Bogart v. Willis

• Decision Date: 16 January 1930
• Docket Number: 25.
• Citation: 148 A. 585,158 Md. 393
• Parties: BOGART v. WILLIS ET AL.
• Court: Maryland Court of Appeals

148 A. 585

158 Md. 393

BOGART v. WILLIS ET AL.

No. 25.

Court of Appeals of Maryland

January 16, 1930

Appeal from Superior Court of Baltimore City; George A. Solter Judge.

Suit by Henrietta Bogart against Luther M. R. Willis and others executors of the last will and testament of John A. Calhoun deceased. Judgment for defendants, and plaintiff appeals. Reversed, and new trial awarded.

Argued before BOND, C.J., and PATTISON, URNER, ADKINS, OFFUTT, DIGGES, PARKE, and SLOAN, JJ.

Charles G. Baldwin, of Baltimore, for appellant.

Hall Hammond, of Baltimore, for appellees.

DIGGES J.

The appeal in this case is from a judgment of the superior court of Baltimore City in a suit wherein the appellant was plaintiff and the appellees, executors of the last will and testament of John A. Calhoun, deceased, were defendants. The case was tried before the court sitting as a jury. At the close of the plaintiff's case the court instructed itself, sitting as a jury, that the plaintiff had offered no legally sufficient evidence entitling her to recover and its verdict must be for the defendant. The facts out of which the controversy arises are:

Henry A. Calhoun, a resident of Canada, died in 1912, leaving a last will and testament and codicils thereto, by the terms of which the plaintiff, Henrietta Bogart, was bequeathed an outright legacy of $15,000 and in addition thereto there was created a trust of $25,000, the income from which was to be paid to Henrietta Bogart so long as she lived, and after her death was to revert to the estate of Henry A. Calhoun, and pass under the residuary clause of his will to John A. Calhoun. The trustees of this $25,000 were John A. Calhoun and Edmund G. Kaye, who were also named as executors in the will. John A. Calhoun and Henrietta Bogart were brother and sister, and nephew and niece, respectively, of Henry A. Calhoun, the testator. Shortly after the death of the testator, it appears that Edmund G. Kaye, one of the executors and trustees, died, and from that time until July 11, 1926, the date of the death of John A. Calhoun, he was the sole executor and trustee under his uncle's will. John A. Calhoun also left a will, of which the defendants herein were the executors, and by the provisions of which, after the payment of certain specific legacies, the whole of his estate, amounting to about $200,000, was devised and bequeathed to his widow for life, and after her death to be divided into two equal parts, one of which was devised to the children of his sister, Henrietta Bogart, share and share alike, and the other of which was devised and bequeathed to the children of George F. Craig. The record discloses that after the death of John A. Calhoun there was considerable correspondence between his widow and his executors on one side, and the plaintiff and her attorneys on the other, beginning in August, 1926, and continuing until about the time of the institution of the suit, which was filed on July 3, 1928.

The declaration contained the money counts, and a special count setting forth that the defendants had qualified as executors of the last will and testament of John A. Calhoun, and had received all the property belonging to his estate, subject to the obligation to pay his debts, and, further, that John A. Calhoun was at the time of his death indebted to the plaintiff in the full sum of $15,000, with interest from the 1st of July, 1926, and that there was more than sufficient property in the hands of the executors with which to pay said indebtedness, and also that they had stated an account showing more property than necessary to pay said debts. The defendants filed the general issue plea, and in addition a plea setting forth that they, after the death of John A. Calhoun, were informed of the claim of the plaintiff, that it was disputed and rejected by them in writing, and that the plaintiff did not, within nine months after the claim was rejected, bring suit thereon. There was an additional plea of three years' limitation, which was withdrawn at the trial.

On July 31, 1928, the plaintiff filed the account, with a double affidavit, one being made by herself and the other by her husband. The record also discloses that, since the death of John A. Calhoun, Charles G. Baldwin has been duly appointed substitute trustee under the will of Henry A. Calhoun, in place of John A. Calhoun, deceased, and there is no dispute that the $25,000, constituting the trust fund under which Mrs. Bogart had a life estate, either has been or will be paid over to the substituted trustee by the executors of John A. Calhoun. The real dispute in the case is as to whether or not John A. Calhoun, at the time of his death, and therefore his executors now, are indebted to Henrietta Bogart in the sum of $15,000, the specific outright legacy bequeathed her by her uncle, Henry A. Calhoun, with interest thereon from July 1, 1926. The defendants by their pleas deny this indebtedness, and contend that the plaintiff has not established the debt by legal evidence. This contention was sustained by the lower court, as evidenced by the granting of the defendants' prayer.

Before passing upon the exceptions presented by the record, we feel constrained to call attention to the irregular and unsatisfactory state of the record, in presenting the rulings of the lower court which we are called upon to review. Perhaps this is due to some extent to the fact that the case was tried before the court sitting as a jury, and for this reason the rulings were not as decisive and clean-cut as would have been the case, had it been tried before a jury. Be this true or not, it presents a record in this court from which it is extremely difficult to determine the precise rulings covered by the exceptions. The depositions taken in Canada were read in open court, question and answer by question and answer, and during the reading of which the record does not disclose that there was any objection made to any of the testimony. At the close of this reading, the court, in what practically amounts to an opinion, covering more than two pages of the record, undertakes to state from his recollection all of the questions involved in the objections to testimony, and to summarize the rule in respect thereto, and concludes by saying:

"The defendants then moved that the deposition of William Boyer be stricken out, and that those parts of the deposition of the plaintiff which related to her transactions (except contents of checks) or conversations with the defendants' decedent be stricken out, exceptions having been previously noted by defendants to their admission, and the court granted the motion of the defendants, and struck out the depositions as aforesaid, and to the action of the court in granting this motion of the defendants the plaintiff excepted."

Such a mode of ruling upon the admissibility of evidence and the exceptions thereto does not meet with the approval of this court. It requires us to go over this testimony, and determine which of it was in fact objected to and ruled out. This could only be done by exercising our discretion as to whether a given question and answer was in fact testimony as to a statement made by deceased, or as to a transaction had with the deceased, without any certainty that those in fact were the questions and answers to which objection had been interposed and sustained by the lower court. Such a procedure would be the exercise of original and not appellate jurisdiction by this court.

The plaintiff sought to establish her claim by putting in evidence the will of her uncle, Henry A. Calhoun; by an account with a double probate; by the testimony, taken under commission, of Thomas W. Boyer, the manager of the Royal Bank of Canada, at Edmonton, South Alberta; her own testimony, taken in the same way; and the testimony of Mr. Luther M. R. Willis, given at the trial in Baltimore. The witness Boyer produced 14 deposit slips in connection with the account of the plaintiff in his bank, being account No. B-251. These deposit slips extended from January 16, 1925, to June 5, 1926. He explained that these deposit slips indicated that the proceeds or part of the proceeds of certain checks, each in the amount of $200, coming from the United States, had either been deposited in whole to the account of the plaintiff, or some portion of the check had been received in cash and the balance deposited. The witness further stated that he did not look after the deposits himself, except by checking them at the end of each day, which he did; that the only personal knowledge he had in the matter was that gained from checking the deposit slips at the end of the day; that he neither received the deposits himself nor saw the money, checks, or drafts represented by the deposits; and that he had no knowledge of the source from which the money came. He also produced 14 copies of these deposit slips, and stated that the originals which he had previously produced were the property of the bank, which the bank did not allow out of its possession, and stated that he had compared the copies with the originals and found them to be true copies of the originals. He then offered to put in the copies as exhibits, which were marked "Exhibit No. 1" and attached to his deposition.

This evidence was excluded by the trial court, upon objection by the defendants, and forms one of the exceptions in the record. In passing upon this point, the lower court said "I know of no principle involved which permits the introduction of secondary evidence in cases of this sort. I do not know that copies have ever been permitted except in the case of public documents." The defendants contend this ruling to be correct, upon the authority of Dick v. Biddle Bros., 105 Md. 308, 66 A. 21, Stevens v....