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 child received from his or her father, but according to their construction of the will a child who died "without leaving issue" could not make a valid will to affect that share, and hence, if that be so, the word "intestate" in that connection would be meaningless and useless; for, if a child who died without leaving issue had no power to will his or her share, why was it necessary to provide for a case in which one died "intestate and without leaving issue"? Does it not strongly imply that the testator intended that some of his children might die testate, as to his or her share, although not leaving issue? Of course, the testator could not control his children's disposition of their own property not received from or through him. They might die testate or intestate as to that, and, whether they left issue or not, he could not direct how it should go. Nor did he attempt in any way to limit their disposition of property left them absolutely by his will, but the provisions we are quoting and are considering only refer to the shares of the residue of his estate which he left in trust for his children during their lives, and provide for contingencies that might happen with reference to those shares. If the testator intended that in case any of his children died without leaving issue the share of the one so dying must go as provided for in clause 3, whether such child died testate or intestate, he could and doubtless would have said so, but he expressly limited the disposition of a share by that clause to the "one so dying"; that is to say, dying "intestate and without leaving issue," and not merely to dying "without leaving issue." It would seem, therefore, to be quite certain that the testator did not intend a share to pass under that clause 3, unless both of the conditions provided for by him existed-that is to say, that such child die "intestate and without leaving issue"and the implication is very strong that he intended that a child could die testate as to such share, although not leaving issue. When we look to clause 1, what do we find? He first provided that one equal sixth part of the clear annual income be paid "to each of my children during life"-making no distinction between the married and the single-and "from and after the death of my said children, I give, devise and bequeath the share of my estate of the one so dying to such of his or her issue as he or she may by last will appoint, * * * which appointment I hereby empower my children to make whether married or single." There was no necessity to give special power to a married child to make the appointment, as even at common law a married woman could execute a power, and for many years she could make a will in this state. Nor was there any reason for specially authorizing a single child to do so. It is dif limit the appointment to children who left issue, as he knew those who remained single would not have issue. If he did so intend, the last part of that clause was wholly unnecessary, for he had already provided for those leaving issue. It is more reasonable to suppose that, instead of leaving the share of a child who had issue to all of his or her issue, he intended simply to provide that it could go to such of the issue as his child named by will, but, upon failure of the child to make a will, he provided by clause 2, where the share should go. Then, when he said "which appointment I hereby empower my children to make whether married or single," he apparently intended to authorize all of his children, regardless of the question whether they were married or single, to make an appointment, which was to be by last will "and for such estates and with such limitation as may be in such will set forth," but did not name the class of persons for whom the appointment should be made. Then, in clause 3, he provided for those who died "intestate and without leaving issue." It may be conceded that the expression, "which appointment," would properly be construed to refer to the designation of the class from which the appointees must be selected, as well as the method of making it, character of estate, etc., if there was nothing to qualify it, or indicate a contrary intention, but, when we find it used in connection with language which must enlarge the appointment beyond the restrictive language previously used, if given its plain and ordinary meaning, it ought not to be so limited. We must either strike out the words "whether married or single," which judging from their position in the will must have been deliberately inserted, or attribute to the testator a degree of ignorance that the record does not justify. Of course, he did not for a moment suppose that a child who remained single would have issue, and, as only one of his children was married when he made his will, he must have known that the power to appoint for "such of his or her issue" then only applied to one daughter. Indeed, after a lapse of over 30 years from the date of the will, she alone can exercise the power of appointment, as construed by the appellants, as she is the only child who has more than one child or descendant. It is not reasonable to suppose he would have intended such a restrictive power; and, having used expressions in clauses 1 and 3 which clearly indicate that he did not, we must give effect to them. If he had intended that the share of each child who died without leaving issue should at all events go back into his estate for the benefit of his surviving children and the issue of deceased children, he could so easily have said so that the absence of such an expressed intention is a strong presumption that it did not exist. Especially is that so when the omission of the two words "intestate and" from clause 3 would have accomplished it. But he inserted them and now the appellants ask us to strike them out; at least that is the effect of their contention. The construction of the appellants would cause an intestacy as to each share held by children who die without leaving issue. It not only makes the testator say what shall be done if any of them die intestate, as to their respective shares, and without leaving issue, but that all such shall die intestate in respect thereof, although he said he em powered his children whether married or single to make an appointment, and provided for what should be done when any died "intestate and without leaving issue" with such particularity as to necessarily imply that he intended that those who did not leave issue might make wills affecting their respective shares. We are therefore of the opinion that by a proper construction of the whole will of Mrs. Turnbull, or any child similarly situated (not leaving issue), could make a valid will leaving her share to such person or persons as she therein named. Whether or not a child having issue could leave her share to any one other than of her issue is not involved in this case, but we have no doubt that she could leave it to one or more of such issue, where there are more than one. We do not deem the authorities cited by appellants to be at all in conflict with this conclusion. The case of Smith v. Hardesty, 88 Md. 387, 41 Atl. 788, so much relied on, does not seem to us to in any way control the construction of this will. There the power given the wife of the testator was "to devise the same at her death, to my children or either of them, in such manner as she may deem best." The testator had given all of his property to his wife, during her life, with power to sell and dispose of it as she might desire, and to exercise all rights of ownership over it without impeachment of waste, as fully as if it belonged to her in Zee simple. Then followed the power to devise it above quoted, and the testator then continued, "At the death of my wife, I give, bequeath and devise to my two children, all of my property that may remain undisposed of by my wife at the time of her death, or which she may not dispose of by last will and testament or otherwise"; and mentioned his two children by name. The widow of the testator made a will leaving $200 to her sister, to be paid out of the proceeds of crops raised on a farm which had belonged to the testator, and then left the farm subject to a charge of the $200 to a granddaughter. We held that the widow only had a life estate in the property with a power of disposition of the reversion, and that the power to devise was expressly limited to one or both of the testator's two children, and, although both of them were then dead, the widow had no power to make other disposition of the property by her will. In that case we had no question as to whom the will of the testator authorized his wife to appoint. When that is determined, there is generally not much difficulty in deciding whether the power has been properly exercised, but in this case we are called upon to determine whether one of the testator's children who had no issue could under the provisions of the will make an appointment-in other words, the question here is whether Mrs. Turnbull, having no issue, had the power to appoint any one, while in Smith v. Hardesty it was whether the widow had the power to appoint those she did appoint. If we had concluded that the testator only intended to give each child power to appoint one or more of his or her issue, of course, the will of Mrs. Turnbull would not have been a good execution of the power, but having concluded that such was not his intention, but that he meant that his children who had no issue could make an appointment by will, it must be conceded that, if we are right in that conclusion, there was a general power of appointment given to such of his children, and it was not attempted to be limited, as was done in Smith v. Hardesty, to a particular class. Without discussing other authorities, as we have found none which were of assistance in enabling us to reach a conclusion as to what was the intention of the testator beyond those announcing general principles applicable to wills, we will affirm the decree; but will direct the costs to be paid by the trustee out of the corpus of the estate passing under the will of Mrs. Turnbull, inasmuch as it was proper to have the question determined by the court. Decree affirmed, the costs to be paid by the trustee out of the corpus of the estate, passing under the will of Sophia G. C. Turnbull. (105 Md. 371) BOGGS v. INTER-AMERICAN MINING & SMELTING CO. INTER-AMERICAN MINING & SMELTING CO. v. BOGGS. (Court of Appeals of Maryland. April 2, 1907.) 1. PROCESS-SERVICE-SUFFICIENCY. Where a director of a corporation knew of the institution of a suit against it and of the sheriff's desire to summon it by serving process on him as a director, and that a deputy was about to make that service, he could not defeat service by running out of the room and slamming a door in the officer's face. [Ed. Note.-For cases in point, see Cent. Dig. vol. 40, Process, §§ 76-82.] 2. CORPORATIONS FOREIGN REMOVAL OF OFFICE FROM STATE. -- PROCESS Under the express provisions of Code Pub Gen. Laws, art. 23, §§ 409-412, where a for eign corporation went into a state, transacted business, and incurred a liability therein, the courts of that state acquired jurisdiction of a suit on that liability by service of process on a resident director, though the corporation had removed its office from, and ceased to do business in, the state before the suit was brought. [Ed. Note.-For cases in point, see Cent. Dig. vol. 12, Corporations, §§ 2603-2626.] 3. JUDGMENT-VACATION-GROUNDS. Where a court acquires jurisdiction of the subject-matter and the parties of a suit, when the provisions of the rule day acts have been conformed to, and judgment regularly entered thereunder, it will not be stricken out on motion of the defendant, unless some reason be shown why the defendant was prevented from appearing and defending in accordance with the statute or upon some ground of fraud, surprise, or mistake; and, when the motion to set aside is made after the term at which it was rendered, proof of fraud, surprise, or mistake must be clear and convincing. [Ed. Note.-For cases in point, see Cent. Dig. vol. 30, Judgment, §§ 264, 269-284.] 4. APPEAL ORDERS APPEALABLE - REFUSAL TO REQUIRE SECURITY FOR COSTS. Appeal will not lie from an order refusing to require a nonresident plaintiff to furnish security for costs; it being not final in its nature, nor settling any substantial right of the defendant, nor denying the means of further defending the suit. [Ed. Note.-For cases in point, see Cent. Dig. vol. 2, Appeal and Error, §§ 641, 823.] 5. COSTS-SECURITY FOR COSTS-APPLICATION. The record on appeal from an order refusing to require plaintiff, alleged to be a nonresident, to give security for costs insufficiently showed his nonresidence, though the application for the rule for security so stated; the application having been made ex parte, and having not been sworn to nor accompanied by admission, affidavit, or proof of such nonresidence. [Ed. Note.-For cases in point, see Cent. Dig. vol. 13, Costs, §§ 462, 471.] Appeals from Superior Court of Baltimore City; Henry Stockbridge, Judge. Action by William R. Boggs against InterAmerican Mining & Smelting Company. From an order striking out upon terms of final judgment in his favor, plaintiff appeals; and from an order refusing to lay a rule security for costs upon plaintiff, defendant appeals. Order striking out judgment reversed. Defendant's appeal dismissed. Argued before BRISCOE, SCHMUCKER, BOYD, PEARCE, BURKE, and ROGERS, JJ. Stewart Janney, for plaintiff. Joseph N. Ulman, for defendant. SCHMUCKER, J. The first of the crossappeals in this case is by William R. Boggs, the plaintiff below, from an order of the superior court of Baltimore City striking out upon terms of final judgment theretofore rendered in his favor against the Inter-American Mining & Smelting Company. The second is by the said company, the defendant below, from an order of the same court, refusing upon its application to lay a rule security for costs upon the plaintiff, who was alleged to be a nonresident of this state. The two appeals were heard together and they can be disposed of by one opinion. The mining company was incorporated in the District of Columbia; but for some time prior to March 7, 1906, its office, where its records were kept and from which its gen eral business was transacted, was in the Calvert Building, in Baltimore, and during that time H. C. Turnbull, Jr., who did business in Baltimore City and resided in Baltimore county, was president of the corporation. During the time that the company was thus located in Baltimore City, its president, purporting to act in its behalf, employed the plaintiff, Boggs, as a mining engineer at a salary of $200 per month and personal and traveling expenses. On May 28, 1906, Boggs sued the company in the superior court to recover his salary and expenses for October, November, and December, 1905, and January, 1906, amounting in the aggregate to $1,188. The suit was brought under and in conformity to the rule day acts in force in Baltimore City, and the defendant having been returned summoned, and having failed to appear to the action or plead, judgment by default was entered against it on June 27, 1906. On the same day the judgment by default was duly extended for $1,188 and costs. On October 17, 1906, the company appeared by counsel, and moved to strike out the judgment on two grounds: (1) That it, being a foreign corporation, was never served with summons within the meaning of the Maryland statutes, and was therefore not properly in court when the judgment was rendered, and (2) that it was not amenable to this suit in the state of Maryland, and the judgment and all of the proceedings are void for want of jurisdiction. At the hearing of the motion to strike out the judgment, testimony was taken tending to prove that on March 7, 1906 the company moved its office and papers and seal from Baltimore to East Orange, N. J., and thereafter did not conduct any business in Maryland, and that Wm. R. Sweeney was selected president of the company to succeed Mr. Turnbull, although the latter remained, and at the time of the institution of the suit was, one of its directors. P. M. Gover, a deputy sheriff of Baltimore City, then testified that, having been directed to serve the writ in the case' upon Mr. Turnbull, he went over to the Calvert Building, and asked Turnbull if he was one of the officers of the company, and he replied that he was not, but had formerly been its president. To the best of witness' recollection, Turnbull said that he knew the plaintiff, Boggs, and would like to see him get what was due him. The deputy reported this interview to the sheriff, who told him to serve the writ on Turnbull, as he was one of the directors, and the deputy went back to do it; but Turnbull shut the door in his face, and would not let him serve it. The deputy further swore that he explained his object to Mr. Turnbull, and the latter saw the writ, and said he was doing what he could to get Mr. Boggs righted in the matter, or some thing to that effect. He, the deputy, did not read the writ to Mr. Turnbull, but he explained it to him, and Turnbull looked at the writ. Thatcher Bell, another deputy sheriff, testified that he was told by the sheriff to go over to the Calvert Building and serve the writ on Mr. Turnbull; that Gover had not been able to get a service. Witness went over to Turnbull's office with the copies ready to serve, and said to Turnbull, "I have a paper to serve on you." Turnbull said, "I know what you have," and started to go out. Witness reached for Turnbull with the copies, and, when the latter kept running, he commenced to read them, but Turnbull got into the next room and slammed the door. Witness then laid the copies on the table and returned to the sheriff's office. He left the copies of the narr., notice to plead, and writ in this case on the table in Turnbull's office. Mr. Turnbull was put on the stand, and his account then given of the visits of the two deputy sheriffs to him substantially corroborated their testimony, except he denied that .he said to the deputy Bell that he knew what he had, or that he (Turnbull) saw or looked at the writ. There was also evidence tending to show that Mr. Turnbull never reported the service of the writ on him to the company, or took any steps himself looking to a defense of the action, and that the motion had been promptly made by the company when it learned of the suit and judgment. Assuming that Turnbull was a proper person upon whom to serve the writ and other papers, we are indisposed to consume much time in discussing the sufficiency of the service. It is apparent from the evidence that Turnbull was fully informed as to the institution of the suit by Boggs against the company and the desire of the sheriff to summon the company by serving the papers on him as one of its directors, and knew that the deputy was about to make that service when he attempted to elude him and evade the service by running out of the room and slamming the door in the officer's face. Neither he nor the company he represented, if he did represent it for the purpose of the service, can be permitted to set up such a state of facts in support of the motion to strike out the judgment. He might as well have remained in his office and put his fingers in his ears while the deputy read the writ to him, and then claimed to be without information as to its contents or purpose. Defendants have frequently sought to evade or defeat service of process upon them by flight or refusal to accept the process handed them by the serving officer, but the courts have held such efforts futile. Davison v. Baker, 24 How. Prac. (N. Y.) 42; Slaght v. Robbins, 13 N. J. Law, 340; Borden v. Borden, 63 Wis. 377, 23 N. W. 573; Baker v. Carleton, 32 Me. 334. The laws of this state do not prescribe precisely how a summons shall be served upon an individual defendant. The service must be a personal one (2 Poe, Pleading & Practice, par. 62); but the sheriff is not required to read the writ to the defendant, although it is usual for him to read it or explain its nature and leave a copy of it with the person served. Sections 409 to 412 of article 23 of the Code of Public General Laws provide for service of process upon corporations. Section 409 provides that any foreign corporation which shall transact business in this state "shall be deemed to exercise franchises" here, and "shall be liable to suit in any of the courts of this state on any dealings or transactions therein." Section 410 authorized process against a domestic corporation to be served on any president, director, etc. Section 411 provides that suit may be brought in any court in this state against any foreign corporation "deemed to hold and exercise franchises in this state," by a resident of this state on any cause of action, and by a nonresident plaintiff when the cause of action has arisen in this state, and that process in such suits may be served as provided in section 410, or it may be served, in the manner prescribed, upon any agent of such corporation. Section 412 provides that if any corporation, embraced in the preceding section, after any liability shall occur within this state, or after any contract shall have been made by it with any resident of this state, shall cease to have any agent within the state, and no president, director, or manager of the corporation can be found within the state, then, in such case, service of any writ or process from the courts of this state may be had on the person who was last the agent of such corporation; and the statute in such case further provides for the service of copies on the officers of the company, wherever they may be found, in cases where the writ has been served on the last agent. These sections, when properly construed together, provide, among other things, that where any corporation, domestic or foreign, shall, while transacting business in this state, incur a liability here or make a contract with any resident of this state and shall thereafter cease to have an agent here, service of any writ or process issuing from the courts of this state, in respect to such liability on contract, may be made upon the president or any director or manager of the corporation, if he can be found in this state. In other words, that, if a foreign corporation comes here and transacts business and incurs liabilities here, it shall be quoad those liabilities remain subject to the jurisdictions of our courts, even though after incurring the liabilities it may have removed its office and business to another state. With these laws upon our statute book staring it in the face, the defendant came here and transacted business, and in the course of that business incurred the liability for the enforcement of which the present suit was ir stituted. It cannot now be heard to say to the courts of this state that no jurisdiction for the purposes of this suit was acquired over it, by service of process according to our laws upon one of its directors residing within this state, because since incurring the liability it has removed its office to another state. "If a state permits a foreign corporation to do business within her limits, and at the same time provides that in suits against it for business there done process shall be served upon its agents, the provision is to be deemed a condition of the permission, and corporations that subsequently do business in the state are to be deemed to assent to such condition as fully as though they had specially authorized their agents to receive service of the process." St. Clair v. Cox, 106 U. S. 350, 1 Sup. Ct. 354, 27 L. Ed. 222. The court below in our opinion acquired jurisdiction over the defendant in this suit by the service of the process upon its resident director Mr. Turnbull. In cases where the court has jurisdiction of the subject-matter and the parties, "when the provisions of the rule day acts have been conformed to, and a judgment regularly entered thereunder, it will not be stricken out upon motion of the defendant, unless some reason be shown why the defendant was prevented from appearing and making defense in accordance with the requirements of the statute or upon some ground of fraud, surprise, or mistake." Mueller v. Michaels, 101 Md. 191, 60 Atl. 485; Griffith v. Adams, 95 Md. 170, 52 Atl. 66; Coulbourn v. Boulton, 100 Md. 350, 59 Atl. 711; Gemmell v. Davis, 71 Md. 458, 18 Atl. 955. When, as in the present case, a motion to set aside a judgment is made after the term at which it was rendered, the proof of fraud, surprise, or mistake must be clear and convincing. Abell v. Simon, 49 Md. 318; Smith v. Black, 51 Md. 247; Siewerd v. Farnen, 71 Md. 627, 18 Atl. 968. There being an absence from the record before us of proof of any of the grounds whose existence is essential to warrant the vacating of the judgment, the learned judge below erred in passing the order striking it out, and that order must be reversed. The appeal from the order refusing to require the plaintiff to furnish security for costs must be dismissed. That order was not final in its nature, nor did it settle any substantial right of the appellant or deny to it the means of further defending the suit. Gittings v. State, 33 Md. 461; Chappell v. Funk, 57 Md. 479. Furthermore, it does not appear from the record that the plaintiff is in fact a nonresident of the state. It is so stated in the application for the rule for security for costs, but the application was made ex parte, and was not sworn to nor accompanied by admission, affidavit, or proof of the fact of his alleged nonresidence. Order striking out the judgment reversed, with costs. Appeal from the order refusing to lay rule security for costs dismissed, with costs. (105 Md. 326) REILLY et al. v. BRISTOW et al. (Court of Appeals of Maryland. April 2, 1907.) 1. WILLS-NATURE OF ESTATES CREATED. Testator made a gift to a son and two daughters, and provided that on the death of the survivor of them the property should then be divided between "the children the lawful heirs of my aforesaid children." Held, that the rule in Shelley's Case was inapplicable, and testator's children did not take a life estate in possession and an inheritance in remainder. [Ed. Note.-For cases in point, see Cent. Dig. vol. 49, Wills, §§ 1372-1374, 1377.] 2. SAME CONTINGENT ESTATES. A testator made a gift to his son and two daughters, and declared that, on the death of the last survivor of them, the property should be divided between "the children the lawful heirs of my aforesaid children." Held, that the gift to the grandchildren was a contingent remainder, which could not become vested unless there were living at the time of the death of the last surviving child of the testator children of the testator's three children. [Ed. Note.-For cases in point, see Cent. Dig. vol. 49, Wills, §§ 1488, 1495, 1498-1499, 1502, 1503.] Appeal from Circuit Court No. 2 of Baltimore City; Pere L. Wickes, Judge. Bill of interpleader against Helen J. G. Reilly and another and William H. Bristow, executor of Frederick H. Griffin, deceased, and others, for the construction of the will of John A. Griffin, deceased. From a decree construing the will, Helen J. G. Reilly and another appeal. Affirmed. Argued before BRISCOE, BOYD, PEARCE, SCHMUCKER, BURKE, and ROGERS, JJ. Michael A. Mullin, for appellants. C. Ritchie, for appellees. Albert PEARCE, J. This case involves the construction of the will of John A. Griffin, of Philadelphia, Pa., who died in September, 1902. The clause here in question is as follows, the punctuation being exactly as it appears in the record, and that being, as we are informed by counsel, just as it appears on the original will: "I give, devise, bequeath and desire that all the dividends, interest, rents and net income derived from my aforesaid estate or property shall go to and be divided equally between my son Frederic Hintze Griffin and my daughter Annie Hintze Griffin until my daughter Helen Julia Griffin Reilly wife of Colonel James William Reilly, United States Army, becomes a widow, whenever my said daughter Helen Julia Griffin Reilly becomes a widow then in that case all the said dividends, interest, rents and net income derived from my aforesaid estate or property to be divided equally between my son Frederic Hintze Griffin my daughter Annie Hintze Griffin and my daughter Helen Julia Griffin Reilly if either my son Frederic Hintze Griffin or my daughter Annie Hintze Griffin die then in that case all the said dividends, interest, rents and net income derived from my |
