Εικόνες σελίδας
PDF
Ηλεκτρ. έκδοση

(107 A.)

conferred by such article upon the expressed (appointed under the laws of New Jersey, and condition that it can be claimed only 'so far hence he could be removed, but the construcas the laws of each country will permit.'" tion placed on the Argentine Republic treaty In Estate of D'Adamo, 212 N, Y. 214, 106 was not in accord with Rocca v. Thompson. N. E. 81, L. R. A. 1915D, 373, decided in The cases of In re Wyman, 191 Mass. 276, 77 July, 1914, Judge Cardoza delivered a learn- N. E. 379, 114 Am. St. Rep. 601, and Cared and able opinion. Amongst other things, pigiani v. Hall, 172 Ala. 287, 55 South. 248, he said: Ann. Cas. 1913D, 651, are disapproved in In the Alabama case Rocca v. Thompson. the court said that the decision in Re Ghio, 157 Cal. 552, 108 Pac. 516, 37 L. R. A. (N. S.) 549, 137 Am. St. Rep. 145, "must be regarded as erroneous," but the Supreme Court in Rocca v. Thompson affirmed it. There is number of cases reported in the New York a note in Ann. Cas. 1913D, 655, in which a Supplement, also In re Wyman, supra, and one in the lower court of Ohio are referred to as in accord with the Alabama case, but the annotator adds:

"Considering, first of all, the mere words of the treaty, aside from extrinsic tokens of the purpose of the contracting parties, we find no expression of an intent that the consul's right to be administrator shall be exclusive, or that it shall supersede prior rights conferred by local law. 'So far as the laws of each country will permit,' the consul shall have the right, until

letters of administration are granted, to take charge of the property of the deceased for the benefit of lawful heirs and creditors. Plainly this right is subordinate to the authority of the states. But the words 'so far as the laws of each country will permit' may fairly be construed as qualifying the whole sentence. The consul is not merely to have the right of temporary intervention; he is to have, moreover,' the right, in case of need, to be appointed administrator. But both rights-the right of temporary intervention and the right of permanent administration granted in addition-are to be exercised only 'so far as the laws of each country will permit.''

The court then pointed out the strange consequences that would follow any other construction, and held that the treaty with Sweden did not give an exclusive right to the consul general, or other persons named, to administer.

In Estate of Servas, 169 Cal. 240, 146 Pac. 651, Ann. Cas. 1916D, 233, decided in 1915, it was held that the expression applies not only to the temporary possession which the foreign consul may take of the property, but qualifies his right to be appointed administrator. In the note to that case in Ann. Cas., supra, it is said:

"The trend of recent authority seems to be that the words 'so far as the laws of each country will permit' in the treaty with Sweden heretofore referred to exclude any intention of superseding state statutes, and that no paramount or exclusive right of administration is conferred on consular representatives by that treaty."

In Pagano v. Cerri, 93 Ohio St. 345, 112 N. E. 1037, L. R. A. 1917A, 486, decided in 1916, the same construction of that treaty was adopted in a full and able opinion. That case has been followed in several later cases in the Supreme Court of Ohio.

None of those cited by the appellant can be regarded as satisfactory authorities to the contrary of the views we have expressed. In Re Sinovcic's Estate, 80 N. J. Eq. 260, 86 Atl. 917, the court held that the administrator who had been appointed was illegally

[blocks in formation]

We might add that the decision in the Court of Appeals of New York, supra, overruled those made in the lower courts of that state, and the Ohio Supreme Court has settled the law for that state.

In our judgment, neither the consul general nor the appellant had a paramount or exclusive right to administer, and the lower court was correct in refusing to revoke the letters which had been issued to the appellee. We have not thought it necessary to discuss the question raised by the appellee, whether under our decisions the right of administration could be delegated by the consul general, inasmuch as we have reached the conclusion already announced as to him. As the treaty expressly states, "or, in his absence, the representative of such consul general, consul, vice consul general or vice consul," we would not have been inclined to hold that such representative could not have acted for the consul general, if we had thought the treaty with Sweden gave the latter the paramount and exclusive right to administer, as contended by the appellant. Nor have we thought it necessary or desirable to pass on the motion to dismiss the appeal, or to now determine other questions which have been raised or suggested, as what we have said is sufficient for the purposes of the case before us.

As the action of the consul general in appointing the appellant his representative, etc., doubtless was taken in the discharge of what he deemed to be his duty, we will direct the costs to be paid out of the estate.

Decree affirmed; the costs to be paid out. of the estate.

[blocks in formation]

The jury rendered a verdict for the defendants, and from the judgment entered

Appeal from Baltimore City Court; Chas. thereon in favor of the defendants the plainW. Heuisler, Judge.

Action by George C. Wegefarth against George F. Wiessner and others. Judgment for defendants, and plaintiff appeals. Af

firmed.

Argued before BOYD, C. J., and BRISCOE, BURKE, THOMAS, PATTISON, URNER, STOCKBRIDGE, and ADKINS, JJ. William L. Marbury and Edward M. Hammond, both of Baltimore (Albert S. Gill and William L. Rawls, both of Baltimore, on the brief), for appellant.

Albert C. Ritchie and Charles F. Harley, both of Baltimore (John M. Requardt, of Baltimore, on the brief), for appellees.

tiff has brought this appeal.

The record shows that the Brewing Company was founded by John F. Wiessner, who died leaving surviving him the following children, viz.: Frederick Wiessner, George F. Wiessner, Henry F. Wiessner, Elizabeth Ann Wiessner, who married Frederick W. Lipps, and Margaret Wiessner, who married the plaintiff in 1901. The capital stock of the Brewing Company consisted of 100 shares, and each of the above-mentioned children of John F. Wiessner owned 20 shares. The brewery, which was a highly successful and profitable business paying large dividends, was managed exclusively by the sons. It was regarded strictly as a family institution in which the children of its founder took a great deal of pride. Frederick Wiessner died intestate in 1907, and his 20 shares of stock were distributed in equal proportions among his two brothers and two sisters, thus making the holding of each 25 shares.

BURKE, J. This case has been twice argued in this court. A motion to dismiss the appeal was denied for the reasons stated in the opinion filed April 25, 1918, in the case of Wegefarth v. Wiessner and Others, 132 Md. 595, 106 Atl. 854, and a reargument of the case was ordered on July 10, 1918. In view of the length of the record, which is very voluminous, we shall confine our consideration to what appears to us to be the essential and determining facts in the case. The declaration contains four counts, and, in addition to the general issue pleas, the defendants set up pleas of accord and satisfaction, evidenced by releases under seal and other written documents by which it was intended that a compromise and settlement in full discharge of all mutual matters and litigation between the parties should be made. The pleas setting up the settlement were traversed by the plaintiff, and issue "In 1905 he organized the Evergreen Lawn was joined upon the traverse. Both the Land & Improvement Company, a company declaration and special pleas are lengthy, which was developing 25 acres at the corner of and we do not find it necessary to quote Hamilton avenue and Harford road in Hamil

At the time of the mariage of the plaintiff to Margaret Wiessner she owned stocks and bonds in her own right in excess of $100,000, in addition to her 20 shares of stock in the Brewing Company. This stock was very valuable, and her fortune was subsequently increased by the death of her brother, Frederick. The plaintiff was a practicing physician at the time of his marriage, but about the year 1905 he abandoned the practice of medicine and engaged in real estate development on quite a large and expensive scale. We here quote from his testimony as to the extent of his real estate operations:

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

ton.

(107 A.)

The stockholders in the Evergreen Lawn Land & Improvement Company were Frederick W. Lipps and his wife and witness' wife and himself; each owned one-fourth interest in the tract, in the company. That company engaged in very active real estate operations; the first year, I think they put up buildings to the extent of $100,000 or more, dwelling and stores and business property. It was a suburban development at Hamilton, on the Harford road and Hamilton avenue. That is about one mile outside of the city limits. Witness was president of the Evergreen Lawn Land & Improvement Company, Mr. Frederick W. Lipps was treasurer, and Mr. C. R. Wattenscheidt was secretary. Mr. Wattenscheidt is a nephew of Mr. Frederick W. Lipps.

"Witness then organized the City & Suburban Realty Company, which was composed of his wife and himself. We each held half interest. That company purchased 218 acres adjoining the Evergreen Lawn Land & Improvement Company at Hamilton and also 104 acres at Mt. Washington, and we were also engaged in the development of city property; we built twostory houses as well as suburban cottages. That the great expense of the City & Suburban Realty Company in the first year of its existence was the overhead charge. We had these large tracts of land, which had to be purchased a number of years before the time of development in order to get the land at a low enough figure to justify carrying it until the opportune time of development. Our expenses in that company were very heavy. The company was not very active for the first five or six years. Overhead charges were the interest charges, the taxes, the office expenses, the maintenance of the property and carrying it and a certain amount of help required to keep it in order. In this case we had to build our own water plant, drill artesian wells, and extend water mains and gas mains and all those details which are preliminary in the development of property. The money was gotten by the sale of the stock which my wife had, which stock was turned into money to pay for this property and for the carrying along of the overheads. The company did borrow money from banks. We borrowed from the Merchants' National Bank; the principal loan was from the Merchants' National Bank. The time we began borrowing was the time our dividends were cut from the brewery. In purchasing these large tracts of land we calculated on having this large income and we would have a surplus as the result of it, and our idea was to take that surplus and pay off on these tracts of land which we had purchased, and carry them along until the time came to market them to advantage. Instead of receiving the usual amount of dividends we were cut off. My wife had 20 shares of the J. F. Wiessner Brewing Company in 1905. In 1905 she received $20,000 dividend. The year before that she received about $19,000. She had been receiving dividends all along on this stock after our marriage, so far as I knew."

Mrs. Wegefarth died in May, 1912. The dividends on the stock were regularly paid to her during her life, and after her death to the plaintiff as her executor, until June, 1914, when the dividends were withheld, under the circumstances hereinafter stated. Mrs. Weg

efarth left a last will and testament, dated June 4, 1909, which was admitted to probate by the orphans' court of Baltimore city. By this will, after bequests of $33,000 to certain persons and charitable institutions, she devised and bequeathed all the rest and residue of her estate to her husband, and appointed him executor, and letters testamentary were duly issued to him by the orphans' court.

Aft

At the date of Mrs. Wegefarth's death, the City & Suburban Realty Company, which as we have seen was composed of the plaintiff and his wife, each holding a one-half interest, was indebted to the Merchants'-Mechanics' National Bank, which will be referred to hereafter in this opinion as the Bank, in the sum of $86,000. This indebtedness was evidenced by the note of the company, indorsed by the plaintiff and his wife and secured by the hypothecation of stock of the company and the 25 shares of the brewery stock owned by Mrs. Wegefarth. This stock then stood in her name upon the books of the Brewing Company and was deposited by her as collateral security for the note. er the death of Mrs. Wegefarth the plaintiff borrowed $34,500 additional from the Bank upon the understanding and agreement that the brewery stock should likewise be held as collateral for this as well as for the prior loan. So that at the time this controversy arose the plaintiff was indebted to the Bank in the sum of $120,500, for the payment of which the brewery stock was pledged. Dr. Wegefarth settled the estate in the orphans' court, and distributed this stock to himself as residuary legatee under his wife's will, and by an order of the orphans' court dated the 10th day of June, 1914, he was ordered as executor to cause to be transferred said 25 shares of stock to himself individually.

Frederick Wiessner had caused to be prepared a will by which his 20 shares of stock should pass upon his death to his brothers, George F. and Henry F. Wiessner, but had died without executing the will. The will was prepared in pursuance of an understanding between himself and his brothers that each should make a will bequeathing his stock to the survivors in order that they might have control of the affairs of the brewery. Both Henry and George made wills carrying out this arrangement. The death of Frederick intestate left his two brothers without owning a majority of the stock. They were evidently much dissappointed, although they made no complaint or claim during Mrs. Wegefarth's life for the 5 shares which passed to her upon Frederick's death. They regarded the concern as an exclusively family business to be managed and controlled by the family, and when they found that under the will of their sister the 5 shares had passed to Dr. Wegefarth, they took the position that, in view of the understanding

between themselves and their deceased brother, these 5 shares should be given to them, and thereby they would secure control of the business. There was, of course, no legal basis for this claim, but they seemed to think that under the circumstances they had some kind of a moral claim upon the stock. They asked Dr. Wegefarth to give them the 5 shares which his wife had gotten from the estate of her brother Frederick. This he refused to do. The 25 shares of stock owned by Mrs. Wegefarth were appraised at $75,000, and the final account of the plaintiff as executor appears to have been passed on March 13, 1914. In February, 1914, George and Henry Wiessner employed counsel with a view of filing a caveat to Mrs. Wegefarth's will.

that the Wiessners had refused to transfer the stock to him and were talking of contesting the will of his wife unless he would give up the 5 shares, and that he so informed the bank. Mr. Vernon Cook; the counsel for the plaintiff, wrote to the Wiessners asking that arrangements be made for the transfer of the stock. After sending that letter Mr. Requardt, representing the Wiessners, called upon him and said his clients disputed the validity of the will of Mrs. Wegefarth, and therefore they declined to transfer the stock. He also

"stated that 5 shares of the 25 which stood in from the estate of her deceased brother, Fred. the name of Margaret Wegefarth had come Wiessner, I believe was his name, and Mr. Requardt claimed that there had always been some family understanding about that stock to the effect that it was to go to the boys, as I recall, was his claim. He also, at the same interview, made a proposition of settlement. Do you want me to go into that?

"Q. Yes. A. Well he suggested, as I recall it, that the matter could be settled if Dr. Wegefarth would give up these 5 shares and if he would also give up any claim that he might have to a certain dwelling house where, I think, the Wiessners lived, that they would be willing to settle and compromise the matter in that way. "Q. Do you mean they would abandon the idea of attacking the will? A. Yes."

In April, 1914, at a meeting at the Hotel Rennert between the plaintiff and Henry F. Wiessner, the latter told the plaintiff that he was authorized by his brother George to offer him $75,000 for the 25 shares of stock. We quote from the plaintiff's evidence as to what was said when this offer was made: "I said, 'What is the stock worth?' He said he didn't know. I said, 'How much money have you got in bank?' He said, 'I don't know.' I said, 'What is the net profits of the business each year?' He said, 'He didn't know.' I said, 'It doesn't look very fair for me to sell you this stock for $75,000 and not have an idea of what it is worth.' I said, 'I will tell you what I will do.' I said, 'Suppose you go back to your brother and tell him that I have no objection to his buying the stock if they do not want me in the business; I am not anxious to stay in, but I will not lay anything in the way of remaining in it. You appoint a representative or an auditor and I will appoint one and we will take the third one for a referee and what-trial. On August 19, 1914, the Brewing Comever they say goes with me.' He said

"Q. Wait a minute, I do not quite understand that. You suggested to him that they should appoint an auditor? A. Yes.

books.

On June 1, 1914, George F. and Henry F. Wiessner filed the caveat to the will of Mrs. Wegefarth and an answer was filed by the plaintiff as executor, and on August 21, 1914, issues involving due execution, mental incapacity, fraud, and undue influence were transmitted to the court of common pleas for

pany brought suit against the plaintiff on a promissory note for $8,288 and interest. On June 5, 1914, the plaintiff demanded for the first time a statement of the affairs of the

corporation which it refused to furnish pend

"Q. For what purpose? A. To examine the "Q. The books of the J. F. Wiessner Brew-ing the caveat. Thereupon the plaintiff filed ing Company? A. Yes; to find out what the stock was worth.

"Q. And that you should appoint one and he appoint one and those two should select a third? A. Yes; to go over the books and to find out what the stock was worth.

"Q. What then? A. He says, "There is no use in going back; my brother is sore with you anyhow; he said you were out to the place most every day and you should have brought that stock out instead of sending it out by the lawyer.' I said, 'I have nothing to do with that.' I said, "That is the way I will sell the stock.' I said, 'Furthermore, you know that I am obligated more than that to the Merchants'

National Bank and even if I wanted to sell it for $75,000, I couldn't do it.' 'Well,' he said, 'he told me to give you until 12 o'clock Monday to accept that offer, or,' he said, 'it is fight.""

The plaintiff testified that Henry Wiessner knew at that time he had borrowed money from the bank upon the stock, and, further,

a petition for a mandamus to compel a statement and inspection of the books of the corporation. The defendants, whilst denying the plaintiff's right to a statement, did, however, on June 18th and June 20th, send two statements, and asked to have the petition "for mandamus dismissed, according to our understanding." In response to the letter of June 20th transmitting the second statement the counsel for the appellees received from Gans & Haman a letter dated June 22, 1914, in which they said:

"On going over with our client the figures which the company has submitted to us in reference to the matter, we find that they differ son to expect that he has determined to insist so widely from what Dr. Wegefarth had reaon his right as a stockholder to have an accountant make an examination of the books of the company. Opportunity to make such an examination was asked in our petition for mandamus. Will you let us know whether the com

(107 A.)

pany will consent to the making of such an examination? If not, we shall have to ask you to file your demurrer or answer in the mandamus case as promptly as possible, so that the rights of the respective parties may be determined by the court."

submit the sale of stock at this very low price by reason of his present poor condition of health, which renders it important for him to close up, so far as possible, his financial and business affairs for the time being. He is also actuated by a desire to facilitate the liquidation of the note held by your bank.

Thereafter the appellees filed their an- the reasons actuating him in offering the stock "It is important, therefore, in order to meet swer to the petition for mandamus. On the for sale, that the offer made should be promptly 12th of August, 1914, Dr. Wegefarth author- accepted. Will you therefore please explain to ized the bank to sell the stock for $150,000, the Messrs. Wiessner or their counsel, when you and the bank offered the stock to the Wiess- submit the offer, that it is not to remain open ners at that price. At that time the plain- indefinitely, but if accepted must be within a tiff was suffering from a severe nervous reasonably short time, say two or three days breakdown, and he put his affairs in charge after you have communicated it to them.

of his brother, Dr. Arthur Wegefarth, who went to the bank and threatened to file an injunction to prevent the sale of the stock for $150,000. Mr. W. Calvin Chesnut, representing the plaintiff, went to the Bank on August 15th and found the stock had been offered to the Wiessners for that sum, but that the offer had not been accepted. He induced the Bank to withdraw the offer.

The Bank on May 19, 1914, had renewed the plaintiff's note and by its terms it would have matured on September 19th, but under the power conferred by the collateral note it had the right to call for additional collateral, and if that was not furnished to declare the note due. On August 17th the Bank did demand additional collateral, but it was not furnished. No action, however, appears to have been taken under the demand.

On August 22, 1914, counsel for plaintiff wrote Mr. John B. Ramsay, vice president of the Bank, submitting the following offer of sale and settlement:

"August 22d, 1914.

"John B. Ramsay, Esq., Vice President, Merchants'-Mechanics' National Bank, South and Water Streets, City-Dear Mr. Ramsay: Pursuant to my conversation with you yesterday afternoon, I write on behalf of our client, Dr. George C. Wegefarth, to authorize you to offer twenty-five shares of stock of the Wiessner Brewing Company now held by your bank as collateral to the note of the City & Suburban Realty Company, and belonging to Dr. George C. Wegefarth, to the Messrs. Wiessner for sale for $165,000.

"When you submit this offer to the Messrs. Wiessner or their counsel, will you please advise them that it is a condition of the offer that the caveat case filed by them against Dr. Wegefarth should be dismissed, and, of course, upon the sale of the stock, the mandamus case heretofore filed by Dr. Wegefarth against them would also be dismissed.

"Pending the caveat, the Wiessners have withheld the payment of the customary semiannual dividend to Dr. Wegefarth. This, of course, should be paid to him now in addition to the principal purchase price of the stock.

"As you know, Dr. Wegefarth considers that the fair and reasonable value of this stock is very greatly indeed in excess of the price at which it is now offered for sale, and that a sale at this price will be a very great financial sacrifice for him to make. He is only impelled to

"E.

"Yours very truly,

[Signed] Calvin Chesnut."

[blocks in formation]

First. That the plaintiff agreed to sell to George F. and Henry F. Wiessner the said 25 shares of stock for the sum of $160,000 cash, and, in addition thereto and as a part of said purchase price, that the Wiessners should satisfy, pay, and discharge to the Brewing Company the indebtedness evidenced by the promissory note of the plaintiff for $8,288, upon which suit had been brought, and that said note should be surrendered to the plaintiff.

Second. That the caveat proceedings be dismissed, and that

George F. and Henry F. Wiessner "do hereby release and assign unto the said George C. Wegefarth any and all claims which they now have or claim to have against the estate of said Margaret Wegefarth, or the said George C. Wegefarth as executor thereof, or legatee under said will, and agree that said dismissal of said caveat and release and assignment of claim as herein mentioned shall be a perpetual bar to any future assertion of any claim of any character by them as next of kin, heirs at law, or distributees, in and to the assets of the estate of Margaret Wegefarth, and that no further caveat shall hereafter be filed by them against said will. The dismissal of said caveat case shall be made in such form and manner as counsel for the respective parties may advise to be most efficacious to legally and conclusively establish the validity of said will of the said Margaret Wegefarth, and preclude any future attack thereon by any one. The said George F. and Henry F. Wiessner agree to pay the costs of said caveat proceeding."

Third. That the petition for mandamus be dismissed, the costs to be paid by the petitioner.

Fourth. The dismissal of the suit upon the promissory note mentioned, and the surrender of said note as paid and canceled to the plaintiff herein; the Brewing Company to pay the costs.

Fifth. That the plaintiff should transfer

« ΠροηγούμενηΣυνέχεια »