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lifetime of the testator, letters of adminis- | 169, 52 Am. Dec. 685; Colvin v. Warford, 20 tration c. t. a. upon his estate were granted Md. 393. If the foregoing inquiries be anto his widow, Sallie C. Bantz, the present swered in the affirmative, the further quesappellee, by the orphans' court when the will tion of the testamentary capacity of the teswas admitted to probate in common form, tator at the time the lines were drawn is T'he administratrix c. t. a. filed an answer raised by the caveat. All of these questions to the caveat setting up a want of jurisdic-relate to the factum of the will—i. e., the tion in the orphans' court to determine the making of the instrument and therefore conquestions presented by it, and further aver cern its probate, and not its construction, and ring that, when it was filed, she had already fall within the jurisdiction of the orphans' completed the administration of the personal court, which, under our testamentary system, estate of the testator in the orphans' court has exclusive jurisdiction in granting or reand passed over the net balance thereof to fusing the probate of wills. Johns v. Hodges, Hon. Wm. Pinkney Whyte, who had been 62 Md. 525. appointed trustee, in lieu of those named in The question here presented is whether the the will to execute the trusts thereof by the lines do or do not constitute part of the will; circuit court of Baltimore city in a suit in and it is entirely distinct from that of the stituted for that purpose, to which all per force and effect of erasures, interlineations, sons interested in the estate, including the or alterations confessedly made by the testaappellant, were made parties, and that the

tor appearing in a will whose text has been appellant had by its answer filed in that established, as was the case in Eschbach v. suit neither admitted nor denied the allega- | Collins, 61 Md. 478, 48 Am. Rep. 123, and tions of the bill, but submitted its rights to Ramsay y. Welby, 63 Md. 584. The lastthe determination of the circuit court. To mentioned case, which was much relied upon this answer the appellant demurred.

by the appellee, resembles the present case The orphans' court, after hearing the case, in some respects, but upon close examination filed the order appealed from dismissing the is plainly distinguishable from it. In Ramcaveat, "for the reason that at the time of say's Case the interlineations and erasures, admitting the will to probate the court did some in ink and others in lead pencil, appearestablish the text of the will as it appeared ing upon the will, which had been admitted then, and as to the determining and estab

to probate in common form, were confessedlishing any rights that might arise underly made by the testatrix, wbose testamentary said will it is beyond the court's jurisdic capacity at the time of making them was not tion.” That order was signed by two of the

challenged. No caveat was filed to the will three judges of the orphans' court. The oth

in that case, but certain parties interested er judge filed a dissenting opinion, holding in the estate filed a petition in the orphans' that the matters alleged in the caveat re

court averring that the changes in the will lated to the factum of the will, and were

made in lead pencil were not to be considertherefore within the jurisdiction of the court, ed as operative, and setting forth certain and that the administratrix should be re

constructions of particular provisions of the quired to answer the caveat. We think the

will as the true and legal effect of the same, orphans' court erred in passing the order ap

and praying that the true text of the will pealed from. The will having been admitted

might be ascertained and declared, and the to probate without contest in the form in

bequest in their favor secured to them. The which it then appeared, any one who would respondent there in her answer set up the have an interest in the estate if that probate want of jurisdiction in the orphans' court to were revoked and a new one granted of the adjudicate the questions raised by the petiwill in its original condition was entitled to tion. The orphans' court adopted the refile a caveat to it within three years there spondent's view, and dismissed the petition, after, even though letters of administration

and this court, upon an appeal affirmed the had been issued upon the personal estate. order of dismissal. This court affirmed that Code 1904, art. 93, 88 318, 341; Levy V. case solely upon the ground that the quesLevy, 28 Md. 25. The appellant had such an

tions there raised by the petition did not reinterest in the estate as to authorize it to

late to the mere factum of the will, or whethfile its caveat for it will be entitled to all

er the changes in it had been inserted by of the property passing under the residuary the testator, but related to the legal construcclause of the will if it be admitted to pro tion of its provisions, over which the orþate in its original form. The allegations of phans' court clearly had no jurisdiction. Our the caveat present for determination the in- predecessors in that case said (at page 586 of quiry whether the lines referred to were put 63 Md.): "In the probate nothing is to be upon the will by the testator or under his determined but what relates to the mere direction, and, if so, whether he thereby in- factum of the will. What is the legal effect tended to revoke the portions of it over which of its provisions is not involved in that prothey were drawn. Even the cancellation of ceeding. Undoubtedly any clause or portion the signature to a will is an equivocal act, of the paper writing propounded as a will and does not amount to a revocation unless may be rejected if it appears it was not indone animo revocandi. Semmes v. Semmes, serted by the testator, or that he had re 7 Har. & J. 388; Rhodes v. Vinson, 9 Gill, voked it, or that it was not embraced by the

execution. Such facts go to the actual mak on the caveat result in a revocation of the ing of the instrument; but all that is em former probate and the granting of a new bodied in the paper writing executed by a one, she will be protected for acts done in testator as an integral part of his intended due course under the letters of administration testamentary disposition is to be accepted by c. t. a. heretofore granted to her upon the the orphans' court as entering into his will. will as admitted to probate in common form. The validity and legal construction of the The order appealed from must be reversed, provisions are matters for subsequent de and the case remanded for further proceedtermination by the appropriate tribunals. ings in accordance with the views herein er. What was in fact admitted to probate as pressed. constituting the last will of Susan M. Shield, Order reversed, with costs to be paid out as set out in the order of probate, and as of the estate, and cause remanded. declared by the orphans' court when dismissing the petition was the paper writing

(106 Md. 54) propounded, as made and left by her as her will, with all the additions, alterations, and


IMPROVED ORDER OF HEPTA. erasures appearing therein whether made in

SOPHIS et al. ink or pencil. To the extent any of these changes were involved in the mere question

(Court of Appeals of Maryland. May 15, 1907.) of the factum of the will they were open to


Where a member of a mutual benefit assocontest by the parties interested, and might

ciation has a new certificate issued in favor of have been raised by appellants in plenary | M., under a parol agreement that the latter shall proceedings. But the prayer of the petition pay the proceeds to B., for the support and is confined to no such simple issue. It calls

maintenance of the member's minor children, a

trust was created in favor of the minor children on the orphans' court to declare the true text

which attached to the proceeds of the death benof the will not in the sense of merely recit efit certificate when paid to M. ing or setting out what words are actually or (Ed. Note.-For cases in point, see Cent. Dig. legibly apparent and unerased in the will vol. 47, Trusts, 88 15-24.] (that the court had already in effect done), Appeal from Circuit Court No. 2 of Baltibut to determine the operation of the will in more City; Pere L. Wickes, Judge. a legal sense as derivable from construction; Suit by Richard M. Coyne and others such construction embracing the effect to be against the Supreme Conclave of the Imgiven the alterations, additions, and erasures proved Order of Heptasophs and others. with reference to the original text, and to be From an order sustaining a demurrer to the given to the fact of part of the substituted or bill of complaint and dismissing the bill, com. added writing being in pencil and the question plainants appeal. Reversed and remanded. of how far such changes were contingent or Argued before BOYD, PEARCE, BURKE, absolute, and from such construction to as SCHMUCKER, and ROGERS, JJ. certain and declare the rights and interests Emil Budnitz and J. Coo man Boyd, for of the appellant to certain bequests as opera- | appellants. W. Browne Hammond (Olin tive in law. It is well settled the orphans'

Bryan, on the brief), for appellees. courts are clothed with no such jurisdiction. Questions of the nature described can only be

BURKE, J. This record brings up for redetermined in the courts of law or equity.” view the propriety of an order of the circuit It is obvious from what was there said that

court No. 2 of Baltimore City, by which a de the views expressed by the court in that case murrer to the bill of complaint in this case are in entire harmony with the conclusion at

was sustained, and the bill dismissed. The which we have arrived in the present one. facts are: That Edward Coyne, the father Vor do we think that the appearance and of Richard M. Coyne, Raymond W. Coyne, answer of the appella to the case institut

and Robert H. Coyne, infants, was a member ed in the circuit court, for the appointment of the J. F. Wiessner Conclave No. 458 of of a new trustee and the administration of

the Improved Order of Heptasophs. That, the trusts of the will under the supervision by reason of his membership in that conof that court, estopped it from filing or prose- clave, he was entitled to a death benefit cercuting the present caveat. The trusts of the tificate in the Supreme Conclave of the Imwill relate only to the life estate of the tes-proved Order of Heptasophs, which certiftator's widow. The portions of the will icate was duly issued to and accepted by him creating the equitable life estate of the widow on June 25, 1900. That the certificate was and appointing trustees to hold and manage payable to Annie M. Coyne, his wife, who the estate for her benefit during her life are was designated as beneficiary, and by which not assailed by the caveat which asserts the certificate the defendant, the Supreme Convalidity of the entire instrument when re clave of the Improved Order of Heptasophs, stored to its alleged original condition with promised and bound itself to pay out of its the lines referred to removed from its face. benefit fund to Annie M. Coyne the sum of The orphans' court, instead of dismissing the $1,000 within 60 days from the receipt of satcaveat, should have required the appellee to isfactory proof of the death of the said Edanswer it and allowed the case to proceed ward Coyne. Annie M. Coyne died in the in the usual mauner. If the proceedings up lifetime of her husband, and he, in accord

Henrietta Buck as beneficiary in the certif- ' til

ance with the constitution and by-laws of essential. Any other words which unequivo. the Supreme Conclave of the Improved Order cally show an intention that the legal estate of Heptasophs, created a change in the bene was vested in one person, but to be held in ticiary under the certificate by surrendering some manner, or for some purpose on behalf the same, and having a new certificate issued, of another, if certain as to all other requiin which the defendant, Margaret Coyne, was sites, are sufficient." 2 Pom. Eq. Juris. $ named as beneficiary. Although Margaret 1009. This court, in the Casualty Ins. ComCoyne was designated as the beneficiary un pany's Case, 82 Md. 560, 34 Atl. 780, said: der the new certificate without any qualifi "In determining whether or not a trust has cation upon the face thereof, it was under been created, courts will take into considerastood and agreed between Edward Coyne and tion the situation and relations of the parties, the said Margaret Coyne that the death bene the character of the property, and the purfit of $1,000, upon its receipt by the said pose which the settlor bad in view in makMargaret, should be paid to Henrietta Buck, ing the declaration. No technical terms or for the support and maintenance of Richard expressions are needed. It is sufficient if the M. Coyne, Raymond W. Coyne, and Robert language used shows that the settlor intendH. Coyne. That Margaret Coyne agreed with ed to create a trust, and clearly points out and promised the said Edward Coyne that

the property, the beneficiary, and the disshe would pay the proceeds of the benefit cer position to be made of the property." The tificate to Henrietta Buck for the uses and allegations of the bill, which we have in subpurposes above mentioned. That Edward

stance stated, are sufficiently certain and Coyne at first desired to designate the said definite as to the subject-matter of the trust,

the persons to enjoy it, and the manner of its icate, but was informed that under the con dispositions, to gratify the requirement of stitution and by-laws of the Supreme Con law as to the creation of a valid trust. The clave of the Improved Order of Heptasophs subject of the trust being personal property, he was not permitted to do so, because she it may be created by parol, and established was not within the degree of relationship re by parol evidence. The authorities appear quired by its constitution and by-laws. Ed to be uniform in holding that the statute of ward Coyne departed this life on the 2d of frauds does not extend to trusts of personal September, 1906, and satisfactory proof of property, and that such trusts may be creathis death has been transmitted to the Su ed and proved by parol. It has been so held preme Conclave of the Improved Order of

by this court in a number of cases, among Heptasophs, in which proof of death the in which are the cases of Smith y. Darby, 39 fant children of said Edward Coyne, whose Md. 277; Reiff v. Horst, 52 Md. 268; Snader names have been mentioned, were designated v. Slingluff, 95 Md. 366, 52 Atl. 510. as claimants, but Margaret Coyne, notwith There is also a class of trusts which arise standing the agreement between herself and

ex maleficio, and equity, in order to reach Edward Coyne, hereinbefore stated, now the possessor of what in conscience belongs claims the fund in her own right.

to another, turns him into a trustee. “Thus, If these facts be true, it cannot be doubt

if a man in confidence of the parol promise of ed that the proceeds of the death benefit cer another to perform an intended act, should tificate when paid to Margaret Coyne should omit to make certain provisions, gifts, or arbe charged with a trust in her hands in fa

rangements, by will, or otherwise, such a vor of the infant children of Edward Coyne. promise would be specifically enforced in The facts are fully sufficient to raise a valid

equity, although founded on a parol declaratrust, which a court of equity should en tion creating a trust contrary to the statute force. “No precise form of words is neces of frauds, for it would be a fraud upon all sary to create a trust, but the intention must other parties to permit him to derive a bene be clear. The fact that a trust in lands is fit from his own breach of duty and Obligacreated must be not only manifested and tion." Story, Eq. Juris. (13th Ed.) $ 781. proved by a writing properly executed, but The cases of Catland v. Hoyt, 78 Me. 355, 5 it must also be manifested and proved by Atl. 775, and Hirsh et al. v. Auer, 146 N. such a writing what the trust is. The dec Y. 16, 40 N. E. 397, are very similar in laration of trust, whether written or oral, their facts to the case at bar. In the former must be reasonably certain in its material case, David B. Catland held a certificate in terms; and this requisite of certainty in the United Order of the Golden Cross, by cludes the subject matter or property em the terms of which the money that should bebraced within the trust, the beneficiaries or come due upon it was to be paid to the depersons in whose behalf it is created, the fendant, who, after the death of the insured, nature and quantit of interest which they received the sum of $1,959.60. The plaintiff, are to have, and the manner in which the Catland's executor, claimed and offered evitrust is to be performed. If the language is dence tending to prove an oral agreement beso vague, general, or equivocal that any of tween the defendant and the deceased, by these necessary elements of the trust is left the terms of which the defendant promised in real uncertainty, then the trust must fail. that, after deducting what should be due No particular technical words need be used. from the deceased to him, he would pay the Even the words 'trust' or 'trustee' are not balance to the heirs of the deceased. The

06 A.–45

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defendant objected to this evidence, upon the Atl. 618, wherein the precise question pre-
ground that it tended to vary the terms of sented by the demurrer in this case was
the written agreement between the deceased thoroughly considered and settled adversely
and the insurance company, and further, if to the contentions of the appellees, further
admitted, would show a promise by the de discussion of this case is unnecessary.
fendant to pay, not to the deceased, but to For the reasons stated, the order appeal-
his heirs, and that such a promise would ed against must be reversed.
not support an action by the executor. The Order reversed, and cause remanded, with
objections were overruled, and the plaintiff costs to the appellants above and below.
obtained a verdict. In disposing of these
objections, the court said: “The oral evl.
dence was not in conflict with the written

(106 Md. 122) contract. It was offered, not to vary or con

BENNETT V. BENNETT. trol the contract between the deceased and (Court of Appeals of Maryland. May 17, 1907.) the insurance company, but to show another WILLS-CONTEST-DISMISSAL. and an independent contract between the de Where a caveat alleging undue influence. ceased and the defendant. It was offered,

etc., was filed in proceedings for the probate of

a will and issues were framed and sent to the not to show that the defendant was not to re

circuit court, and after various delays, covering ceive the money, but to show what he was a period of nearly three years, and when the to do with it after receiving it.” In the lat

issues had been specially set for trial on a par:

ticular day, the attorney for the caveator filed ter case, John Hirsh, at the time of his death,

in the clerk's office an order to dismiss, and held a death benefit certificate in the Ancient before the will could be again presented to the Order of United Workmen, the proceeds of orphans' court for probate he gave notice to which were payable at his death to his wife.

that court of his intention to file another caveat,

and admitted to the caveatee's attorney that he Mrs. Hirsh having died in the lifetime of

intended to ask for issues on the new caveat to her husband, he surrendered the certificate, be sent to a court of law, and in the meantime and received a new one, in which his sister,

the creditors of the testator had filed a bill in

equity for the sale of his real estate for the Clara Auer, was lesignated as the beneti

payment of his debts and receivers had been ciary. Clara Auer collected $2,000 from the appointed in that suit who were in charge of order in full settlement, and surrendered the the property, it was error to dismiss the issues. certificate. At the time the second certif

Appeal from Court of Common Pleas. icate was taken out, there was an agreement

Judicial proceedings on the probate of the between John Hirsh and Clara Auer, the

will of Henry C. Bennett, deceased, in which beneficiary, that when she received the money

William A. Bennett filed a caveat, and from the order on the certificate she would

Nellie K. Bennett, as caveator, appeals from expend a sum of money, not exceeding $500,

an order of the circuit court dismissing the for funeral expenses and a monument, and

case after the framing of issues in the orwould divide $1,500 equally between his chil.

phans' court. Reversed and remanded. dren. In dealing with this state of facts, the

Argued before BRISCOE, SCHMUCKER, court said: "We see no legal objections to

BOYD, and PEARCE, JJ. the agreement made by the insured and the beneficiary in this case. It in no way inter

Wm. M. Maloy and William J. O'Brien, fered with the contract rights of the society

Jr., for appellant. E. L. Painter, for appelissuing the insurance; nor did it vary the cer

lee. tificate in any manner. The insurance was paid to the beneficiary named, and the agree

SCHMUCKER, J. It appears from the ment was in harmony with the objects of

record in this case that Henry C. Bennett. the society. The original certificate was pay

late of Baltimore county, died on December able to the wife of John Hirsh, and when she

28, 1903, leaving the appellant as his widow, died John Hirsh selected his sister to act

but no children. One week thereafter a as beneficiary and disburse the money in the

paper purporting to be his last will, and on manner indicated for the benefit of his in

its face duly executed and attested as such, fant children. It was competent for Clara

was offered for probate in the orphans' court Auer to agree with her brother to receive

for Baltimore county. On the same day, but the proceeds of his life insurance, subject to

before the offer of the will for probate, the such trust as he might create. The fact that

appellee, who is a nephew of the testator, the insured could have at any time changed

filed a caveat to it, which was answered by the beneficiary named in his certificate has the appellant on March 1, 1904. On petino bearing upon the question as now pre

tion of the caveator issues were framed and sented; but he did not, as a matter of fact,

sent for trial to the circuit court for Balti. exercise that right, and his sister collected more county oi March 1, 1905; the caveator the insurance impressed with the trust creat being designated by the orphans' court as ed by the agreement, which the trial court plaintiff. The proceedings were removed to has found was made by the parties in in the circuit court for Howard county on terest."

August 1, 1905, on the suggestion of the In view of the recent decision of this court caveator that he could not have a fair trial in the case of Agnes Dooley Clark v. Edith in Baltimore county, and on the 2d of FebruB. Callahan and husband, 104 Md. 66 ary, 1906, they were removed to the wurt

of common pleas of Baltimore city upon the would always have the right to dismiss is." suggestion of the caveatee that she could sues without trial. * * * In Levy v. Levy, 28 not have a fair trial in Howard county. Md. 21, the court, relying on the decision in On January 23, 1907, the caveator's attorney Price v. Taylor, supra, again applied to isfiled in the office of the clerk of the court sues under a caveat to a will the rule apof common pleas an order entitled in this plicable to actions at law, and held tba case to "enter the above-entitled case dis a caveator might dismiss the issues upon missed.” On the same day the caveator fil the caveat by an order to that effect filed ed in the case a petition and motion of ne in the case. It is to be observed, however, recipiatur as to the order of dismissal. This that neither in Price v. Taylor por Levy v. petition was answered by the caveator, and Levy did the caveatee object to or attempt upon a hearing of the matter the court pass to prevent the dismissal of the issues or ed an order overruling the motion and dis show cause why it ought not to have been missing the petition, and the caveatee ap permitted. In the Berry Will Case, 93 Md. pealed from the order. Before the passing 560, 49 Atl. 401, we have for the first time of the order appealed from the caveator gave an attempt by a caveator to dismiss issues, notice to the orphans' court of Baltimore over the objection of the caveatee, in the county of his intention to file another ca veat court of law to which they have been sent to the will.

for trial. The lower court in that case perThe single issue raised by the appeal is mitted the dismissal, and this court upon whether the caveator was entitled to disappeal reversed the action of the lower miss the caveat at the stage of the proceed court. It is true that Berry's Case differs ings at which he filed the order for that from the one at bar, in that there the efpurpose, without the consent of the caveatee. fort was to dismiss only certain ones, and The precise question of the extent of a not all of the issues, and that the effort was caveator's right to dismiss the entire pro made during the trial of the case after the ceedings upon a caveat filed by him against jury had been sworn; but the reasoning there the objection of the caveatee, after an an employed by the court applies with great swer has been filed to the caveat and is

force to the situation presented by the recsues sent to a court of law for trial, has not ord now before us. We said in Berry's Case: we believe been passed upon by this court. “The right of a plaintiff to discontinue a There have been, however, a number of

case after it has been instituted is not abcases decided by us sufficiently similar to the solute. Riley v. First Nat. Bk. Grafton, 81 one at bar to throw much light upon the Md. 14, 31 Atl. 585. 'We don't intend, howprinciples involved in its determination. ever,' observed this court in Price v. Taylor, The right of the plaintiff as a general rule

21 Md. 365, 'to say that parties plaintiff in an action at law to dismiss the case or

could always have the right to dismiss issues suffer a nonsuit at any time before verdict without trial.' In Pegg v. Warford, 4 Md. has long been recognized, but in suits in

385, it was held that the orphans' court, had equity this court, in the case of Riley v. no power to revoke an issue which had been First Nat. Bank, 81 Md. 26, 31 Atl. 585, held sent to the superior court for trial, but, that after careful consideration that the plaintiff

by consent of the parties to the proceedings' had no such unrestricted right of dismissal. the issues may be abandoned in the court It was said in that case: “After a bill has

of law where they are pending for trial,' and been filed and proceedings had under it,

others may be framed by the orphans' court." when counsel bave appeared and costs have

After observing that it would be subversive been incurred, it would be an unfair ad. of sound policy in the administration of jusvantage to allow the plaintiff's attorney the

tice to permit the caveators to dismiss a right to dismiss his client's complaint as

portion of the issues during the trial of the to parties, either plaintiff or defendant, with case, as was there attempted to be done, it out the previous sanction of the court." In

is further said in the opinion in Berry's support of the views thus expressed the

Case: “The issues having been made up by court cited, Daniell's Chy. Pldg. & Prac. the orphans' court and having been sent to 790, Wiswell v. Starr, 50 Me. 384, and Cam a court of law for trial, neither side to the den & Amboy R. R. Co. v. Stewart, 19 N. J.

contest has control of them, and, unless they

are disposed of by consent or are all disIn Price v. Taylor, 21 Md. 356, where is. missed, they must be tried and part of the sues upon a caveat to a will were dismissed cannot be withdrawn by either contestant." upon the ex parte order of the caveator, filed All that we decided or were called upon to in the court of law where they had gone for

decide in that case, in reference to the power trial, the court, in discussing his right to

of a caveator to dismiss issues after they discontinue the proceeding, applied to the had been sent to a court of law, was that he case the ordinary rule in actions at law that had no right to make the partial dismissal of the plaintiff may discontinue the suit at any them which he there attempted. But the time by a written order to the clerk to that conclusions to which expression was given effect. But in that case the court said, in its in the opinion, that the right of a plaintiff opinion, on page 364 of 21 Md.: "We do not to dismiss issues without trial is not abintend to say, however, that parties plaintiff solute, and that after issues have been made

Eq. 69.

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