Cecil v. Cecil

• Citation: 19 Md. 72
• Parties: JAMES CECIL v. OWEN CECIL, et al.
• Decision Date: 03 December 1862
• Court: Court of Appeals of Maryland

19 Md. 72

JAMES CECIL v. OWEN CECIL, et al.

Court of Appeals of Maryland.

December 3, 1862

Any person, on whose interests any order or decree of the Orphans Court has a tendency to operate injuriously, may appeal therefrom; but such person must show that he has an interest in the subject matter of the decree or decision appealed from.

In matters in rem., such as the factum of a will, where solemn proof has been resorted to, the decisions of the Orphans Court are final, if not appealed from; and issues involving the same questions will not be sent a second time.

If a party avails himself of the provisions of the Code, Art. 5 sec. 40, and places himself in a position to appeal, by immediately notifying his intention, and having the testimony reduced to writing, at his expense, he then becomes a party to the record, and may be concluded by it.

It is a well settled principle, that to make the record of a former trial evidence to conclude any matter in issue between the parties, it should appear, by the record or other proof, that the same matter was in issue and decided at the former trial between the same parties.

Estoppels must be reciprocal, and bind both parties. They operate only on parties and privies in blood or estate, and can be used neither by or against strangers.

All persons who are represented by the parties, and claim under them, or in privity with them, are equally concluded by the same proceedings.

Parties in the larger sense, are all persons having a right to control the proceedings, to make defence, to adduce and cross-examine witnesses, and to appeal from the decision, if an appeal lies; only those, therefore, who have enjoyed all these privileges, collectively, should be concluded by a decision, judgment or decree.

The administrator has no interest in establishing the fact of an advancement, and cannot be said to be a party in interest. It would be hazardous to extend the privity of interest in law, where there is no common interest in fact, and conclude a party in interest by a constructive representation.

Where a petition is filed by one of several distributees, charging certain specific advancements, in cash, notes and negroes, to his co-distributees, who, in their answers, admit the receipt of the money and property, as alleged in the petition, but deny that it was received by way of advancement, and aver and offer to prove matters in avoidance, which are denied by the replication--HELD: That such averment and offer does not so neutralize the admissions, as to render them inoperative to support the presumption of an advancement, arising from a gift of money from a parent to a child.

An answer will not support a matter set up in avoidance or discharge, where the matter of avoidance is a distinct fact. In such case the defence must be proved.

This is an appeal from a pro forma order and decree of the Orphans Court for Baltimore city, passed on the 19th day of December 1861, dismissing the petition of the appellant. The case is fully stated in the opinion of this Court.

The cause was argued before BOWIE, C. J., and BARTOL and COCHRAN, J.

A. H. Hobbs, for the appellant:

The question presented for consideration is, whether a distributee is bound by a proceeding in the Orphans Court between his co-distributees, and to which he was not a party on the record. The appellant will contend that he was not bound, and that his petition, as an original proceeding, was properly exhibited in the Court below. There is a striking analogy between the proceedings in the Orphans Court, and in Courts of Equity. To a great extent they have concurrent jurisdiction. Having jurisdiction of the same subject matter, and in the main for the same purposes, it reasonably follows, that the practice in the two Courts should be conducted on the same principles. If this were a proceeding in Chancery, it would be necessary that all persons beneficially interested, should be made parties to the proceeding; for otherwise, full and complete justice could not be done, nor would a multiplicity of suits be prevented. Sto. Eq. Pl., secs. 72 and 76. 6 H. & J., 14, Cromwell vs. Owings. We contend that the same rule holds good as to the Orphans Court. It would prove exceedingly oppressive, if a person should be visited with the effects and operation of a decree of Court, in which he had no opportunity to summon witnesses, or to cross-examine those summoned by other parties, and deprived generally of the opportunity of preparing for the investigation of the matter in controversy. It is for this, among other reasons, that judgments and decrees only bind parties and privies. 2 Phil. Ev., 3, 4, 7 and 9. 4 G. & J., 360, Shafer vs. Stonebraker.

A distributee is in no sense a privy to the administrator. 1 Mundf., 446. The general proposition will not be denied, that an interested person, not a party to the proceeding, and having no right of appeal, is entitled to bring an original suit in his own name. It is submitted that the special right given by the peculiar phraseology of the Act of 1818, ch. 204, does in no wise abridge or take away the ancient common law right of notice and warning, before judgment passed. The Act of 1818, was intended to extend, not to abridge, the rights of litigants; it was designed to increase and enlarge the facilities of full and thorough investigation, not to silence persons whose interests, it might be, were invaded and violated. Ordinarily, none but parties to the record can appeal; but parties to the record have a voice in the conduct and management of the cause. Here, the right of appeal does not depend upon the general law; it is the creature of a special statute. If a person, whose rights were injuriously affected by a decision of the Orphans Court, should only be permitted to appeal and seek redress in the Appellate Court, from the case made by others, and, it may be, imperfectly prepared, the right of appeal would frequently prove worthless, and of no avail. If the privilege of instituting a new suit should thus be cut off, the Legislature, instead of multiplying, as they supposed they were doing, the means of remedial justice, by passing the Act of 1818, would only have succeeded in disarming the litigant of his common law right.

Robert C. Barry and Thos. Donaldson, for the appellees:

The Orphans Court properly decided not to hear evidence in regard " to the sums of money charged to have been advanced to them," because that question had been heard and decided on by said Court, in the matter of the petition of Owen Cecil, et al., vs. Caroline Hooper and Mary Ann Harrington, (which case is now pending in this honorable Court, on an appeal prayed by James Cecil.) The same issue was embraced and involved in the petition of James Cecil, as was heard and determined by the Orphans Court for Baltimore city, in the antecedent petition of Owen Cecil, et al., vs. Caroline Hooper and Mary Ann Harrington, and the judgment of the Court below was binding, in so far as that question was concerned. Pegg, et al., vs. Warford, 4 Md. Rep., 385. Warford vs. Van Sickle, 4 Md. Rep., 397.

The law assumes that every one interested is, in fact, a party in the Orphans Court. Code, Art. 5, secs. 39 and 40. Were not the ends sought to be arrived at, by the petition filed by James Cecil, identical with those set forth in the petition of Owen Cecil and others? If so, the Orphans Court was right in refusing to hear testimony upon the same subject matter on which it had passed judgment. The Courts do not favor litigation, and if each person claiming to have an interest in a case, be allowed to file a petition embracing the same subject matter, after the Court has pronounced on it, when will a case terminate?

OPINION

BOWIE, C. J.

This was a petition filed in the Orphans Court of Baltimore city, by the appellant, on the 25th November 1861, against the appellees, as administrator and next of kin of Wm. Cecil, deceased, charging that Owen Cecil, as administrator, was about to make distribution of his intestate's estate, of which the appellant and appellees were co-distributees; that the defendants had received certain advancements, in cash and negroes, and praying the same might be brought into hotch-pot. The appellees, Owen and William, answered and denied they had received any advancements.

The appellees, Harrington and Hooper, by their answer, insisted that by an order passed by the Orphans Court, in the cause of William Cecil, Thomas Owens, and Owen Cecil, adm'r, against the said Harrington and Hooper, on the 27th of November 1861, the question was fully adjudicated and disposed of, they admit the receipt of $4,500, but aver that it was given to them by said deceased for services rendered; in reference to the negroes, they claim to hold them under bills of sale. To these answers a replication was filed, stating, inter alia, that the appellant's petition was exhibited and filed some time before the alleged adjudication in the cause above referred to; that he was not a party to that cause, not notified or summoned to appear, and, for these causes, was not...