Clark v. Callahan

• Citation: 66 A. 618,105 Md. 600
• Parties: CLARK v. CALLAHAN et al.
• Decision Date: 26 April 1907
• Court: Maryland Court of Appeals

66 A. 618

105 Md. 600

CLARK v. CALLAHAN et al.

Court of Appeals of Maryland

April 26, 1907

Appeal from Circuit Court of Baltimore City; Henry Stockbridge Judge.

Suit by Agnes Dooley Clark against Edith B. Callahan and another. From a decree in favor of defendants, complainant appeals. Reversed.

Argued before BOYD, PEARCE, BURKE, SCHMUCKER, and ROGERS. JJ.

Chas Lee Merriken and J. Kemp Bartlett, for appellant.

Conway W. Sams, for appellees.

PEARCE J.

The bill in this case was filed by the appellant against the appellees to procure an accounting from one of the appellees Edith B. Callahan, for one-half the proceeds of certain benefit certificates received by her, and for an injunction against the said Edith B. Callahan, and the other appellee Edward J. Callahan, her husband, restraining them from conveying away or disposing of a certain house and lot in Baltimore, alleged to have been purchased by the said Edith B. Callahan partly with a portion of the proceeds of said certificates, and to be the only tangible property owned by her. It appears in the evidence that the plaintiff, when about 12 years of age, was taken into the family of Col. Charles W. Raphun, of Baltimore, a relative on her mother's side: that she resided there until his death, in February, 1903, when she was about 19 years of age, being maintained and cared for by him as if she were his child; and that he always expressed and evinced a strong affection for her. Col. Raphun was at the time of his death an official in the office of the collector of the port of Baltimore, and was a man of small means, but held a benefit certificate for $2,000 in the Ancient Order of United Workmen, and another for $3,000 in the Improved Order of Heptasophs; both payable at his death. These certificates were originally payable to his second wife, Estelle V. Raphun, from whom he was separated about six months before his death; she having filed a bill for divorce, which was pending when he died. After this separation, on June 5, 1902, he surrendered the original certificates, and new certificates were issued, in which Mrs. Callahan was by his direction named as the beneficiary. Col. Raphun had three children, one daughter, Mrs. Callahan, by his first wife, who was married in 1899, and thereafter did not live with her father, and two sons, one of whom resided in Chicago, and the other was under 21 and lived at home. The bill alleged that, about the time of the separation, Col. Raphun declared his intention to have his said daughter and the plaintiff substituted as joint beneficiaries under said benefit certificates, so that the proceeds thereof upon his death should be paid to them in equal shares, but found that this could not be done, because, under the rules of said associations, only blood relatives of members could be made beneficiaries; and that thereupon, after consulting his daughter, and obtaining from her a solemn promise that the proceeds of said certificates should he equally divided between herself and the plaintiff when paid, he caused his said daughter to be made the beneficiary of said certificates in the place of his wife, upon the express trust and condition that said daughter should share said proceeds equally with the plaintiff; and that said trust was accepted by his daughter upon such condition. Soon after Col. Raphun's death, his wife brought a suit in replevin against Mrs. Callahan, and also an action of slander, and claimed to be entitled to the proceeds of said benefit certificates. In May, 1904, while these litigated matters were pending, including interpleader proceedings between Mrs. Raphun and Mrs. Callahan as to their respective rights to the proceeds of said benefit certificates, Mrs. Callahan, as the bill alleges, without the knowledge or consent of the plaintiff, compromised all the pending litigations between her step-mother and herself by payment to her, out of the proceeds of said benefit certificates, of the sum of $1,500, and the payment of certain costs and expenses attending said litigations, amounting to $774.91, and leaving a net amount coming to her from said certificates of $2,725.09. The defendants answered the plaintiff's bill, denying all the material allegations, and specifically denying that any promise was ever made by Mrs. Callahan to pay any part of the proceeds of said certificates to the plaintiff, or that the name of Mrs. Callahan was substituted as beneficiary therein upon any trust or condition whatever; denying that she accepted any trust whatever, and alleging (under oath) that she could not have done so, because she was not aware until after her father's death that she was named as beneficiary in said certificates. The answer admitted the compromise above mentioned, but alleged that it was made with plaintiff's knowledge, and alleged that the plaintiff was largely the cause of the slander suit mentioned. Testimony was taken by both parties, and after hearing and argument, the court, being of opinion that no valid trust was created by Col. Raphun in the said benefit certificates, the plaintiff's bill was dismissed, and this appeal is taken from that decree.

Before considering the principal question in the case, we will advert to the exclusion of certain testimony which was offered by the plaintiff. The depositions of Mr. and Mrs. Stiles, residents of West Virginia, and of Mrs. Dooley, the mother of plaintiff, a resident of Virginia, were taken before a notary of those respective states in the manner provided by section 17 of article 35 of the Maryland Code of Public General Laws after five days' notice to the opposite party. When it was proposed to read these depositions, the defendants objected, and on their motion the depositions were excluded or suppressed. The principal objection made was that this method of taking the testimony of nonresident witnesses, not parties to the cause, is only available in courts of law, and time the only method of taking the testimony of such nonresident witnesses, in courts of equity, is under a commission issued from the court under its own rules; but it was also contended that as section 241 of article 16 requires evidence taken and returned to be opened by the clerk, and to remain in court ten days, subject to exception, before the cause shall be taken up for hearing, unless, by agreement of the parties, such time shall be waived, and as in this case the testimony had only laid in court five days, and there was no waiver of time when the cause was taken up for hearing, the depositions were properly excluded. Sections 16 and 17 of article 35 should be read together, and so read, unqualified by any other provision of law in pari materia, section 17 must be regarded as applying only to the courts mentioned in section 16--that is, courts of law--notwithstanding the broader language of section 17. In Goodman v. Wineland, 61 Md. 456, it was held that the provisions of section 16, were not applicable to nonresident parties, except in the discretion of the court upon satisfactory proof of permanent inability to attend the court in person. But section 18 of article 35 (Chapter 399, p. 1004, Laws 1898) provides that "the testimony of nonresident parties to a cause, may be taken, whether in their own behalf or by the opposite party, in the same manner as the testimony of other nonresident witnesses; this to apply to courts of law and equity, and to proceedings before magistrates." The defendants contend that, as these witnesses are not parties, that section cannot affect the question; but we cannot agree to this. If that were the case, nonresident parties would be put in a better position than other nonresident witnesses, and this can hardly be supposed to have been the purpose of the lawmakers. We think the purpose was to do away with all discrimination, in this respect, between nonresident parties, and other nonresident witnesses, and also to permit the taking of the testimony of any witnesses in courts of equity, as well as in courts of law, under any method open to nonresident witnesses not parties to the cause. The words used in section 18, "in the same manner as the testimony of other nonresident witnesses," must be taken not only to mean that parties are to have the same privileges as other witnesses, but also that other witnesses are to have the same privileges as parties, both in courts of law and equity. Nor do we think the fact that these depositions had not laid in court ten days warranted their exclusion. The law does not forbid reading the depositions in such case. It forbids that the case be taken up for hearing without a waiver of such time. The proper course was to object to the taking up of the case, and consent to take it up should be held to operate as an implied waiver of time. In Clogg v. McDaniel, 89 Md. 419. 43 A. 795, it was held that irregularities in the execution of a commission, which might justify the suppression of the evidence if availed of at a proper time and in the proper manner, would, not be allowed to prevail "if sprung at a time when it would be impossible to retake the depositions before the case has been fixed and taken up for hearing," and the rule is so laid down in Miller's Eq. Proc. § 219. We think these depositions should not have been excluded.

We have carefully read and considered all the testimony, and it amply sustains all the material averments of fact contained in the bill. Col. Raphun told Mrs. Stiles in September, before his death, that the plaintiff had nursed him faithfully; that she had always been as a daughter to him, and hers was the only care he had in his illness; that he had meant to adopt her, but had put it off too long, but that he had amply provided for her, and he told Mr. Stiles subsequently that he had made the same...