lifetime of the testator, letters of administration c. t. a. upon his estate were granted to his widow, Sallie C. Bantz, the present appellee, by the orphans' court when the will was admitted to probate in common form. The administratrix c. t. a. filed an answer to the caveat setting up a want of jurisdiction in the orphans' court to determine the questions presented by it, and further averring that, when it was filed, she had already completed the administration of the personal estate of the testator in the orphans' court and passed over the net balance thereof to Hon. Wm. Pinkney Whyte, who had been appointed trustee, in lieu of those named in the will to execute the trusts thereof by the circuit court of Baltimore city in a suit instituted for that purpose, to which all persons interested in the estate, including the appellant, were made parties, and that the appellant had by its answer filed in that suit neither admitted nor denied the allegations of the bill, but submitted its rights to the determination of the circuit court. To this answer the appellant demurred.

The orphans' court, after hearing the case, filed the order appealed from dismissing the caveat, "for the reason that at the time of admitting the will to probate the court did establish the text of the will as it appeared then, and as to the determining and establishing any rights that might arise under said will it is beyond the court's jurisdiction." That order was signed by two of the three judges of the orphans' court. The other judge filed a dissenting opinion, holding that the matters alleged in the caveat related to the factum of the will, and were therefore within the jurisdiction of the court, and that the administratrix should be required to answer the caveat. We think the orphans' court erred in passing the order appealed from. The will having been admitted to probate without contest in the form in which it then appeared, any one who would have an interest in the estate if that probate were revoked and a new one granted of the will in its original condition was entitled to file a caveat to it within three years thereafter, even though letters of administration had been issued upon the personal estate. Code 1904, art. 93, §§ 318, 341; Levy v. Levy, 28 Md. 25. The appellant had such an interest in the estate as to authorize it to file its caveat for it will be entitled to all of the property passing under the residuary clause of the will if it be admitted to probate in its original form. The allegations of the caveat present for determination the inquiry whether the lines referred to were put upon the will by the testator or under his direction, and, if so, whether he thereby intended to revoke the portions of it over which they were drawn. Even the cancellation of the signature to a will is an equivocal act, and does not amount to a revocation unless done animo revocandi. Semmes v. Semmes, 7 Har. & J. 388; Rhodes v. Vinson, 9 Gill,

169, 52 Am. Dec. 685; Colvin v. Warford, 20 Md. 393. If the foregoing inquiries be answered in the affirmative, the further question of the testamentary capacity of the testator at the time the lines were drawn is raised by the caveat. All of these questions relate to the factum of the will-i. e., the making of the instrument-and therefore concern its probate, and not its construction, and fall within the jurisdiction of the orphans' court, which, under our testamentary system, has exclusive jurisdiction in granting or refusing the probate of wills. Johns v. Hodges, 62 Md. 525.

The question here presented is whether the lines do or do not constitute part of the will; and it is entirely distinct from that of the force and effect of erasures, interlineations, or alterations confessedly made by the testator appearing in a will whose text has been established, as was the case in Eschbach v. Collins, 61 Md. 478, 48 Am. Rep. 123, and Ramsay v. Welby, 63 Md. 584. The lastmentioned case, which was much relied upon by the appellee, resembles the present case in some respects, but upon close examination is plainly distinguishable from it. In Ramsay's Case the interlineations and erasures, some in ink and others in lead pencil, appearing upon the will, which had been admitted to probate in common form, were confessedly made by the testatrix, whose testamentary capacity at the time of making them was not challenged. No caveat was filed to the will in that case, but certain parties interested in the estate filed a petition in the orphans' court averring that the changes in the will made in lead pencil were not to be considered as operative, and setting forth certain constructions of particular provisions of the will as the true and legal effect of the same, and praying that the true text of the will might be ascertained and declared, and the bequest in their favor secured to them. The respondent there in her answer set up the want of jurisdiction in the orphans' court to adjudicate the questions raised by the petition. The orphans' court adopted the respondent's view, and dismissed the petition, and this court, upon an appeal affirmed the order of dismissal. This court affirmed that case solely upon the ground that the questions there raised by the petition did not relate to the mere factum of the will, or whether the changes in it had been inserted by the testator, but related to the legal construction of its provisions, over which the orphans' court clearly had no jurisdiction. Our predecessors in that case said (at page 586 of 63 Md.): “In the probate nothing is to be determined but what relates to the mere factum of the will. What is the legal effect of its provisions is not involved in that proceeding. Undoubtedly any clause or portion of the paper writing propounded as a will may be rejected if it appears it was not inserted by the testator, or that he had re voked it, or that it was not embraced by the

execution. Such facts go to the actual making of the instrument; but all that is embodied in the paper writing executed by a testator as an integral part of his intended testamentary disposition is to be accepted by the orphans' court as entering into his will. The validity and legal construction of the provisions are matters for subsequent determination by the appropriate tribunals. What was in fact admitted to probate as constituting the last will of Susan M. Shield, as set out in the order of probate, and as declared by the orphans' court when dismissing the petition was the paper writing propounded, as made and left by her as her will, with all the additions, alterations, and erasures appearing therein whether made in ink or pencil. To the extent any of these changes were involved in the mere question of the factum of the will they were open to contest by the parties interested, and might have been raised by appellants in plenary proceedings. But the prayer of the petition is confined to no such simple issue. It calls on the orphans' court to declare the true text of the will not in the sense of merely reciting or setting out what words are actually or legibly apparent and unerased in the will (that the court had already in effect done), but to determine the operation of the will in a legal sense as derivable from construction; such construction embracing the effect to be given the alterations, additions, and erasures with reference to the original text, and to be given to the fact of part of the substituted or added writing being in pencil and the question of how far such changes were contingent or absolute, and from such construction to ascertain and declare the rights and interests of the appellant to certain bequests as operative in law. It is well settled the orphans' courts are clothed with no such jurisdiction. Questions of the nature described can only be determined in the courts of law or equity."

It is obvious from what was there said that the views expressed by the court in that case are in entire harmony with the conclusion at which we have arrived in the present one. Nor do we think that the appearance and answer of the appellant to the case instituted in the circuit court, for the appointment of a new trustee and the administration of the trusts of the will under the supervision of that court, estopped it from filing or prosecuting the present caveat. The trusts of the will relate only to the life estate of the testator's widow. The portions of the will creating the equitable life estate of the widow and appointing trustees to hold and manage the estate for her benefit during her life are not assailed by the caveat which asserts the validity of the entire instrument when restored to its alleged original condition with the lines referred to removed from its face. The orphans' court, instead of dismissing the caveat, should have required the appellee to answer it and allowed the case to proceed in the usual manner. If the proceedings up

on the caveat result in a revocation of the former probate and the granting of a new one, she will be protected for acts done in due course under the letters of administration c. t. a. heretofore granted to her upon the will as admitted to probate in common form.

The order appealed from must be reversed, and the case remanded for further proceedings in accordance with the views herein expressed.

Order reversed, with costs to be paid out of the estate, and cause remanded.

(106 Md. 54)

COYNE et al. v. SUPREME CONCLAVE OF IMPROVED ORDER OF HEPTASOPHS et al.

(Court of Appeals of Maryland. May 15, 1907.) TRUSTS-ORAL TRUSTS-VALIDITY.

Where a member of a mutual benefit association has a new certificate issued in favor of M., under a parol agreement that the latter shall pay the proceeds to B., for the support and maintenance of the member's minor children, a trust was created in favor of the minor children which attached to the proceeds of the death benefit certificate when paid to M.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 47, Trusts, §§ 15-24.]

Appeal from Circuit Court No. 2 of Baltimore City; Pere L. Wickes, Judge.

Suit by Richard M. Coyne and others against the Supreme Conclave of the Improved Order of Heptasophs and others. From an order sustaining a demurrer to the bill of complaint and dismissing the bill, complainants appeal. Reversed and remanded.

Argued before BOYD, PEARCE, BURKE, SCHMUCKER, and ROGERS, JJ.

Emil Budnitz and J. Cookman Boyd, for appellants. W. Browne Hammond (Olin Bryan, on the brief), for appellees.

BURKE, J. This record brings up for review the propriety of an order of the circuit court No. 2 of Baltimore City, by which a demurrer to the bill of complaint in this case was sustained, and the bill dismissed. The facts are: That Edward Coyne, the fatherof Richard M. Coyne, Raymond W. Coyne, and Robert H. Coyne, infants, was a member of the J. F. Wiessner Conclave No. 458 of the Improved Order of Heptasophs. That, by reason of his membership in that conclave, he was entitled to a death benefit certificate in the Supreme Conclave of the Improved Order of Heptasophs, which certificate was duly issued to and accepted by him on June 25, 1900. That the certificate was payable to Annie M. Coyne, his wife, who was designated as beneficiary, and by which certificate the defendant, the Supreme Conclave of the Improved Order of Heptasophs, promised and bound itself to pay out of its benefit fund to Annie M. Coyne the sum of $1,000 within 60 days from the receipt of satisfactory proof of the death of the said Edward Coyne. Annie M. Coyne died in the lifetime of her husband, and he, in accord

ance with the constitution and by-laws of the Supreme Conclave of the Improved Order of Heptasophs, created a change in the beneficiary under the certificate by surrendering the same, and having a new certificate issued, in which the defendant, Margaret Coyne, was named as beneficiary. Although Margaret Coyne was designated as the beneficiary under the new certificate without any qualifi cation upon the face thereof, it was understood and agreed between Edward Coyne and the said Margaret Coyne that the death benefit of $1,000, upon its receipt by the said Margaret, should be paid to Henrietta Buck, for the support and maintenance of Richard M. Coyne, Raymond W. Coyne, and Robert H. Coyne. That Margaret Coyne agreed with and promised the said Edward Coyne that she would pay the proceeds of the benefit certificate to Henrietta Buck for the uses and purposes above mentioned. That Edward Coyne at first desired to designate the said Henrietta Buck as beneficiary in the certificate, but was informed that under the constitution and by-laws of the Supreme Conclave of the Improved Order of Heptasophs he was not permitted to do so, because she was not within the degree of relationship required by its constitution and by-laws. Edward Coyne departed this life on the 2d of September, 1906, and satisfactory proof of his death has been transmitted to the Supreme Conclave of the Improved Order of Heptasophs, in which proof of death the infant children of said Edward Coyne, whose names have been mentioned, were designated as claimants, but Margaret Coyne, notwithstanding the agreement between herself and Edward Coyne, hereinbefore stated, now claims the fund in her own right.

If these facts be true, it cannot be doubted that the proceeds of the death benefit certificate when paid to Margaret Coyne should be charged with a trust in her hands in favor of the infant children of Edward Coyne. The facts are fully sufficient to raise a valid trust, which a court of equity should enforce. "No precise form of words is necessary to create a trust, but the intention must be clear. The fact that a trust in lands is created must be not only manifested and proved by a writing properly executed, but it must also be manifested and proved by such a writing what the trust is. The declaration of trust, whether written or oral, must be reasonably certain in its material terms; and this requisite of certainty includes the subject-matter or property embraced within the trust, the beneficiaries or persons in whose behalf it is created, the nature and quantity of interest which they are to have, and the manner in which the trust is to be performed. If the language is so vague, general, or equivocal that any of these necessary elements of the trust is left in real uncertainty, then the trust must fail. No particular technical words need be used. Even the words 'trust' or 'trustee' are not

66 A.-45

essential. Any other words which unequivocally show an intention that the legal estate was vested in one person, but to be held in some manner, or for some purpose on behalf of another, if certain as to all other requisites, are sufficient." 2 Pom. Eq. Juris. § 1009. This court, in the Casualty Ins. Company's Case, 82 Md. 560, 34 Atl. 780, said: "In determining whether or not a trust has been created, courts will take into consideration the situation and relations of the parties, the character of the property, and the purpose which the settlor had in view in making the declaration. No technical terms or expressions are needed. It is sufficient if the language used shows that the settlor intended to create a trust, and clearly points out the property, the beneficiary, and the disposition to be made of the property." The allegations of the bill, which we have in substance stated, are sufficiently certain and definite as to the subject-matter of the trust, the persons to enjoy it, and the manner of its dispositions, to gratify the requirement of law as to the creation of a valid trust. The subject of the trust being personal property, it may be created by parol, and established by parol evidence. The authorities appear to be uniform in holding that the statute of frauds does not extend to trusts of personal property, and that such trusts may be created and proved by parol. It has been so held by this court in a number of cases, among which are the cases of Smith v. Darby, 39 Md. 277; Reiff v. Horst, 52 Md. 268; Snader v. Slingluff, 95 Md. 366, 52 Atl. 510.

There is also a class of trusts which arise ex maleficio, and equity, in order to reach the possessor of what in conscience belongs to another, turns him into a trustee. "Thus, if a man in confidence of the parol promise of another to perform an intended act, should omit to make certain provisions, gifts, or arrangements, by will, or otherwise, such a promise would be specifically enforced in equity, although founded on a parol declaration creating a trust contrary to the statute of frauds, for it would be a fraud upon all other parties to permit him to derive a bene fit from his own breach of duty and obligation." Story, Eq. Juris. (13th Ed.) § 781. The cases of Catland v. Hoyt, 78 Me. 355, 5 Atl. 775, and Hirsh et al. v. Auer, 146 N. Y. 16, 40 N. E. 397, are very similar in their facts to the case at bar. In the former case, David B. Catland held a certificate in the United Order of the Golden Cross, by the terms of which the money that should become due upon it was to be paid to the defendant, who, after the death of the insured, received the sum of $1,959.60. The plaintiff, Catland's executor, claimed and offered evidence tending to prove an oral agreement between the defendant and the deceased, by the terms of which the defendant promised that, after deducting what should be due from the deceased to him, he would pay the balance to the heirs of the deceased. The

defendant objected to this evidence, upon the ground that it tended to vary the terms of the written agreement between the deceased and the insurance company, and further, if admitted, would show a promise by the defendant to pay, not to the deceased, but to his heirs, and that such a promise would not support an action by the executor. The objections were overruled, and the plaintiff obtained a verdict. In disposing of these objections, the court said: "The oral evidence was not in conflict with the written contract. It was offered, not to vary or control the contract between the deceased and the insurance company, but to show another and an independent contract between the deceased and the defendant. It was offered, not to show that the defendant was not to receive the money, but to show what he was to do with it after receiving it." In the latter case, John Hirsh, at the time of his death, held a death benefit certificate in the Ancient Order of United Workmen, the proceeds of which were payable at his death to his wife. Mrs. Hirsh having died in the lifetime of her husband, he surrendered the certificate, and received a new one, in which his sister, Clara Auer, was designated as the beneficiary. Clara Auer collected $2,000 from the order in full settlement, and surrendered the certificate. At the time the second certificate was taken out, there was an agreement between John Hirsh and Clara Auer, the beneficiary, that when she received the money from the order on the certificate she would expend a sum of money, not exceeding $500, for funeral expenses and a monument, and would divide $1,500 equally between his children. In dealing with this state of facts, the court said: "We see no legal objections to the agreement made by the insured and the beneficiary in this case. It in no way interfered with the contract rights of the society issuing the insurance; nor did it vary the certificate in any manner. The insurance was paid to the beneficiary named, and the agreement was in harmony with the objects of the society. The original certificate was payable to the wife of John Hirsh, and when she died John Hirsh selected his sister to act as beneficiary and disburse the money in the manner indicated for the benefit of his infant children. It was competent for Clara Auer to agree with her brother to receive the proceeds of his life insurance, subject to such trust as he might create. The fact that the insured could have at any time changed the beneficiary named in his certificate has no bearing upon the question as now presented; but he did not, as a matter of fact, exercise that right, and his sister collected the insurance impressed with the trust created by the agreement, which the trial court has found was made by the parties in interest."

In view of the recent decision of this court in the case of Agnes Dooley Clark v. Edith B. Callahan and husband, 104 Md.

66

Atl. 618, wherein the precise question presented by the demurrer in this case was thoroughly considered and settled adversely to the contentions of the appellees, further discussion of this case is unnecessary.

For the reasons stated, the order appealed against must be reversed.

Order reversed, and cause remanded, with costs to the appellants above and below.

(106 Md. 122)

BENNETT v. BENNETT. (Court of Appeals of Maryland. May 17, 1907.) WILLS-CONTEST-DISMISSAL.

Where a caveat alleging undue influence. etc., was filed in proceedings for the probate of a will and issues were framed and sent to the circuit court, and after various delays, covering a period of nearly three years, and when the issues had been specially set for trial on a particular day, the attorney for the caveator filed in the clerk's office an order to dismiss, and before the will could be again presented to the orphans' court for probate he gave notice to that court of his intention to file another caveat, and admitted to the caveatee's attorney that he intended to ask for issues on the new caveat to be sent to a court of law, and in the meantime the creditors of the testator had filed a bill in equity for the sale of his real estate for the payment of his debts and receivers had been appointed in that suit who were in charge of the property, it was error to dismiss the issues.

Appeal from Court of Common Pleas.

Judicial proceedings on the probate of the will of Henry C. Bennett, deceased, in which William A. Bennett filed a caveat, and Nellie K. Bennett, as caveator, appeals from an order of the circuit court dismissing the case after the framing of issues in the orphans' court. Reversed and remanded.

Argued before BRISCOE, SCHMUCKER, BOYD, and PEARCE, JJ.

Wm. M. Maloy and William J. O'Brien, Jr., for appellant. E. L. Painter, for appellee.

SCHMUCKER, J. It appears from the record in this case that Henry C. Bennett. late of Baltimore county, died on December 28, 1903, leaving the appellant as his widow, but no children. One week thereafter a paper purporting to be his last will, and on its face duly executed and attested as such, was offered for probate in the orphans' court for Baltimore county. On the same day, but before the offer of the will for probate, the appellee, who is a nephew of the testator, filed a caveat to it, which was answered by the appellant on March 1, 1904. On petition of the caveator issues were framed and sent for trial to the circuit court for Baltimore county on March 1, 1905; the caveator being designated by the orphans' court as plaintiff. The proceedings were removed to the circuit court for Howard county on August 1, 1905, on the suggestion of the caveator that he could not have a fair trial in Baltimore county, and on the 2d of February, 1906, they were removed to the court

of common pleas of Baltimore city upon the suggestion of the caveatee that she could not have a fair trial in Howard county. On January 23, 1907, the caveator's attorney filed in the office of the clerk of the court of common pleas an order entitled in this case to "enter the above-entitled case dismissed." On the same day the caveator filed in the case a petition and motion of ne recipiatur as to the order of dismissal. This petition was answered by the caveator, and upon a hearing of the matter the court passed an order overruling the motion and dismissing the petition, and the caveatee appealed from the order. Before the passing of the order appealed from the caveator gave notice to the orphans' court of Baltimore county of his intention to file another caveat to the will.

The single issue raised by the appeal is whether the caveator was entitled to dismiss the caveat at the stage of the proceedings at which he filed the order for that purpose, without the consent of the caveatee. The precise question of the extent of a caveator's right to dismiss the entire proceedings upon a caveat filed by him against the objection of the caveatee, after an answer has been filed to the caveat and issues sent to a court of law for trial, has not we believe been passed upon by this court. There have been, however, a number of cases decided by us sufficiently similar to the one at bar to throw much light upon the principles involved in its determination. The right of the plaintiff as a general rule in an action at law to dismiss the case or suffer a nonsuit at any time before verdict has long been recognized, but in suits in equity this court, in the case of Riley v. First Nat. Bank, 81 Md. 26, 31 Atl. 585, held after careful consideration that the plaintiff had no such unrestricted right of dismissal. It was said in that case: "After a bill has been filed and proceedings had under it, when counsel have appeared and costs have been incurred, it would be an unfair advantage to allow the plaintiff's attorney the right to dismiss his client's complaint as to parties, either plaintiff or defendant, without the previous sanction of the court." In support of the views thus expressed the court cited, Daniell's Chy. Pldg. & Prac. 790, Wiswell v. Starr, 50 Me. 384, and Camden & Amboy R. R. Co. v. Stewart, 19 N. J. Eq. 69.

In Price v. Taylor, 21 Md. 356, where issues upon a caveat to a will were dismissed upon the ex parte order of the caveator, filed in the court of law where they had gone for trial, the court, in discussing his right to discontinue the proceeding, applied to the case the ordinary rule in actions at law that the plaintiff may discontinue the suit at anytime by a written order to the clerk to that effect. But in that case the court said, in its opinion, on page 364 of 21 Md.: "We do not intend to say, however, that parties plaintiff

would always have the right to dismiss issues without trial. * * * In Levy v. Levy, 28 Md. 21, the court, relying on the decision in Price v. Taylor, supra, again applied to issues under a caveat to a will the rule applicable to actions at law, and held that a caveator might dismiss the issues upon the caveat by an order to that effect filed in the case. It is to be observed, however, that neither in Price v. Taylor nor Levy v. Levy did the caveatee object to or attempt to prevent the dismissal of the issues or show cause why it ought not to have been permitted. In the Berry Will Case, 93 Md. 560, 49 Atl. 401, we have for the first time an attempt by a caveator to dismiss issues, over the objection of the caveatee, in the court of law to which they have been sent for trial. The lower court in that case permitted the dismissal, and this court upon appeal reversed the action of the lower court. It is true that Berry's Case differs from the one at bar, in that there the effort was to dismiss only certain ones, and not all of the issues, and that the effort was made during the trial of the case after the jury had been sworn; but the reasoning there employed by the court applies with great force to the situation presented by the record now before us. We said in Berry's Case: "The right of a plaintiff to discontinue a case after it has been instituted is not absolute. Riley v. First Nat. Bk. Grafton, 81 Md. 14, 31 Atl. 585. 'We don't intend, however,' observed this court in Price v. Taylor, 21 Md. 365, 'to say that parties plaintiff could always have the right to dismiss issues without trial.' In Pegg v. Warford, 4 Md. 385, it was held that the orphans' court, had no power to revoke an issue which had been sent to the superior court for trial, but, 'that by consent of the parties to the proceedings' the issues may be abandoned in the court of law where they are pending for trial,' and others may be framed by the orphans' court." After observing that it would be subversive of sound policy in the administration of justice to permit the caveators to dismiss a portion of the issues during the trial of the case, as was there attempted to be done, it is further said in the opinion in Berry's Case: "The issues having been made up by the orphans' court and having been sent to a court of law for trial, neither side to the contest has control of them, and, unless they are disposed of by consent or are all dismissed, they must be tried and part of them cannot be withdrawn by either contestant."

All that we decided or were called upon to decide in that case, in reference to the power of a caveator to dismiss issues after they had been sent to a court of law, was that he had no right to make the partial dismissal of them which he there attempted. But the conclusions to which expression was given in the opinion, that the right of a plaintiff to dismiss issues without trial is not absolute, and that after issues have been made