Stocksdale v. Jones

• Decision Date: 20 June 1918
• Docket Number: 31.
• Citation: 104 A. 416,133 Md. 176
• Parties: STOCKSDALE v. JONES et ux.
• Court: Maryland Court of Appeals

104 A. 416

133 Md. 176

STOCKSDALE v. JONES et ux.

No. 31.

Court of Appeals of Maryland

June 20, 1918

Appeal from Circuit Court, Carroll County; Robert Moss, Judge.

Suit by Ida F. Stocksdale, administratrix, against Thomas S. Jones and Frances S. Jones, his wife. From judgment for defendants plaintiff appeals. Affirmed.

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

Guy W Steele, of Westminster, for appellant.

Theo. F. Brown and F. Neal Parke, both of Westminster (Jno. Milton Reifsnider and Bond & Parke, all of Westminster, on the brief), for appellees.

BOYD C.J.

The appellant sued Thomas S. Jones and Frances S. Jones on the common counts. There was a demand for a bill of particulars, and one was filed as follows:

"To money loaned to defendants by plaintiff's intestate, to wit: On or about November 13, 1914, $500; on or about November 30, 1914, $1,800; and to interest thereon."

At a later term leave was granted the plaintiff to amend the bill of particulars, and an amended one was filed. In place of the language used above it read:

"To money received by the defendants from the plaintiff's intestate, to wit"

-and then follows the amounts as stated in the original bill of particulars. An exception was filed to that, which was sustained. The plaintiff then filed a second amended bill of particulars as follows:

"The defendants are indebted to the plaintiff for money had and received from the plaintiff's intestate for the use of the plaintiff's intestate, as follows."

The amounts and dates are the same as those set out above. Issue was joined on the general issue pleas and a plea of the statute of limitations, and the case proceeded to trial, but the plaintiff entered a non pros. as to Frances S. Jones. There are six bills of exception. The first five embrace rulings on evidence, and the sixth was to granting a prayer "that under the pleadings and evidence in this case there is no legally sufficient evidence to enable the plaintiff to recover, and the verdict of the jury must be for the defendant." That prayer was granted, and verdict rendered accordingly. From the judgment entered thereon this appeal was taken.

The first point relied on by the appellant is the ruling of the court on the exception to the amended bill of particulars. There can be no doubt about the correctness of that ruling. "To money received by the defendants from the plaintiff's intestate, to wit," etc., gave the defendants no information as to what the suit was about, or how it was claimed to have been received. It might have been a gift, a loan, or, as stated in Mueller v. Michaels, 101 Md. 188, 60 A. 485, in reference to the particulars there filed in a suit under the Practice Act ("for cash money received from the plaintiff in the month of June, 1904, by the defendants in the sum of $285.00"), "it may have been received in the payment of a debt due the defendants; it may have been paid to them under some mistake; it may have been received to be delivered to some third party; or it may have been received by the defendants as a stake to be held to abide the determination of some event. In what way the alleged indebtedness of the defendants arose out of the receipt of the money is left wholly a matter of speculation." In Cairnes v. Pelton, 103 Md. 40, 44, 63 A. 105, it is said:

"The office and legal effect of a bill of particulars is to inform the opposite party of the precise nature and extent of the claim which the plaintiff intends to rely upon under each and every count of the narr., and to confine his evidence to the claim thus stated."

That a bill of particulars ought to be specific, like an account filed under a Practice or Speedy Judgment Act, may at least be implied from section 24, subsection 107 of [104 A. 418] article 75 of the Code , as amended by the act of 1914, chapter 378.

The most important question in this case is presented by the first bill of exceptions, whether the record from the orphans' court of Carroll county was admissible in evidence. Jacob Webster Caple executed a last will and testament on September 14, 1914, and died November 10, 1915. On November 19, 1915, Ida F. Stocksdale, his only daughter, filed in the orphans' court a petition in which she said she had heard there was in existence a paper writing purporting to be his last will and testament, and asked the court not to probate it until she had a reasonable time for an examination of it and the preparation and filing of a formal caveat thereto. On November 22d Thomas S. Jones, the appellee, presented the will to the orphans' court, and declared that the instrument of writing was the true and whole last will and testament of said Caple; that he had found it among the private papers of the deceased, and did not know of any other will or codicil. On November 26th Mrs. Stocksdale filed a caveat, alleging testamentary incapacity, undue influence, fraud, and other grounds, and on November 30th a summons was issued for the devisees and legatees named in the will, including Frances S. and Thomas S. Jones, which was returnable December 14, 1915. All were returned summoned, and on December 14th the trustees of the Sandy Mount Methodist Protestant Church in Carroll County (to whom he had left $500 to be invested and the income to be used for the care of a lot in the church burying ground) and Lewis W. Caple, the executor named, appeared in open court and verbally declined to take any action in the matter. The others did not appear or answer.

The will left Mrs. Jones $500 "for her care and trouble in nursing me and my wife during her illness" and Thomas S. Jones $500" in consideration of his care and trouble in helping to nurse me and my wife during her illness, and also in caring for and feeding my stock." Item 3 is:

"And, whereas, the said Thomas S. Jones and Frances S. Jones, his wife, have promised to board, wash and iron and care for me during the balance of my life, I do hereby bequeath to them the sum of two hundred and fifty dollars ($250.00) for each and every year or proportionate part thereof, that they may so board, wash and iron and care for me, in the event that I have not already paid them in my lifetime, the sum to be paid in full payment for said board, washing and care."

By item (4) he left $500 to the trustees of Sandy Mount Methodist Protestant Church, as stated above, and he gave his daughter $5 "and no more" in item (5). By item (6) he left all the rest and residue of his estate to his two grandsons, Vernon W. Stocksdale and Howell Kelley Stocksdale, and he then appointed Lewis W. Caple his executor.

Nothing was done until May 9, 1916, when a summons for witnesses was issued returnable on May 12th, when the court heard testimony of witnesses produced on the part of the caveator. On May 26, 1916, the court met for the further consideration of the case, and passed a decree in which, after reciting the proceedings, amongst others that no party defendant had filed an answer, and, "the court being satisfied that at the time said paper writing was executed by the said Jacob Webster Caple he was not of sound and disposing mind and capable of executing a valid deed and contract, and that said paper writing is not the last will and testament of the said Jacob Webster Caple, deceased," the court "adjudged ordered, and decreed that the said Jacob Webster Caple died intestate, leaving as his next of kin and heir at law his only child, the petitioner, Ida F. Stocksdale, and that the probate of the said paper writing *** be and the same is hereby refused." This exception shows that at the trial of the case in the circuit court the plaintiff's attorney, in his opening statement to the jury, announced that "he proposed to show that during the lifetime of Jacob W. Caple the defendants, Thomas S. Jones and Frances S. Jones, obtained money from him while he was not capable of making a valid deed or contract, and that he would prove he was not capable of making a valid deed or contract by the records of the orphans' court for Carroll county." The plaintiff called the register of wills, who produced "the original papers in the matter of a caveat to the supposed will of Jacob Webster Caple, and a transcript of the docket entries in that case before the orphans' court of Carroll county," which included the petition of Ida F. Stocksdale, of November 19, 1915, the will and depositions of the subscribing witnesses, the caveat, the decree, and the docket entries. The first exception is thus worded:

"Whereupon objection was made to them being offered in evidence, whereupon counsel for the plaintiff made the following offer: These papers offered in evidence, with a transcript of the docket entries in the matter of the caveat of Ida F. Stocksdale to the last will and testament of Jacob Webster Caple, deceased, are

And the defendants renewed their objection to the introduction in evidence of said papers (but not on the ground that the original papers were offered and not a certified copy thereof), although coupled with the aforegoing offer of proof, and the court sustained their objections, and refused to allow said original papers and the transcript of the docket entries to be offered in evidence, to which ruling of the court the plaintiff excepted," etc.

Apparently it was intended to set out the papers and docket entries after the word "are" above, but, however that may be, no proffer to accompany or follow up the record from the orphans' court, with evidence as to the mental condition of the deceased at the time the checks were given, is disclosed in the record in this case. What was said in the opening statement of counsel cannot be said to be such proffer, although it does show the ground the appellant was relying on for...