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same, recovery cannot be had. If he received the plaintiff's money, or was the knowing instrument of some one else doing so, he ought not to escape liability to pay on that ground.

Whether he received the money personally, or not, is immaterial, if by his procurement some one else did get the money upon the faith of what he did. It was all one transaction." So in the case before us the First National Bank of Westminster is supposed to have parted with its money upon the faith not only of the principal note of $5,000, but also of the other notes put up as collateral. "The two, as elements of the consideration, are inseparable. The courts will not inquire whether the holder parted with value because of the original or collateral paper. They consider such value given for both." Bank of State of N. Y. v. Vanderhorst, 32 N. Y. 553; Norton on Bills and Notes (3d Ed.) 314, 315. Being thus an executed contract, even if the transaction were a sale, and not a discount, recovery could be had under the Katz Case, supra, which was held not to be in conflict with Lazear's Case.

Finding no reversible error in any of the rulings of the lower court, the judgment will be affirmed. Judgment affirmed, with costs above and below.

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APPEAL-AGREED STATEMENT OF FACTS-AFFIRMANCE-REMAND.

1. Code, art. 5, § 36, declares that if it shall appear to the court of appeals that the substantial merits of a cause will not be determined by the reversing or affirming of any decree or order, or that the purpose of justice will be advanced by permitting further proceedings, the court may remand the case for further proceedings. Held that, after the court of appeals has entered a final order of affirmance, it is without power to remand a case upon an ex parte application, alleging that because of facts not appearing in the record, and contradictory to an agreed statement of facts upon which the case was decided, substantial justice has not been done.

On motion that the cause be remanded for an amendment of the pleadings and further proceedings. Motion overruled.

For former opinion, see 51 Atl. 844.

MCSHERRY, C. J. This cause was ar gued and decided during the last January term. The questions involved in the controversy were presented by a bill in equity, and by an answer thereto. The facts were not disputed. On the contrary, they were distinctly agreed to. Accepting as true the averments of the bill which were admitted by the answer,-and all the material ones were admitted,-we proceeded to decide, and did decide, the legal questions raised, discussed, and submitted. After the judgment of this court had been handed down, a mo

tion was filed asking this court to remand the cause for amendment of the pleadings and for further proceedings. That motion will now be considered.

In the petition accompanying the motion, it is stated that the facts which should have been presented, but were not, are wholly and radically different from those set forth in the bill and answer, and relied on in the decision heretofore made; and it is asserted that if the appellant be given an opportunity to submit the actual facts, in place of those erroneously assumed in the pleadings to be true, the result would be precisely the reverse of the one heretofore announced. We are therefore asked to remand the case to the court below, notwithstanding we have affirmed the decree appealed against, so that the pleadings may be amended in such a way as to present an entirely different and exactly opposite state of facts. In a word, the request is that, instead of affirming the decree, the accuracy of which, on the facts disclosed as they now stand by the admission of the parties, is not at all disputed, we remand the record with instructions to allow the parties to so amend the pleadings as to make a totally different case from the one they originally presented. The ground upon which this request is plaIced is that the case was a "noncontentious one," that is a case which did not involve a hostile contest as respects the facts, because the facts were conceded. It is insisted that inasmuch as facts were conceded which ought not to have been conceded, because, in reality, they did not exist, the appellant should not be bound by the concession after the decision has been adverse to her, but that she should be allowed to withdraw that concession now, and should be permitted to assert and rely on precisely opposite facts. Have we the power to do this? Section 36, art. 5, of the Code, declares: "If it shall appear or be shown to the court of appeals that the substantial merits of a cause will not be determined by the reversing or affirming of any decree or order that may have been passed by a court of equity, or that the purposes of justice will be advanced by permitting further proceedings in the cause, either through amendment of any of the pleadings or the introduction of further evidence, making additional parties, or otherwise, then the court of appeals, instead of passing a final decree or order, shall order the cause to be remanded to the court from whose decision the appeal was taken, and thereupon such further proceeding shall there be had by amendment of the pleadings, or further testimony to be taken, or otherwise, as shall be necessary for determining the cause upon its merits, as if no appeal had been taken in the cause," etc. It must be borne in mind that this court has no original jurisdiction. Its functions are purely appellate. If the statutes do not give jurisdiction to hear a case except upon the record as

transmitted, then it is obvious that this court has no power to inspect documents or to consider evidence with a view to determining whether facts stated in the record to be facts are facts, or simply fiction. To decide whether conceded facts are facts is to determine, not what is the law applicable to the conceded facts, as was done by the court below and by this court, but to investigate a distinctly new question, not raised by the record, and not suggested in the court below. We declined to do this very thing in Stanley v. Safe Deposit Co., 87 Md. 458, 459, 40 Atl. 53; Rogers, Brown & Co. v. Citizens' Bank, 93 Md. 618, 49 Atl. 843. We have been furnished no reference to any adjudged case which holds that this court, after deciding a case on a record sufficiently full and explicit to justify the rendition of a final decree, can go into an investigation, outside of the record, to ascertain whether the facts contained in the record, and upon which the decision was based, were in reality true. In the very nature of things, such a power could not exist, because it would involve an independent investigation, and would require this court to decide, as a court of first instance, and upon evidence adduced before it, an issue of fact not embraced in the record of the case. The exercise of such a power might, and most probably would, in some proceedings necessitate the summoning and examination of witnesses to determine whether the conceded facts were facts; and this court has no jurisdiction to do any such thing. Lenderking v. Rosenthal, 63 Md. 38. After the case just cited had been finally decided, a motion was filed asking for a modification of the decree of reversal, and certain allegations of fact were made in support of the motion. Those facts, if they existed, were not disclosed by the record. The appellant answered the application, and denied the averments of fact. In overruling the motion, and in declining to remand the cause, under section 28, now section 36, art. 5, of the Code, this court said: "It is manifest, therefore, upon the allegations thus made by the respective parties, that questions for the exercise of original jurisdiction are presented, which this court, as an appellate tribunal, cannot hear and decide. Such questions must be presented to and be passed upon by the court below, having cognizance of the proceedings. In the manner in which they are presented here, we can express no opinion in regard to them, not being embraced in the appeal which we have decided." If this court is without authority to make such an investigation so as to enable it to determine whether a case, after having been decided, shall be remanded, with a view to being amended in a way to present precisely opposite facts, it is equally without authority to remand the record for a similar amendment merely upon the ex parte application of the unsuccessful litigant. This court cannot pass an order sending the rec

ord back, so that the pleadings may be amended, simply upon the allegation that the conceded facts are wrong, when it has no power to ascertain by the aid of evidence whether the allegation of error is correct. To hold the contrary would be tantamount to deciding that, though we were without jurisdiction to investigate the truth of conceded facts, we yet have jurisdiction to act upon a simple allegation that the conceded facts were not true. Where would such a doctrine lead? It will not do to say that the doctrine is confined to cases where the facts are admitted by the pleadings, because there is no difference between such an admission and one made in an agreed statement of facts, or in a case stated. If the doctrine is a sound one at all, it is applicable to every case in which a decision has been rendered upon a state of facts honestly believed to exist, but subsequently doubted, disputed, or discovered not to exist. Litigation would be greatly protracted by the adoption of such a doctrine. Each decision of the same case might develop some new feature that would furnish the ground for an additional amendment, and the contest would be drawn out by successive applications for remanding with a view to other amendments.

Returning to the language of the statute, it is apparent that the Code contemplates an entirely different situation from the one now being dealt with. Whenever it shall appear or be shown to the court of appeals: First, that the substantial merits of a cause will not be determined by affirming or reversing a decree; or, secondly, that the purposes of justice will be advanced by permitting further proceedings, then and in either of these events the court of appeals, "instead of passing a final decree or order," shall remand the cause, etc. Such a remanding, if made, must be made before final decree, and because a final decree cannot be passed on the record as it stands without doing injustice. In addition to this, such a remanding is allowed only when it appears or is shown to the court by the record in the case either that the substantial merits of the case will not be determined by an affirmance or a reversal, or that the purposes of justice will be advanced by permitting further proceedings. In Genl. Ins. Co. v. U. S. Ins. Co., 10 Md. 528, 69 Am. Dec. 174, it was said: "But the record must indicate that the ends of justice will be promoted by such further proceedings, in order to authorize this court to remand a cause." Neither of the abovenamed alternatives will warrant the striking out of a final decree in order to let in a remanding, so that an entirely new and different case may be made by amendment. And so this court has flatly held. Benscotter v. Green, 60 Md. 333. Indeed, a plaintiff is not at liberty to abandon the entire case made by his bill, and to make a new and different case by way of amendment. Bannon v. Comegys, 69 Md. 422, 16 Atl. 129.

The thirty-sixth section of article 5 of the Code was taken from the Acts of 1832, c. 302, § 6, and has been adverted to-sometimes applied, and sometimes not-in 64 cases, beginning with Kent's Adm'rs v. Taneyhill, 6 Gill & J. 1, and ending with Rogers, Brown & Co. v. Citizens' Bank, 93 Md. 618, 619, 49 Atl. 843; and in not one of those 64 cases, covering a period of 70 years during which the act of 1832 has been in force, was an application made like the one now being considered. The nearest approach to the pending motion will be found in Paine v. France, 26 Md. 46, and that application was refused.

We do not perceive how the circumstances now relied on, even if proved, would change the conclusion heretofore reached, unless the authority of the case of In re Armitage, [1893] 3 Ch. 337, be repudiated. But we refrain from discussing a situation which is not before us, though we may add that a resolution adopted by the directors of the R. Tynes Smith Company subsequently to the decision of this cause, and considerably more than a year after the company went out of existence, can have no influence on any of the questions considered and decided heretofore, or on any of those raised by the motion now under review.

It is unfortunate if the appellant misconceived the facts in the first instance, but the appellees deny that there was any such misconception. They assert that the facts alleged in the bill and admitted by the answer are true. Thus a distinct issue is presented by the motion and the answer thereto, and It is an issue which this court has no jurisdiction to decide.

For the reasons assigned, the motion must be overruled. Motion overruled.

(64 N. J. E. 327)

ZELOSOSKEI v. MASON. (Prerogative Court of New Jersey. Jan. 27, 1903.)

WILLS-UNDUE INFLUENCE.

1. A testatrix, having three daughters, left the bulk of her estate to two of them, bequeathing to the other only $1. The daughter thus discriminated against filed a caveat against probate, and contended that the will was the product of the undue influence of one of her sisters. who resided with the mother. It appeared that testatrix had imbibed a strong prejudice against the caveator, by reason of an inference drawn by her in respect to caveator's conduct, which inference was probably unjustified, but was not unnatural under the circumstances known to testatrix. Held, that a case of undue influence by false statements or suggestions on the part of the daughter who lived with testatrix was not made out by mere proof that she acquiesced in her mother's view, without proof that she knew, or at least had reason to believe, that her mother's prejudice was unwarranted by the facts.

ty.

(Syllabus by the Court.)

Appeal from orphans' court, Essex coun

Application of Elizabeth Mason for the probate of the will of Bridget Trainor. From an order allowing the probate, Bridget Zelososkei, a caveator, appeals. Affirmed.

William J. Kearns, for appellant. Guild, Lum & Tamblyn, for respondent.

MAGIE, Ordinary. This is an appeal from a decree of the orphans' court of Essex county admitting to probate a written instrument as the last will and testament of Bridget Trainor, deceased. The appellant is a daughter of Bridget Trainor, and the will discriminates against her, and gives her only a nominal share of the estate of testatrix. At the time of the execution of the will there were three children of Bridget Trainor living, all of whom were daughters. The caveator was one; another was Mrs. Keyes, living in Buffalo; another was the respondent Elizabeth Mason, a widow, who had lived with her mother from a time about three months before the execution of the will, and who continued to live with her until her death, which occurred nearly three years afterward. The bulk of testatrix's estate was by the will given to Mrs. Mason and Mrs. Keyes. The bequest to the caveator was $1. The evidence before the orphans' court, appearing in the transcript, clearly shows that the instrument in question was executed with all the formalities necessary to make it a valid testamentary disposition of property. The evidence also discloses that at the time of the execution of the will the testatrix, although aged and somewhat infirm, possessed testamentary capacity; and there was no question in the court below, and there has been no question here, but that she was capable of making a will, or that she had executed properly the will in question. The contention below, and here, has been that the will was not the act of decedent, but was induced by the undue influence of Elizabeth Mason, the daughter who lived with her mother, the decedent. The fact that Elizabeth Mason was, and had been for some little time, an inmate of her mother's house, living with her in the close intimacy that such conditions produce, no doubt discloses that she had the opportunity to exert some influence upon her mother. But the burden of establishing by proof the existence of that influence which is called "undue" is primarily upon the person who asserts its existence. Proof that opportunity existed to exert influence will not suffice. Nor will such proof, standing alone, raise such a presumption as to shift the burden, and require explanation or denial from the accused person. When proof of the opportunity to exert influence is supplemented by proof of the existence of relations of a confidential character, justifying the inference that the testator relied upon the advice and assistance of the other person in business matters, or by proof that such person 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 entirely 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 mother'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 her mother in her delusion respecting the conduct of the caveator, and that thereby she exerted over her mother an influence that was undue. Undoubtedly a 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 in her mother's view, a statement which was known to her to be false in fact. This result renders it unnecessary to consider the question whether, if there was evidence that Mrs. Mason was aware that her mother's animosity was founded upon error, and that the real fact was that caveator had not been delinquent, as her mother deemed, she exerted an influence that was undue, by the mere fact that she did not disclose it to her mother. If her mother had questioned her with respect to the facts, and especially if she had connected such questioning with her preparations to make a will, perhaps duty would have required her to disclose the real facts; and her suppression of them might be considered fraudulent, and, if it influenced the mother, the influence might be considered undue. But there is no evidence whatever that the testatrix sought from Mrs. Mason any statement respecting the facts, or any advice or aid respecting the testamentary disposition of her property.

The attack upon this will as being the product of undue influence has no support, in my judgment, in the evidence. The decree admitting the will to probate was therefore proper to be made, and must be affirmed.

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REMOVAL OF CAUSES-FILING OF PETITION-
ENTRY OF ORDER-TIME-JURISDIC-
TION OF STATE COURT.

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 pleading has expired, and providing that when the petition and bond are filed it shall be the duty of the state court to accept the same and proceed no further in the cause, where the petition and bond were filed by defendant seeking removal, before the time within which he was entitled to plead in the action had expired, it was immaterial that the order of removal was not within such time.

2. State courts have jurisdiction to examine the petition and record on an application for removal of a cause to the federal courts, for the purpose of determining whether the statutory requirements have been complied with, subject to the final determination of the question of jurisdiction by the federal courts.

Action by Cornelius C. Vermeule against John D. Vermeule. On petition for an order to remove the cause to the United States Circuit Court for the District of New Jersey. Granted.

Argued June term, 1901, before GUMMERE and HENDRICKSON, JJ.

McCarter, Williams & McCarter, for plaintiff. Washington B. Williams, for defendant.

PER CURIAM. This application is resisted by the plaintiff on the ground that it is not made in time. The federal statute en

acts that the party applying for such removal "may make and file a petition in such suit in such state court" at any time before the time for pleading expires. And, further, that, "when the petition and bond are so filed, it shall then be the duty of the state court to accept said petition and bond and proceed no further in such suit." The defendant's time to plead did not expire until May 18, 1901. On the 10th of the same month the petition and bond were duly filed in the office of the clerk of this court, and on the same day copies thereof, with notice of this motion, were duly served upon counsel of the plaintiff. It is contended that the order of removal cannot now be allowed, because the time to plead had passed before this application was actually made. We are unable to concur in this view. We think that the filing of the petition and bond in the office of the clerk was a compliance with the terms of the statute.

The state courts have generally, and as we think properly, claimed the right to examine the petition and record, and determine whether the statutory requirements have been complied with, subject, however, to the final determination of the federal court upon the question of jurisdiction. This supervisory right of the state court was exercised in National Docks Railway Co. v. Pennsylvania Railroad Co., 52 N. J. Eq. 58, 28 Atl. 71, but that case is not an authority against the practice that has been pursued in the matter now before us. While the application for an order is the better practice, it is not essential to the transfer of the jurisdiction. The order for removal may be entered.

(67 N. J. L. 255)

BELLES v. KELLNER.

(Court of Errors and Appeals of New Jersey. Nov. Term, 1901.)

Dissenting opinion. For majority opinion, see 51 Atl. 700, 57 L. R. A. 627.

MAGIE, Ch. In my judgment the trial court committed no reversible error in declining to charge the request in question, because it immediately proceeded to give instructions on the subject which were, in my judgment, unexceptional.

(67 N. J. L. 239)

STATE v. BONOFIGLIO. (Court of Errors and Appeals of New Jersey. Nov. Term, 1901.) Dissenting opinion. For majority opinion. see 52 Atl. 712.

DIXON, J. My dissent from the judgment rendered in this case is not caused by any dissent from the doctrines stated in the opinion delivered by the Chief Justice. I concur in the principles there expressed.

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