Wright v. Gilbert

• Decision Date: 25 March 1879
• Parties: THOMAS WRIGHT, Executor of WILLIAM WRIGHT, deceased v. R. ELLEN GILBERT, Executrix of STEPHEN GILBERT, deceased.
• Court: Maryland Court of Appeals

51 Md. 146

THOMAS WRIGHT, Executor of WILLIAM WRIGHT, deceased v. R. ELLEN GILBERT, Executrix of STEPHEN GILBERT, deceased.

Court of Appeals of Maryland

March 25, 1879

APPEAL from the Circuit Court for Cecil County.

The case is stated in the opinion of the Court.

Exceptions.--At the trial the plaintiff offered the following prayers:

1. If the jury believe that the defendant's testator was indebted in his life-time to the plaintiff's testator, in the manner stated in the plaintiff's third count, and shall also believe that the plaintiff was appointed executor of said William Wright, deceased, and after the death of the said William Wright, and more than twelve years after the bill obligatory had been standing and in action, and more than twelve years after a cause of action thereon had accrued to the said William Wright, the defendant's testator promised to pay to the plaintiff, or to the person or persons holding the character of executors of said William Wright the sum of money mentioned in the certain writing obligatory specified in the third count of plaintiff's declaration and shall also believe that the said defendant's testator did not pay the same, and that the defendant has not paid the same since his death, that then the plaintiff is entitled to recover.

2. If the jury believe from the evidence that in his lifetime the defendant's testator was indebted to William Wright deceased, as stated in the third count of the plaintiff's declaration, and that after the death of the said William Wright, and more than twelve years after the cause of action on the said indebtedness first accrued to the said William Wright, acknowledged without qualification that he was indebted to the estate of said William Wright, then deceased, and to his executors, in the amount of money, with interest, due on the writing obligatory, which has been offered in evidence, and that at the time of such acknowledgment the plaintiff was executor of said William Wright, duly qualified and commissioned, that then the plaintiff is entitled to recover, unless the jury shall believe that the said defendant's testator paid the same, or that the defendant, as his executrix, has paid the same since his death.

And the defendant offered the following prayers:

1. That if the jury find that the note mentioned in plaintiff's declaration was of more than twelve years' standing, and that more than twelve years, after the same became due and payable, had elapsed before the institution of this suit, that then the plaintiff is not entitled to recover, unless the jury further find that the said Stephen Gilbert made a new promise to pay the money to plaintiff within three years before the commencement of this suit.

2. That there is no evidence in this cause sufficient and competent to prove that the defendant's testator, Stephen Gilbert, promised, after the death of plaintiff's testator, to pay to plaintiff the money for which this suit was instituted, or any part of it.

The Court (STUMP, J.,) rejected the plaintiff's prayers, and granted the defendant's prayers.

The plaintiff excepted, and the verdict and judgment being for the defendant, the plaintiff appealed.

The cause was argued before BARTOL, C.J., BOWIE, BRENT, MILLER and ALVEY, J., for the appellee, and submitted for the appellant.

Albert Constable and N. J. Biddle, for the appellant.

Henry B. Wirt, for the appellee.

BARTOL C.J., delivered the opinion of the Court.

William Wright, a citizen of Pennsylvania, held the single bill of Stephen Gilbert and William L. Gilbert, citizens of Maryland, for $100, dated December 9th, 1857, payable one year after date, with interest from date.

Endorsed upon the single bill are several credits, amounting in the aggregate to $60, the last one of which is dated February 11, 1867.

William Wright died in 1870, leaving a last will and testament, whereby he appointed his sons, Wilson Wright and Thomas Wright, executors, who assumed the trust, and entered upon the discharge of their duties as executors, under letters granted to them by the proper Court of Pennsylvania.

At the September Term of the Circuit Court for Cecil County, Thomas Wright and Wilson Wright, as executors, instituted an action of debt on the single bill against Stephen Gilbert and William L. Gilbert, the latter was returned """ non est," and the suit went on against Stephen, and was continued from term to term, till at September Term, 1876, issues being joined, a trial was begun. Before it was ended, a juror was withdrawn by leave of the Court and the cause continued. On the 18th day of June, 1877, defendant's death was suggested, and a summons issued for the appellee, his executrix, who appeared by attorney at September Term, 1877.

When on motion of plaintiffs' attorney, leave was granted to amend titling, narr., and writ, and on the 15th day of October, 1877, a declaration was filed in the name of Thomas Wright, administrator of William Wright, containing one count in debt on the single bill; to this the appellee pleaded the Statute of Limitations. Further proceedings were then had, which need not be particularly noticed. On the 19 th day of March, 1878, on motion of appellant's attorney, leave was granted to amend narr., and on the same day an amended narr. in assumpsit was filed in the name of Thomas Wright, administrator of William Wright. This declaration contained three counts. The first alleged a promise by the defendant's testator in his life-time, to pay the plaintiff $500, but states no consideration for the promise, and for that reason the first count is insufficient and sets out no legal cause of action. The second count was for money loaned by the plaintiff to the defendant's testator. The third count alleged the indebtedness of defendant's testator to plaintiff's testator upon the single bill, which is described, that the same had been standing more than twelve years, the death of William Wright and the appointment of plaintiff as his executor, and alleged that in consideration of the premises, the defendant's testator, within three years before the institution of this suit, promised the plaintiff to pay him the sum of money mentioned in the said bill obligatory, and alleges a breach of the promise, &c. Pleas were filed on the same day, replication and demurrer.

Up to this time no letters of administration on the estate of William Wright had been granted in Maryland. It appears by the record that these were granted by the Orphans' Court of Cecil County, to Thomas Wright, on the 20th day of March, 1878. On that day leave was granted to the plaintiff to withdraw replication and demurrer, and to amend narr., and on the same day an amended narr. was filed, in the same words as contained in the declaration, filed on the 19th, except that in this last amended narr. the plaintiff declares as executor of the last will of William Wright, deceased.

Upon this narr. the cause was tried, which resulted in a verdict and judgment in favor of the defendant, from which the plaintiff has brought this appeal.

Before noticing the several bills of exception taken by the plaintiff below, it is proper to remark that the proceedings in the cause appear to have been in many respects irregular.

The amendments allowed by the Circuit Court were, by no means, warranted by the provisions of the Code. The suit was instituted in the first instance by Thomas and Wilson Wright, in their capacity as executors of the last will of William Wright; their appointment and qualification were under a foreign will, and in virtue of letters testamentary granted by a Probate Court in Pennsylvania. Nothing is better settled than that such appointment and qualification had no extra-territorial effect, and conferred on them no right to maintain a suit in Maryland, upon a cause of action belonging to their testator. Glenn vs. Smith, 2 G. & J., 493; Kraft vs. Wickey, 4 G. & J., 340; Lucas vs. Byrne, 35 Md., 494; Barton vs. Higgins, 41 Md., 539.

To maintain such a suit it was necessary that the will should be proved and recorded in Maryland as provided by the Code, Art. 93, sec. 327, and that letters of administration thereon should be granted in this State, (sec. 75.)

By that proceeding the right to institute suit would devolve upon the party obtaining letters in Maryland.

In this case it appears from the record that letters of administration were not granted to the appellant by the Orphans' Court of Cecil County till the 20th day of March, 1878.

In the meantime the suit begun in September, 1875, had been continued in the name of the original parties plaintiffs. In October, 1877, by an amendment, Wilson Wright disappears from the cause, and Thomas, his co-plaintiff, declared as administrator, three months before letters of administration had been granted to him in Maryland, and consequently before he had capacity to sue. After letters were granted to him, could he rightfully be made sole plaintiff, in this new character and capacity, by an amendment in the original cause?

We think it very clear that he could not under the provisions of the Code. These are very broad and liberal, but they cannot be construed as allowing such a radical change of proceeding as was made in this case.

Art. 75, sec. 23, provides that any of the proceedings, including the writ or summons, may be amended. Writs may be amended from one form of action to another, and any amendment may be made before the jury retire, &c. But this general language is not to be understood without qualification.

Sec. 26 provides "if there be a non-joinder or misjoinder of plaintiffs, the Court may allow an amendment by which a plaintiff may be added or stricken out, as the case may require."

Sec. 29 provides "In amendments for...