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in clause 3, "intestate and without leaving is ficult to believe that he intended thereby to sue,” meant "intestate" as to the share of a limit the appointment to children who left child received from his or her father, but issue, as he knew those who remained sinaccording to their construction of the will a gle would not have issue. If he did so inchild who died “without leaving issue” could tend, the last part of that clause was wholly not make a valid will to affect that share, unnecessary, for he had ali ady provided and hence, if that be so, the word "intestate" for those leaving issue. It is more reasonin that connection would be meaningless and able to suppose that, instead of leaving the useless; for, if a child who died without leav- share of a child who had issue to all of his ing issue had no power to will his or her or her issue, he intended simply to provide share, why was it necessary to provide for a that it could go to such of the issue as his case in which one died “intestate and without child named by will, but, upon failure of leaving issue"? Does it not strongly imply the child to make a will, he provided by that the testator intended that some of his clause 2, wbere the share should go. Then, children might die testate, as to his or her

when he said "which appointment I hereby share, although not leaving issue? Of course, empower my children to make whether marthe testator could not control his children's ried or single,” he apparently intended to au- . disposition of their own property not receiv thorize all of his children, regardless of ed from or through him. They might die the question whether they were married or testate or intestate as to that, and, whether single, to make an appointment, which was they left issue or not, he could not direct how to be by last will “and for such estates and it should go. Nor did he attempt in any way

with such limitation as may be in such will to limit their disposition of property left

set forth," but did not name the class of perthem absolutely by his will, but the provi

sons for whom the appointment should be sions we are quoting and are considering

made. Then, in clause 3, he provided for only refer to the shares of the residue of his

those who died “intestate and without leavestate which he left in trust for his children

ing issue." It may be conceded that the during their lives, and provide for contingen

xpressio "which appointment,” would propcies that might happen with reference to

erly be construed to refer to the designa

tion of the class from which the appointees those shares. If the testator intended that in case any of his children died without leav

must be selected, as well as the method of

making it, character of estate, etc., if there ing issue the share of the one so dying must

was nothing to qualify it, or indicate a congo as provided for in clause 3, whether such child died testate or intestate, he could and

trary intention, but, when we find it used in

connection with language which must endoubtless would have said so, but he ex

large the appointinent beyond the restrictive pressly limited the disposition of a share by

language previously used, if given its plain that clause to the "one so dying"; that is to

and ordinary meaning, it ought not to be say, dying “intestate and without leaving

so limited. We must either strike out the issue,” and not merely to dying "without

words "whether married or single,” which leaving issue.” It would seem, therefore, to

judging from their position in the will must be quite certain that the testator did not in

have been deliberately inserted, or attribute tend a share to pass under that clause 3,

to the testator a degree of ignorance that the unless both of the conditions provided for by

record does not justify. Of course, he did him existed—that is to say, that such child

not for a moment suppose that a child who die "intestate and without leaving issue"

remained single would have issue, and, as and the implication is very strong that he in

only one of his children was married when tended that a child could die testate as to

he made his will, he must have known that such share, although not leaving issue.

the power to appoint for "such of his or her When we look to clause 1, what do we find?

issue" then only applied to one daughter. He first provided that one equal sixth part | Indeed, after a lapse of over 30 years from of the clear annual income be paid “to each

the date of the will, she alone can exercise of my children during life"-making no

the power of appointment, as construed by distinction between the married and the

the appellants, as she is the only child who single-and "from and after the death of

bas more than one child or descendant. It is my said children, I give, devise and bequeath

not reasonable to suppose he would have inthe share of my estate of the one so dying tended such a restrictive power; and, having

to such of his or her issue as he used expressions in clauses 1 and 3 which or she may by last will appoint,

clearly indicate that he did not, we must which appointment I hereby empower my give effect to them. If he had intended that children to make whether married or single." the share of each child who died without There was no necessity to give special pow| leaving issue should at all events go back into er to a married child to make the appoint- his estate for the benefit of his surviving ment, as even at common law a married wo children and the issue of deceased children, man could execute a power, and for many he could so easily have said so that the abyears she could make a will in this state. sence of such an expressed intention is a Nor was there any reason for specially au strong presumption that it did not exist. thorizing a single child to do so. It is dif Especially is that so when the omission of

the two words "intestate and" from clause of the properts by her will. In that case 3 would have accomplished it. But he in we had no question as to whom the will of serted them and now the appellants ask the testator authorized his wife to appoint. us to strike them out; at least that is the When that is determined, there is generally effect of their contention.

not much difficulty in deciding whether the The construction of the appellants would power has been properly exercised, but in cause an intestacy as to each share held by this case we are called upon to determine children who die without leaving issue. whether one of the testator's children who It not only makes the testator say what shall had no issue could under the provisions of be done if any of them die intestate, as to the will make an appointment—in other their respective shares, and without leaving words, the question here is whether Mrs. issue, but that all such shall die intestate Turnbull, having no issue, had the power to in respect thereof, although he said he em appoint any one, while in Smith v. Hardesty powered his children whether married or it was whether the widow had the power to single to make an appointment, and provided appoint those she did appoint. If we had for what should be done when any died concluded that the testator only intended to "intestate and without leaving issue" with give each child power to appoint one or such particularity as to necessarily imply more of his or her issue, of course, the will that he intended that those who did not of Mrs. Turnbull would not have been a good leave issue might make wills affecting their execution of the power, but having concludrespective shares. We are therefore of the ed that such was not his intention, but that opinion that by a proper construction of the he meant that his children who had no issue whole will of Mrs. Turnbull, or any child could make an appointment by will, it must similarly situated (not leaving issue), could be conceded that, if we are right in that make a valid will leaving her share to such conclusion, there was a general power of person or persons as she therein named. appointment given to such of his children, Whether or not a cbild having issue could and it was not attempted to be limited, as leave her share to any one other than of was done in Smith v. Hardesty, to a particuher issue is not involved in this case, but we lar class. have no doubt that she could leave it to one Without discussing other authorities, as or more of such issue, where there are more we have found none which were of assistthan one.

ance in enabling us to reach a conclusion as We do not deem the authorities cited by to what was the intention of the testator appellants to be at all in conflict with this beyond those announcing general principles conclusion. The case of Smith v. Hardesty, applicable to wills, we will affirm the decree; 88 Md. 387, 41 Atl. 788, so much relied on, but will direct the costs to be paid by the does not seem to us to in any way control the trustee out of the corpus of the estate passconstruction of this will. There the power ing under the will of Mrs. Turnbull, inasgiven the wife of the testator was "to de much as it was proper to have the question vise the same at her death, to my children determined by the court. or either of them, in such manner as she Decree affirmed, the costs to be paid by may deem best.” The testator had given the trustee out of the corpus of the estate, all of his property to his wife, during her passing under the will of Sophia G. C. Turnlife, with power to sell and dispose of it as

bull. she might desire, and to exercise all rights of ownership over it without impeachment of

(105 Md. 871) waste, as fully as if it belonged to her in iee simple. Then followed the power to

BOGGS V. INTER-AMERICAN MINING & devise it above quoted, and the testator then

SMELTING CO. continued, “At the death of my wife, I give, INTER-AMERICAN MINING & SMELTbequeath and devise to my two children, all

ING CO. V. BOGGS. of my property that may remain undisposed (Court of Appeals of Maryland. April 2, 1907.) of by my wife at the time of her death, or

1. PROCESS-SERVICE-SUFFICIENCY. which she may not dispose of by last will Where a director of a corporation knew of and testament or otherwise"; and mentioned

the institution of a suit against it and of the bis two children by name. The widow of

sheriff's desire to summon it by serving process

on him as a director, and that a deputy was the testator made a will leaving $200 to her about to make that service, he could not defeat sister, to be paid out of the proceeds of crops service by running out of the room and slamraised on a farm which had belonged to the

ming a door in the officer's face. testator, and then left the farm subject to

[Ed. Note.-For cases in point, see Cent. Dis.

vol. 40, Process, $$ 76–82.] a charge of the $200 to a granddaughter.

2. CORPORATIONS We held that the widow only had a life es

FOREIGN PROCESS

REMOVAL OF OFFICE FROM STATE. tate in the property with a power of dis Under the express provisions of Code Pub position of the reversion, and that the power Gen. Laws, art. 23, 88 409-412, where a for: to devise was expressly limited to one or eign corporation went into a state, transacted both of the testator's two children, and, al

business, and incurred a liability therein, the

courts of that state acquired jurisdiction of a though both of them were then dead, the wid

suit on that liability by service of process on ow bad no power to make other disposition a resident director, though the corporation had

removed its office from, and ceased to do busi eral business was transacted, was in the Calness in, the state before the suit was brought.

vert Building, in Baltimore, and during that (Ed. Note.-For cases in point, see Cent. Dig.

time H. C. Turnbull, Jr., who did business vol. 12, Corporations, 88 2603-2626.]

in Baltimore City and resided in Baltimore 3. JUDGMENT-VACATION-GROUNDS. Where a court acquires jurisdiction of the

county, was president of the corporation. subject-matter and the parties of a suit, when

During the time that the company was thus the provisions of the rule day acts have been located in Baltimore City, its president, purconformed to, and judgment regularly entered porting to act in its behalf, employed the thereunder, it will not be stricken out on motion of the defendant, unless some reason be

plaintiff, Boggs, as a mining engineer at a shown why the defendant was prevented from

salary of $200 per month and personal and appearing and defending in accordance with the traveling expenses. On May 28, 1906, Boggs statute or upon some ground of fraud, surprise, sued the company in the superior court to reor mistake; and, when the motion to set aside is made after the term at which it was rendered,

cover his salary and expenses for October, proof of fraud, surprise, or mistake must be

November, and December, 1905, and Janclear and convincing.

uary, 1906, amounting in the aggregate to (Ed. Note.-For cases in point, see Cent. Dig. $1,188. The suit was brougbt under and in vol. 30, Judgment, 88 264, 269–284.]

conformity to the rule day acts in force in 4. APPEAL ORDERS APPEALABLE — REFUSAL Baltimore City, and the defendant having TO REQUIRE SECURITY FOB Costs. Appeal will not lie from an order refusing

been returned summoned, and having failed to require a nonresident plaintiff to furnish se

to appear to the action or plead, judgment curity for costs; it being not final in its nature, by default was entered against it on June nor settling any substantial right of the defend 27, 1906. On the same day the judgment ant, nor denying the means of further defending the suit.

by default was duly extended for $1,188 and [Ed. Note.-For cases in point, see Cent. Dig.

costs. On October 17, 1906, the company apvol. 2, Appeal and Error, $8 641, 823.]

peared by counsel, and moved to strike out 5. Costs—SECURITY FOR COSTS-APPLICATION.

the judgment on two grounds: (1) That it, The record on appeal from an order refus being a foreign corporation, was never serving to require plaintiff, alleged to be a nonresi. ed with summons within the meaning of the dent, to give security for costs insufficiently showed his nonresidence, though the application

Maryland statutes, and was therefore not for the rule for security so stated; the applica

properly in court when the judgment was tion having been made ex parte, and having not rendered, and (2) that it was not amenable been sworn to nor accompanied by admission, to this suit in the state of Maryland, and the affidavit, or proof of such nonresidence. [Ed. Note.-For cases in point, see Cent. Dig.

judgment and all of the proceedings are void vol. 13, Costs, 88 462, 471.]

for want of jurisdiction. At the hearing of

the motion to strike out the judgment, testiAppeals from Superior Court of Baltimore

mony was taken tending to prove that on City; Henry Stockbridge, Judge.

March 7, 1906 the company moved its office Action by William R. Boggs against Inter and papers and seal from Baltimore to East American Mining & Smelting Company. Orange, N. J., and thereafter did not conduct From an order striking out upon terms of any business in Maryland, and that Wm. R. final judgment in his favor, plaintiff appeals; Sweeney was selected president of the comand from an order refusing to lay a rule

pany to succeed Mr. Turnbull, although the security for costs upon plaintiff, defendant

latter remained, and at the time of the inappeals. Order striking out judgment revers stitution of the suit was, one of its directors. ed. Defendant's appeal dismissed.

P. M. Gover, a deputy sheriff of Baltimore Argued before BRISCOE, SCHMUCKER,

City, then testified that, having been direct. BOYD, PEARCE, BURKE, and ROGERS, JJ. ed to serve the writ in the case upon Mr.

Stewart Janney, for plaintiff. Joseph N. Turnbull, he went over to the Calvert BuildUlman, for defendant.

ing, and asked Turnbull if he was one of the

officers of the company, and he replied that SCHMUCKER, J. The first of the cross he was not, but had formerly been its presiappeads in this case is by William R. Boggs,

dent. To the best of witness' recollection, the plaintiff below, from an order of the Turnbull said that he knew the plaintiff, superior court of Baltimore City striking out

Boggs, and would like to see him get what upon terms of final judgment theretofore ren was due him. The deputy reported this indered in his favor against the Inter-Ameri terview to the sheriff, who told him to serve can Mining & Smelting Company. The sec the writ on Turnbull, as he was one of the ond is by the said company, the defendant directors, and the deputy went back to do it; below, from an order of the same court, re

but Turnbull shut the door in his face, and fusing upon its application to lay a rule

would not let him serve it. The deputy security for costs upon the plaintiff, who further swore that he explained his object was alleged to be a nonresident of this state. to Mr. Turnbull, and the latter saw the writ, The two appeals were heard together and and said he was doing what he could to get they can be disposed of by one opinion. Mr. Boggs righted in the matter, or some

The mining company was incorporated in thing to that effect. He, the deputy, did not the District of Columbia; but for some time read the writ to Mr. Turnbull, but he exprior to March 7, 1906, its office, where its plained it to him, and Turnbull looked at the records were kept and from which its gen writ. Thatcher Bell, another deputy sheriff,

testified that he was told by the sheriff to go although it is usual for him to read it or exover to the Calvert Building and serve the plain its nature and leave a copy of it with writ on Mr. Turnbull; that Gover had not the person served. Sections 409 to 412 of been able to get a service. Witness went article 23 of the Code of Public General Laws over to Turnbull's office with the copies provide for service of process upon corporaready to serve, and said to Turnbull, “I have tions. Section 409 provides that any fora paper to serve on you.” Turnbull said, “I eign corporation which shall transact busiknow wbat you have," and started to go out. ness in this state "shall be deemed to exerWitness reached for Turnbull with the cise franchises" here, and "shall be liable to copies, and, when the latter kept running, he suit in any of the courts of this state on any commenced to read them, but Turnbull got dealings or transactions therein." Section into the next room and slammed the door.

410 authorized process against a domestic Witness then laid the copies on the table and

corporation to be served on any president, returned to the sheriff's office. He left the

director, etc. Section 411 provides that suit copies of the narr., notice to plead, and writ

may be brought in any court in this state in this case on the table in Turnbull's office.

against any foreign corporation “deemed to Mr. Turnbull was put on the stand, and his

hold and exercise franchises in this state," account then given of the visits of the two

by a resident of this state on any cause of deputy sheriffs to him substantially corrobor

action, and by a nonresident plaintiff when ated their testimony, except he denied that

the cause of action has arisen in this state, he said to the deputy Bell that he knew what

and that process in such suits may be served he had, or that he (Turnbull) saw or looked

as provided in section 410, or it may be at the writ. There was also evidence tend

served, in the manner prescribed, upon any ing to show that Mr. Turnbull never reported the service of the writ on him to the com

agent of such corporation. Section 412 pro

vides that if any corporation, embraced in the pany, or took any steps himself looking to a

preceding section, after any liability shall defense of the action, and that the motion

occur within this state, or after any conhad been promptly made by the company

tract shall have been made by it with any when it learned of the suit and judgment.

resident of this state, shall cease to have Assuming that Turnbull was a proper per

any agent within the state, and no president, son upon whom to serve the writ and other

director, or manager of the corporation can papers, we are indisposed to consume much

be found within the state, then, in such case, time in discussing the sufficiency of the service. It is apparent from the evidence that

service of any writ or process from the courts Turnbull was fully informed as to the in

of this state may be had on the person who stitution of the suit by Boggs against the

was last the agent of such corporation; and company and the desire of the sheriff to sum

the statute in such case further provides for mon the company by serving the papers on

the service of copies on the officers of the him as one of its directors, and knew that company, wherever they may be found, in the deputy was about to make that service cases where the writ has been served on the when he attempted to elude him and evade last agent. These sections, when properly the service by running out of the room and

construed together, provide, among other slamming the door in the officer's face. Nei things, that where any corporation, domestic ther be nor the company he represented, it or foreign, shall, wbile transacting business he did represent it for the purpose of the in this state, incur a liability here or make service, can be permitted to set up such a a contract with any resident of this state state of facts in support of the motion to and shall thereafter cease to have an agent strike out the judgment. He might as well here, service of any writ or process issuing have remained in his office and put his from the courts of this state, in respect to fingers in his ears while the deputy read the such liability on contract, may be made writ to him, and then claimed to be without upon the president or any director or maninformation as to its contents or purpose. ager of the corporation, if he can be found in Defendants have frequently sought to evade this state. In other words, that, if a foreign or defeat service of process upon them by corporation comes here and transacts busiflight or refusal to accept the process handed ness and incurs liabilities here, it shall be them by the serving officer, but the courts quoad those liabilities remain subject to the have held such efforts futile. Davison v. Bak- jurisdictions of our courts, even though after er, 24 How. Prac. (N. Y.) 42; Slaght v. Rob incurring the liabilities it may have removed bins, 13 N. J. Law, 340; Borden v. Borden, 63 its office and business to another state. With Wis. 377, 23 N. W. 673; Baker v. Carleton, these laws upon our statute book staring it 32 Me. 334.

in the face, the defendant came here and The laws of this state do not prescribe transacted business, and in the course of precisely how a summons shall be served that business incurred the liability for the upon an individual defendant. The service enforcement of which the present suit was irmust be a personal one (2 Poe, Pleading & stituted. It cannot now be heard to say to Practice, par. 62); but the sheriff is not re the courts of this state that no jurisdiction quired to read the writ to the defendant, for the purposes of this suit was acquired

over it, by service of process according to

(105 M4, 826) our laws upon one of its directors residing REILLY et al. V. BRISTOW et al. within this state, because since incurring (Court of Appeals of Maryland. April 2, 1907.) the liability it has removed its office to an

1. WILLS-NATURE OF ESTATES CREATED. other state. “If a state permits a foreign Testator made a gift to a son and two corporation to do business within her limits, daughters, and provided that on the death of the and at the same time provides that in suits

survivor of them the property should then be

divided between “the children the lawful heirs against it for business there done process of my aforesaid children.” Held, that the rule shall be served upon its agents, the provi in Shelley's Case was inapplicable, and testasion is to be deemed a condition of the per

tor's children did not take a life estate in posses

sion and an inheritance in remainder. mission, and corporations that subsequently

[Ed. Note.-For cases in point, see Cent. Dig. do business in the state are to be deemed to

vol. 49, Wills, 88 1372-1374, 1377.] assent to such condition as fully as though

2. SAME-CONTINGENT ESTATES. they had specially authorized their agents A testator made a gift to his son and two to receive service of the process.” St. Clair v. daughters, and declared that, on the death of Cox, 106 U. S. 350, 1 Sup. Ct. 354, 27 L. Ed.

the last survivor of them, the property should

be divided between "the children the lawful 222. The court below in our opinion ac heirs of my aforesaid children." Held, that the quired jurisdiction over the defendant in this gift to the grandcbildren was a contingent resuit by the service of the process upon its

mainder, which could not become vested unless resident director Mr. Turnbull.

there were living at the time of the death of

the last surviving child of the testator children In cases where the court has jurisdiction of the testator's three children. of the subject-matter and the parties, "when [Ed. Note.-For cases in point, see Cent. Dig. the provisions of the rule day acts have been vol. 49, Wills, 88 1488, 1495, 1498–1499, 1502, conformed to, and a judgment regularly en

1503.) tered thereunder, it will not be stricken out Appeal from Circuit Court No. 2 of Balti. upon motion of the defendant, unless some more City; Pere L. Wickes, Judge. reason be shown why the defendant was Bill of interpleader against Helen J. G. prevented from appearing and making de Reilly and another and William H. Bristow, fense in accordance with the requirements executor of Frederick H. Griffin, deceased, of the statute or upon some ground of fraud, and others, for the construction of the will of surprise, or mistake.” Mueller v. Michaels, John A. Griffin, deceased. From a decree con101 Md. 191, 60 Atl. 485; Griffith v. Adams, struing the will, Helen J. G. Reilly and anoth95 Md. 170, 52 Atl. 66; Coulbourn v. Boulton, er appeal. Affirmed. 100 Md. 350, 59 Atl. 711; Gemmell v. Davis, Argued before BRISCOE, BOYD, PEARCE, 71 Md. 458, 18 Atl. 955. When, as in the SCHMUCKER, BURKE, and ROGERS, JJ. present case, a motion to set aside a judgment

Michael A. Mullin, for appellants. Albert is made after the term at which it was ren

C. Ritchie, for appellees. dered, the proof of fraud, surprise, or mistake must be clear and convincing. Abell v.

PEARCE, J. This case involves the conSimon, 49 Md. 318; Smith v. Black, 51 Md.

struction of the will of John A. Griffin, of 247; Siewerd v. Farnen, 71 Md. 627, 18 Atl.

Philadelphia, Pa., who died in September, 98. There being an absence from the rec

1902. ord before us of proof of any of the grounds

The clause here in question is as follows, whose existence is essential to warrant the

the punctuation being exactly as it appears vacating of the judgment, the learned judge

in the record, and that being, as we are inbelow erred in passing the order striking it

formed by counsel, just as it appears on the out, and that order must be reversed.

original will: "I give, devise, bequeath and The appeal from the order refusing to re

desire that all the dividends, interest, rents quire the plaintiff to furnish security for

and net income derived from my aforesaid costs must be dismissed. That order was not

estate or property shall go to and be divided final in its nature, nor did it settle any sub

equally between my son Frederic Hintze stantial right of the appellant or deny to it

Griffin and my daughter Annie Hintze Griffin the means of further defending the suit. Git

until my daughter Helen Julia Griffin Reilly tings v. State, 33 Md. 461; Chappell v. Funk, wife of Colonel James William Reilly, United 57 Md. 479. Furthermore, it does not ap States Army, becomes a widow, whenever my pear from the record that the plaintiff is in

said daughter Helen Julia Griffin Reilly befact a nonresident of the state. It is so

comes a widow then in that case all the said stated in the application for the rule for

dividends, interest, rents and net income desecurity for costs, but the application was rived from my aforesaid estate or property made ex parte, and was not sworn to nor ac to be divided equally between my son Fredcompanied by admission, affidavit, or proof eric Hintze Griffin my daughter Annie Hintze of the fact of his alleged nonresidence. Griffin and my daughter Helen Julia Griffin

Order striking out the judgment reversed, Reilly if either my son Frederic Hintze Grifwith costs. Appeal from the order refusing fin or my daughter Annie Hintze Griffin die to lay rule security for costs dismissed, with then in that case all the said dividends, incosts.

terest, rents and net income derived from my

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