that, in behalf of the family, she put herself in communication with the church authorities, and sought to obtain permission
for the burial of her sister in their cemetery. As her negotiation failed, it was not wholly unnatural in the deeply grieved mother to attribute the failure to caveator, as not having made all possible efforts in that regard. The caveator admits that although she knew of her inother's grief at the fact of the exclusion, and that her mother held her responsible for it, she never laid before her mother the real facts, or sought to disabuse her mind, or show her that her notions with respect to caveator's conduct were not justified. Whether or not the feeling of the testatrix against the caveator operated in producing the will in question and reducing the bequest to caveator to a nominal sum, is open to serious doubt. There is very persuasive evidence that testatrix had executed a previous will, made before the death and burial of the daughter, and therefore before there was any reason for the mother having a prejudice against caveator on account of any act or omission connected therewith, in which there was a like provision with respect to caveator. Assuming, however, that there may be justifiable inference from the evidence that testatrix deceived herself with respect to the conduct of the caveator, and that such self-deception produced the nominal bequest to caveator, that fact will not render invalid the testamentary disposition made by testatrix. She had a right to act upon her own inferences, and to give or withhold her bounty according as matters appeared to her, even though an apparent injustice is thereby done.
But the claim is that Mrs. Mason encouraged ber mother in her delusion respecting the conduct of the caveator, and that thereby she exerted over her mother an influence that undue. Undoubtedly knowingly false representation of facts to one who proposes to make a testamentary disposition of property, intended to influence and actually influencing his testamentary act, made by one who seeks and obtains an advantage therefrom, may be admitted to be an exertion of an influence that is undue; the will of the deceased being deemed to be dominated, not by excessive persuasion or threats or force, but by fraud. Stewart v. Jordan, 50 N. J. Eq. 733, 26 Atl. 706. The proofs respecting any communication between Mrs. Mason and her mother on the subject of the mother's anger at the caveator is extremely contradictory. But there is evidence which, if credited, seems to indicate that Mrs. Mason appeared to acquiesce in her mother's view of the responsibility of the caveator for the occurrence which the mothed deemed so grievous. But a case of undue influence is not thus made out. There is no evidence whatever that Mrs. Mason knew the real facts, or had any reason to believe that the real facts would have exonerated her sister, the caveator, from the charge her mother persisted in making. There is therefore no room for inference that Mrs. Mason
presented to her mother, by her acquiescence acts that the party applying for such rein her mother's view, a statement which was moval “may make and file a petition in such known to her to be false in fact. This re suit in such state court” at any time before sult renders it unnecessary to consider the the time for pleading expires. And, further, question whether, if there was evidence that that, “when the petition and bond are so Mrs. Mason was aware that her mother's filed, it shall then be the duty of the state animosity was founded upon error, and that court to accept said petition and bond and the real fact was that caveator had not been proceed no further in such suit.” The dedelinquent, as her mother deemed, she ex fendant's time to plead did not expire until erted an influence that was undue, by the May 18, 1901. On the 10th of the same mere fact that she did not disclose it to her month the petition and bond were duly filed mother. If her mother had questioned her in the office of the clerk of this court, and with respect to the facts, and especially if on the same day copies thereof, with notice she had connected such questioning with her of this motion, were duly served upon counpreparations to make a will, perhaps duty sel of the plaintiff. It is contended that the would have required her to disclose the real order of removal cannot now be allowed, befacts; and her suppression of them might cause the time to plead had passed before be considered fraudulent, and, if it influen this application was actually made. We are ced the mother, the influence might be con unable to concur in this view. We think sidered undue. But there is no evidence that the filing of the petition and bond in the whatever that the testatrix sought from Mrs. office of the clerk was a compliance with the Mason any statement respecting the facts, terms of the statute. or any advice or aid respecting the testa The state courts have generally, and as we mentary disposition of her property.
think properly, claimed the right to examine The attack upon this will as being the the petition and record, and determine whethproduct of undue influence has no support, in er the statutory requirements bave been commy judgment, in the evidence. The decree plied with, subject, however, to the final de admitting the will to probate was therefore termination of the federal court upon the proper to be made, and must be affirmed.
question of jurisdiction. This supervisory right of the state court was exercised in Na
tional Docks Railway Co. v. Pennsylvania (67 N. J. L. 219)
Railroad Co., 52 N. J. Eq. 58, 28 Atl. 71, but VERMEULE V. VERMEULE.
that case is not an authority against the (Supreme Court of New Jersey. Nov. 11,
practice that has been pursued in the mat1901.)
ter now before us. While the application for REMOVAL OF CAUSESFILING OF PETITION
an order is the better practice, it is not esENTRY OF ORDER-TIME-JURISDIC
sential to the transfer of the jurisdiction. TION OF STATE COURT.
The order for removal may be entered. 1. Under the United States removal act authorizing removal of a cause to the federal courts having jurisdiction of the same on an application made at any time before the time for
(67 N. J. L. 255) pleading has expired, and providing that when
BELLES v. KELLNER. the petition and bond are filed it shall be the duty of the state court to accept the same and
(Court of Errors and Appeals of New Jersey. proceed no further in the cause, where the pe
Nov. Term, 1901.) tition and bond were filed by defendant seeking removal, before the time within which he
Dissenting opinion. For majority opinion, was entitled to plead in the action had expired,
see 51 Atl. 700, 57 L. R. A. 627. it was immaterial that the order of removal was not within such time.
MAGIE, 'Ch. In my judgment the trial 2. State courts have jurisdiction to examine court committed no reversible error in declinthe petition and record on an application for removal of a cause to the federal courts, for the
ing to charge the request in question, because purpose of determining whether the statutory it immediately proceeded to give instructions requirements have been complied with, subject on the subject which were, in my judgment, to the final determination of the question of ju
unexceptional. risdiction by the federal courts.
Action by Cornelius C. Vermeule against John D. Vermeule. On petition for an order
(67 N. J. L. 239) to remove the cause to the United States Cir
STATE v. BONOFIGLIO. cuit Court for the District of New Jersey. (Court of Errors and Appeals of New Jersey. Granted.
Nov. Term, 1901.) Argued June term, 1901, before GUMMERE
Dissenting opinion. For majority opinion. and HENDRICKSON, JJ.
see 52 Atl. 712. McCarter, Williams & McCarter; for plaintiff. Washington B. Williams, for defendant. DIXON, J. My dissent from the judgment
rendered in this case is not caused by any PER CURIAM. This application is resist dissent from the doctrines stated in the opined by the plaintiff on the ground that it is ion delivered by the Chief Justice. I con. not made in time. The federal statute en cur in the principles there expressed.