Houston v. Wilcox

• Decision Date: 24 June 1913
• Citation: 88 A. 32,121 Md. 91
• Parties: HOUSTON et al. v. WILCOX et al.
• Court: Maryland Court of Appeals

88 A. 32

121 Md. 91

HOUSTON et al. v. WILCOX et al.

Court of Appeals of Maryland

June 24, 1913

Appeal from Circuit Court, Montgomery County; John C. Motter, Judge.

Suit by William T. Houston and another against Walter R. Wilcox and others. From an order of the circuit court dissolving an injunction and dismissing the bill, the complainants appeal. Affirmed.

Argued before BOYD, C.J., and BRISCOE, BURKE, THOMAS, PATTISON STOCKBRIDGE, and CONSTABLE, JJ.

William T. Houston, of Washington, D. C., for appellants. Charles W Prettyman, of Rockville, and Jackson H. Ralston, of Washington, D. C., for appellees.

BRISCOE J.

This is an appeal from an order of the circuit court of Montgomery county, sitting as a court of equity, dissolving an injunction on a bill filed by the appellants against the appellees, and dismissing the bill. The material facts of the case, are matters of record, and are therefore practically undisputed. The object of the proceedings was to restrain a sale of real estate under a deed of trust, made and executed on the 2d day of February, 1909, by one Henry Warmouth Houston, of the state of New York, to the appellees, Mary I V. Waters, as mortgagee, and Walter R. Wilcox and Jackson H Ralston, as trustees under the deed. The prayer of the bill is not only for a perpetual injunction, but that the deed of trust be vacated, canceled, and set aside, as a fraud upon the appellants' rights and as a cloud upon their title to the property. The real estate is situate in the town of Kensington, in Montgomery county, Md., and was owned by Mrs. Sarah Annie Gardner at the time of her death, and was by her last will and testament dated the 27th day of July, 1908, devised to Henry Warmouth Houston, the mortgagor and grantor in the deed. The deed of trust is dated the 2d day of February, 1909, and was executed by the grantor, the sole devisee, under the will, to secure a loan of $3,000, obtained from Mrs. Mary J. W. Waters, of Washington City, D. C. The property was conveyed to Walter R. Wilcox and Jackson H. Ralston of the District of Columbia as trustees, in and upon certain trnsts described and set out in the deed, and this deed was regularly and in due time recorded among the land records of Montgomery county. The appellants are the only heirs at law and next of kin of the testatrix, one a brother, and the other a nephew, the only surviving child of a predeceased brother, and were plaintiffs upon the trial of issues, sent by an order dated the 20th day of October, 1908 of the orphans' court of Montgomery county to the circuit court of that county upon a caveat filed by them to the will of Mrs. Gardner, which will devised the property here in question to the defendant and caveatee in the case. The trial of the issues on the 9th day of December, 1908, in the circuit court of Montgomery county resulted in findings for the defendant and caveatee on all four of the issues, transmitted for trial. These findings were duly certified back to the orphans' court, and on the 15th day of December, 1908, the will was admitted to probate in that court, as the true and genuine last will and testament of Sarah Annie Gardner, deceased.

A certified copy of the docket entries of the case in the circuit court of Montgomery county, is filed in these proceedings, and is as follows: "In the Circuit Court for Montgomery County. No. 62, Trials--November Term, 1908. William T. Houston and John O. Houston v. Henry Warmouth Houston. Transcript of record from the orphans' court of Montgomery county, filed November 5, 1908. December 9, 1908, submitted to the court for trial. December 9, 1908, the court find for the defendant on the first issue and on the second issue, on the third issue, and on the fourth issue. Costs in the circuit court for Montgomery county, $12.95."

A copy of the order of the orphans' court, admitting the will to probate upon the findings transmitted to it from the circuit court of Montgomery county, is set out in the record, and is as follows: "The court, after having carefully examined the above last will and testament of Sarah Annie Gardner, late of Montgomery county, deceased, and also the evidence adduced as to its validity, orders and decrees this 15th day of December, A. D. 1908, that the same be admitted to probate in this court as the true and genuine last will and testament of the said Sarah Annie Gardner, deceased. Geo. W. Meem, Remus R. Darby, John E. West."

The issues sent to be tried, and upon which the findings were had, were in the usual form, and related to the nonexecution of the will, mental capacity, and undue influence exercised upon the testatrix. There were no exceptions reserved at the trial of the case in the circuit court of Montgomery county, and no appeal from the findings of record in that court. Nor was there any appeal from the order of the orphans' court, admitting the will to probate in that court, or any objection whatever entered of record, within the statutory period of 30 days, as allowed by section 62 of article 5 of the Code. It is admitted that Mr. Robert B. Peter, an attorney at law of the Montgomery county bar, who filed the original petition and caveat in the orphans' court, was the duly authorized attorney of the caveators and plaintiffs in both courts, and his appearance was entered of record upon the authority of the plaintiffs, and his right to so appear as their attorney is not questioned by the appellants on this appeal.

Subsequently, on the 26th of October, 1909, nearly nine months after the execution of the deed of trust here in question, and more than ten months after the will had been probated, the appellants on the record filed a petition in the orphans' court of Montgomery county, wherein it was prayed that the findings of the circuit court of Montgomery county, on the 9th of December, 1908, and the order of the orphans' court, of the 15th of December, 1908, admitting the will to probate, be canceled and annulled, and the probate of the will be revoked. The petition alleged as a basis for the action of the court: First, that the findings of the issues had been obtained by fraud; secondly, that under the Constitution of the state the issues could not be tried by the court without the intervention of a jury; and thirdly, that at the trial of the case the appellant William T. Houston was absent from the state, did not know the case had been set for trial, and did not authorize his attorney of record to submit the issues for trial to the court, without the aid of a jury.

On the 28th of February, 1911, the order admitting the will to probate was set aside, and the orphans' court passed the following order: "A mass of testimony was taken in the case, and it was thoroughly argued by counsel on both sides, and the evidence and arguments have both been carefully considered. The facts in this case clearly show that there never was a trial of the issues sent by this court to the circuit court for trial, the whole proceedings were ex parte, and nothing more was done than usually takes place when a will is admitted to probate in common form. This being so, the court is of opinion that the order admitting the will to probate and granting letters testamentary should be set aside. It is thereupon this 28th day of February, A. D. 1911, by the orphans' court of Montgomery county, ordered and decreed that the judgment of this court rendered on the 15th day of December, A. D. 1908, admitting to probate the last will and testament of Sarah Annie Gardner, be and the same is hereby vacated, annulled, and stricken out. And it is further ordered and decreed that the letters testamentary granted to Henry Warmouth Houston be and the same are hereby annulled, canceled, and revoked. And it is further ordered that the petitioners and respondent each pay their respective costs."

Afterwards, upon the same caveat, issues identical in substance, and with the same caveators and caveatees, were transmitted to the circuit court for trial, and on the 24th of May, 1911, the case was tried before a jury in that court. The trial resulted in "findings" in favor of the caveators, on the issues transmitted by the orphans' court, and on August 8, 1911, that court refused to admit the will to probate, and declared it not to be the last will and testament of Mrs. Gardner. This brings us to the legal propositions raised by the pleadings, and discussed at the hearing, and in the briefs of the respective counsel of record.

The legal principles applicable to the case have been settled by numerous and recent decisions of this court, and it will not be necessary to review them, except as we may deem it proper in support of the conclusions reached, in the determination of the case.

In the first place it will be seen that the answer of the defendants specifically denies each and every allegation of fraud and bad faith, either actual or implied, made by the bill against them. No evidence whatever was adduced on the part of the appellants to connect the defendants in any manner with the fraudulent representations set up in the bill, and relied upon for relief in these proceedings. It is admitted "that the plaintiffs have no evidence that the defendants knew of the alleged fraudulent representations." The answer avers that the whole transaction was one made in the ordinary course of business in absolute good faith, and without any knowledge of any rights or claims of any person except the mortgagor and the owner of the property, under the will, to the property, or any interest therein; that they advanced their money and...