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advancing years, is now controlled by delusions on the subjects indicated, and especially that of foreign missions; and that she is deprived of reason and judgment and is im
pelled to give nearly all of her property to foreign mission work to the exclusion of her relatives, who have had every reason to expect to be the natural objects of her bounty.
This application was supported by the petitioner's affidavit, and a writ was issued by order of the court directing the sheriff of Baltimore city to inquire by a jury “Whether the Said Jane B. Moore Bristor be SO far deprived of her understanding that she is altogether unfit and unable to goVern hel'Self or to manage her affairs.” A jury of 14 members was impaneled, and, after a prolonged and contested hearing, 12 of the jurors, being a sufficient number under the law (Alexander's Chancery Practice, 224), joined in a finding that MrS. BriSt0r WaS Of unsound mind and incapable Of the government Of herself or the management of her property. After the return of the inquisition to the circuit court, a motion. To quash was filed by Mrs. Bristor upon various grounds, of which the only ones necessary to be considered were that the inquisition was tried and heard by the sheriff's deputy and not by the sheriff in person, and that the finding was against the evidence and the weight of the evidence adduced before the jury. A Complete Stenographic record was kept of all the testimony taken at the inquisition and was filed in the court below as part of the proceedings. Upon the evidence thus presented the court sustained the finding of the jury, confirmed the inquisition, and appointed a COmmittee to aSSume control of Mrs. Bristor's person and estate. In the oral opinion of the learned judge who passed the decree his conclusion was stated, as to the two specific objections we have mentioned, that the verdict of the jury was correct on the evidence, and that no Satisfactory authority had been ShoWn for invalidating the inquisition, on the ground that the sheriff did not personally preside, in view of the long-established practice in Baltimore city for the chief deputy to conduct proceedings of this nature.
 The first question we have to determine is whether the deciee confirming the inquisition can be reviewed by this court; a motion to dismiss the appeal having been filed on the theory that the action of the Court below is final.
Section 107 of the Chancery article (16) Of the Code provides: “The Court Shall have full power and authority, in all cases, to superintend and direct the affairs of persons non compotes mentis, both as to the care of their persons and the management of their estates, and may appoint, a committee, or a trustee or trustees, for Such perSons, and may make Such OrderS and decrees respecting their persons and estates as to the court may seem proper.”
IN RE BRISTOR'S ESTATE
It is provided by article 5, § 26, of the Code, that: “An appeal shall be allowed from any final decree, or order in the nature of a final decree, passed by a court of equity, by any one or more perSons parties to the suit. * * * *
While we have found no instance of an appeal to this court from a decree ratifying an inquisition of lunacy, there are cases in which appeals from orders refusing to Supersede inquisitions, where restoration to Sanity Was claimed, or to rescind the decree Of Confirmation for alleged irregularity in the proceedings, have been entertained. Johnson V. Safe Deposit Co., 104 Md. 460, 65 Atl. 333: Greenwade v. Greenwade, 43 Md. 313; Royal Arcanum v. Nicholson, 104 Md. 472, 65 Atl. 320.- The only statutory authority under which the right to prosecute such appeals could have existed is that contained in the Section last cited. In Tome V. Stump, 89 Md. 264, 42 Atl. 902, the right of appeal, under this section, from an order appointing a committee for an habitual drunkard, Was distinctly recognized. The power to supersede the inquisition is derived from the same statutory source as the power to set it aside originally. In every such instance the judicial authority described in the section quoted is as “comprehensive as language can make it.” Estate of Dorney, 59 Md. 69. The court may refuse to issue a commission, even in a case of undoubted insanity, if such refusal appears to be for the best interests of the person affected. Rebecca Owings Case, 1 Bland, 293. And the inquisition may be set aside or superseded if the party has been improperly found to be a lunatic. Alexander's Chancery Practice, 227, 238. The judgment of the court may be based upon depositions, or the respondent may be discharged after a personal examination. If the court is conVinced of the party's sanity, it should not hesitate to Supersede or Set aside the inquisition. This procedure is independent of the right of the alleged lunatic to traverse the finding and to have the issue as to his sanity determined by a jury of the county upon a trial before the court. Id. The controlling question to be determined by the . court, upon motion either to quash or to Supersede, is whether the person alleged to be of unsound mind is in fact incapable of managing his person or estate. A finding of inSanity by the jury is advisory, and is a prerequisite to an adjudication by the court to that effect; but it is not conclusive as against the objection of the party protesting his competency and invoking the court's own judgment upon this vitally important question. We See no reaSOn tO doubt that a decree passed in the exercise of Such a general authority and jurisdiction is a proper subject of review under the terms Of the Statute giving the right to any of the parties to a suit to appeal to this court from any final decree Of a Court Of equity.
It is to be observed that the Code, while conferring upon courts of equity general jurisdiction with respect to persons non Compotes mentis, does not prescribe the method by which the incapacity shall be ascertained. The course of procedure leading up to an adjudication of mental unsoundness remains as it existed, independently of statute, under the English practice, whose origin and theory are fully and clearly discussed in Hamilton V. Traber, 78 Md. 26, 27 Atl. 229, 44 Am. St. Rep. 258. The decree confirming the inquisition in this case was therefore not passed in pursuance of a special and limited jurisdiction created by statute, and the preSent question is not affected by the rule that in such proceedings a right of appeal does not exist unless it is Specially Conferred. Jackson V. Bennett, 80 Md. 76, 30 Atl. 612; Textor V. B. & O. R. R. Co., 107 Md. 223, 68 Atl. 493.
The cases in other jurisdictions cited to Support the motion to dismiss the appeal were mainly concerned with prescribed statutory procedures Which Were found not to contemplate any appellate review.
 Another preliminary question to be determined is that relating to the conduct of the inquisition by the deputy sheriff. It is conceded that the deputy who presided has held his office for many years and is cuStomarily assigned to duties of this nature under all writs of inquiry. There is nothing in the record to indicate that any objection to his serving in this capacity was made at any time during the progress of the inquisition. For this reaSO11, and in View of the long-established practice in Baltimore City, and in at least one of the counties, as we are informed, to have the sheriff's deputy preside On Such occasions, We should be Very strongly disposed, even in the absence of authority, to affirm the action of the court below in Overruling the objection now under Consideration. But We are Satisfied upon precedent and principle that the regularity of the proceedings was not affected by the fact that they were conducted by the deputy Sheriff. In Tillotson V. Cheetham, 2 Johns. (N. Y.) 63, an elaborate opinion by Chief Justice Kent discussed the question now preSented. In that case a motion was filed to Set aSide an inquisition on the ground of its execution by the sheriff's deputy. “This,” said the learned jurist, “appeared to me upOn the argument to be a novel objection; for it has been usual to execute writs of inquiry before the deputy with as little hesitation as before the sheriff. * * * The deputy is an officer coeval in point of antiquity With the Sheriff and is recognized in the most ancient Statutes. * * * The Creation of deputies arose from an impossibility of the sheriff's performing all the duties of his office in perSon. The poWeTS Of the deputy have consequently been ascertained at an
to test his authority is declared in the case of LeVett W. Farrar, CrO. Eliz. 294, in Which the court Said that if a Writ is directed to the sheriff by the name of his office, and not by a particular name, and doth not expressly command him to execute it in person, the undersheriff may execute it. * * * There are numerous cases within the circle Of the Sheriff's duties in Which these inquests of office are requisite, and in which no doubt has been entertained that a deputy was competent to Summon a jury and take the inQuest, although the objection would equally go to every inquest in every possible case. . * * * The CaseS in Whi(‘h the Sheriff must personally preside at the inquisition are all special cases in which the writ requires the personal attendance of the Sheriff.” The Writs relating to inquiry of Waste and redisSeisin are mentioned as instances in which the attendance of the Sheriff is Commanded in propria perSona, and the conclusion is Stated that, except in cases where the statute Or the Writ itself directs the Sheriff to attend in person, “there is no case in which a Writ of inquiry may not be executed by a deputy.” In the present case there is no direction for the execution of the writ by the sheriff perSOnally. In Turner V. Holtzman, 54 Md. 159, 39 Am. Rep. 361, it was held that a deputy sheriff duly appointed possesses such authority as the sheriff himself may exercise. It is argued that the duty of presiding at an inquisition involves the performance of judicial functions, Such as the determination of questions as to the admissibility of evidence, and that Such authority cannot be delegated by the Sheriff to a Subordinate Officer. In Tillotson v. Cheetham, supra, it was complained that the deputy sheriff who officiated had improperly excluded the testimony of Certain Witnesses; but the court nevertheless sustained the regularity of the proceedings. It was held that the duties were ministerial, as they required no judicial decision upon the law concluding to a judgment. This principle was referred to with approval in Obart V. LetSon, 17 N. J. LaW, 7.8, 34 Am. Dec. 182. In Wroe v. Harris, 2 Wash. (Va.) 129, where a writ of inquiry was held to have been properly executed by a deputy, it was said: “The inquisition is the finding of the jury, not the judgment of the sheriff. It is returned to the Court from Whence the Writ emanated, and it is there finally decided upon.” In the execution of such a writ the practice is for the presiding officer to rule upon objections to the admissibility of evidence. This doubtless involves the exercise of judgment and discrimination, but neither the action of the Officer nor the finding of the jury constitutes a final adjudication. The effective disposition of the question of sanity with which the inquiry is concerned iS committed to the decree 0f the court out of which the writ issued, and no
person or property upon a charge of lunacy unless the court, after consideration of all objections to the course and result of the investigation, is satisfied that no injustice has been done and that the party is in fact of unsound mind. All the rights of the person whose mental condition is under examination are thus afforded ample protection as against any errors of the officer in charge of the inquisition. The objection to the proceedings on the ground that the writ was executed by the deputy sheriff was properly overruled. [3, 4] The evidence upon which the jury reached its conclusion that the appellant Was insane must now be considered. In disCuSSing this feature of the case we fully appreciate the fact that the jury had the Opportunity to observe the appearance and demeanor of Mrs. Bristor during the protracted hearing and while she was being interrogated as a witness. In many instances this might be an important consideration With a court of review in reaching a conclusion as to whether the jury's finding should be confirmed, but we are not at liberty to give it controlling weight in the case before us because of the presence here of What appears to us to be conclusive evidence of the appellant's competency to care for her person and estate. It is evident from the record that Mrs. Bristor is a Woman of exceptional business ability, and it is conceded that there is no occasion to interfere with her personal liberty. The specific charge is that She is afflicted with a mania on the subject of Christian missions, and the present proceeding was induced by her proposal to contribute a portion of her property to that Cause. Her estate consists principally of ground rents and produces an annual income estimated to be at least $4,700. In the letter from which we have quoted she proposed to convey $1,000 of the rents to the Board of Foreign Missions of the Presbyterian Church and about an equal amount to her son for life with remainder to the same board, and indicated also her intention to make a later disposition of the residue of her estate in favor of home and foreign missions. Deeds Were Subsequently executed conveying to the church boards representing both missions ground rents having an aggregate annual value of about $3,000. These conveyances have not been recorded, but are held by the grantees to abide the result of the present litigation. While they dispose of a considerable part of the appellant’s property, it is clear that they were not prompted by any inSane impulse or delusion, but were executed by her in the gratification of an earnest, intelligent, and generous interest which she has manifested for years in the beneficent objectS for Which She now desires, as She approaches the close of her life, to make a final provision out of her estate. In determining upon this disposition the record
IN RE BRISTOR'S ESTATE
er is not a Protestant.”
shows that she has given careful consideration to her own welfare and to that of her Son. There is no reason to doubt the correctness of her estimate that the estate She has reserved is ample for their continued support in the manner in which they have been accustomed to live, and the reasons She assigns for not giving her son more than a life interest cannot under the evidence be regarded as irrational. The testimony is so voluminous that it Would be impracticable, even if it Were deSirable, to discuss it in detail; but a reference to the hypothetical question propounded to Dr. Robert M. Bruns, the only alienist produced by the petitioner for the Writ, Will afford an illustration of the grounds upon which the theory of insanity was based. The question begins by describing the subject of the inquiry as a widow of about 70 years of age who has suffered considerable hardship by reason of exposure in her earlier years. It then states that when excited she quotes Scripture. There is nothing in the record to suggest that this recital has any material significance. The next statement is that the person referred to “declares that the newspapers in their efforts to froWn down everything of the kind have regarded missions in the Same light as if a red flag were waved at a mad dog.” The only declaration to this effect which Mrs. Bristor appears to have made occurred in the course of her examination by her SOn’s counsel as a WitneSS before the jury. When describing the purpose of the disposition she had made to the Home Missionary Society as being “for the benefit of friendless orphan children in order that they may get an education in industrial schools,” she made use of Some Such expression as that quoted. There was no inquiry as to whether she had not in fact read in one or more newspapers articles in opposition to the Cause in Which. She Was interested, but the expert to whom the question was addressed was expected to assume the contrary and to attribute the Statement to an insane delusion. The hypothesis then continues: “She believes without reasonable foundation that since she has attempted to get rid of all or a majority of her property she has been tortured and tormented as if she were a 11erce animal.” In her impatience and reSentment. On account Of the persecution to which she claimed that she was being Subjected in having her sanity questioned and her private affairs made public, the appellant exclaimed in the COurse of her examination as a witness: “I have been tortured and tormented as if I Were a fierce animal.” The next assumption is that “she has the delusion, without foundation, that a proceeding to test, her mental conditon has been instituted and carried on unjustly because one of the counsel for the petitionThe appellant had complained of what she regarded as an unnecessary repetition of questions propounded to her by the counsel for the petitioner, and in the nervous StreSS Of her examination she declared: “There is prejudice at the bottom of this, and that prejudice is clearly shown.” Upon being asked for an explanation she referred to the fact that the examining counsel was not a Protestant, and in reply to a further question She Stated her belief that she was “having all this” because he was prejudiced. That this statement was due merely to momentary irritation, and did not represent a Spirit of unreasoning bigotry, is shown by her later asSertion, to which, however, the hypothetical question does not refer, that: “Catholics bebelieve in them (foreign missions) just as much as Protestants, and the noblest SpecimenS Of foreign missionaries have been the 'Jesuits Who have opened the veins of their arms and have taken the blood and Written their Willingness to go to the most forlorn and desolate places on earth, and greatly to their credit.” The question next describes the person under consideration as One Who “declares that an orderly court proceeding, conducted with proper decorum, is an inquisition of the Vilest kind, declares in a court proceeding that she thinks she is in a heathen country, swears without foundation in a court proceeding properly conducted that she has never knoWn One accused Of Stealing Or murder to be treated as she has been.” These recitals were intended to refer, to the following paSSages in the appellant's testimony: When preSSed as to her disposition of her property, she inquired: “Am I under an inquisition?” And, upon being told by her counsel that it Was So called legally, she Said: “It is an inquisition of the Vilest kind.” When it first developed that a copy of her letter from which we have quoted had been somehow obtained by the other side without her knowledge, she exclaimed: “I should think I was in a heathen country!” Later, in complaining of the repetition of a question, she said: “But I have no reason to be asked so many times. I have been in court many times, and I have never known a person, even one brought up for stealing or murder, to be treated as I am.” All this shows a high degree of indignation on the part of a nervous woman undergoing the ordeal of an examination which she understood to be predicated upon a charge that She Was insane; but such expressions as those just mentioned are entirely too inconsequential to support the inference to which they were directed in the hypothetical statement. The next assumptions in the question are: “She declares that she does not know whether she has made a will or not, and if She has made a will she does not know Whether it has been destroyed or not, thinks that her son was murdered when she knows that he died of disease.” The appellant'S
er she ever made a will, although she may have made one some time ago, and that, if She did, it was probably destroyed. The reference in the question to the death of another son of the appellant involves a misconception of her testimony. This son, William, died away from home, and his mother insisted that she had been kept in ignorance of his illness, as the result of Which She thought that he did not have the care he required. In using the term mentioned in connection with his death, she explained: “When a person is ill and you know they have not absolute necessities and if they keep help from him I call it murder, or very near kin to it.” The hypothetical question then concludes: “She swears that her son, of about 40 years of age, is a prey in the hands of a bad woman and a bad man, and Cannot Say Who such perSons are, declares, in answer to a question, that her son would do anything at all that WaS Contrary to what she Wants, and in her communication written a short time before stated that he was a perfect man, a dutiful Son, has considerable means, and lives in a parsimonious style and in a condition much below the average condition in which persons of her means live, seldom goes out alone, and then only for a short distance and for a brief period of time, apparently fearing that some harm will happen to her; What would you say was the mental condition of a woman such as I have described?” There is no attempt in the question to dispute the correctness of the appellant's belief that her son is being imposed upon by designing persons, notwithstanding her inability to identify them, and it does not mention the fact that the criticism of her son to which it refers was made after he had opened her letter to the Missionary SoCiety and had brought his mother into court under an inquisition as to her sanity. The suggestion that she avoids going out beCause of fear that she may be harmed has no proper Support in the evidence. The testimony showed that she lived simply but Comfortably, and that she was generous in her donations to relatives. The hypothesis in general is erroneous in presenting out of their proper relation the circumstances supposed to indicate mental incapacity. The Berry Will Case, 93 Md. 560, 49 Atl. 401. In reply to the question the alienist said: “She is of unsound mind.” His attention was then directed to certain facts mentioned in the testimony of other witnesses, but in Our judgment they have not sufficient probative force to require separate discussion. The opinion of the witness as to the appellant's insanity was then reiterated, and its form was described as religious paranoia. He stated that he could not testify merely from his observation of Mrs. Bristor, during the whole of the hearing, that she was
A number of nonexpert Witnesses were produced by the petitioner. Some of these expressed the opinion that Mrs. Bristor was not of Sound mind. It is not necessary to Set forth the results of our investigation as to the sufficiency of the grounds for these expressions because the testimony of other Witnesses, who, in Our judgment, were in a much better position to form an accurate Opinion as to her Sanity, has satisfied us that she possesses the requisite capacity to manage her affairs. The real estate brokers with whom she has conducted important and frequent negotiations for a number of years, the bank officials who have come in contact with her weekly for a long period in conInection With her financial matters and Who have loaned her money on her own name, the lawyer who has attended to her legal busineSS, and the justice of the peace before Whom she has brought suits for rents in arrear, all stated unequivocally that she is entirely rational and capable. Their testimony Was Supplemented by other convincing evidence to the same effect, including that of Dr. J. C. Clarke, superintendent of the Springfield HOSpital for the Insane, Who made a special and thorough examination of Mrs. Bristor, while the inquisition was pending, to ascertain her mental condition, and whose opinion is positive in favor of her competency. She told Dr. Clarke that she intended to provide for her son, as she would not disinherit her “own flesh and blood,” but said that she was carrying out her mother's Wish in making the deeds to the missionary Societies and that this had been her “life object.” *
There are other features of the testimony On both sides Which Were considered of importance by the counsel for the respective parties, but to which we cannot particularly refer without unduly extending this opinion. Upon the evidence as a whole We find no just occasion to deprive the appellant of the control of her estate and thus deny her the privilege of making any provision whatever in support of the great religious and philanthropic enterprises to Which she has been SO long and Consistently devoted.
Decree reversed, with costs, and inquisition quashed.
(115 Md. 520)
STATE, to Use of BOUNDS, v. GRAHAM et al.
(Court of Appeals of Maryland. April 19, 1911.)
1. TRUSTS (§ 387*) – ACTION ON TRUSTEE'S BOND-ALLEGATIONS OF DECLARATION.—NATURE OF ACTION. In a suit by the state, “at the instance and for the use of B.,” who was an administrator, on the bond of the trustee of the estate, to recover an overpayment made to the trustee by the administrator in the settlement of his ac
count, the declaration alleged that the trustee's audit of distribution allowed plaintiff a certain sum, which was “the amount overpaid by the said B. as administrator; * * * that is to say, paid by him as such administrator beyond and above the assets which came into his hands as such administrator,” and that the trustee had due notice of the Original ratification of the audit, and demand was made before the institution of this suit for payment of the sum “so ordered to be paid to the said B.” Held, that the equitable plaintiff did not sue as administrator, but as an individual, for the sum audited to him as such by the trustee.
[Ed. Note.—For other cases, see Trusts, Dec. Dig. § 387.*]
BOYD, C. J. A demurrer to the amended declaration filed in this case was sustained by the lower Court, and judgment Was entered for the defendants for COSts. From that judgment this appeal was taken.
The Suit was brought in the name of the State, “at the instance and for the uSe Of J. Windsor Bounds,” by his attorneys, on a trustee's bond executed by the appellee. The declaration alleges that Mr. Graham Was appointed trustee and gave the bond, which is set out in full, and is subject to the usual conditions in bonds of that character; that the trustee became possessed of a large amount of the assets of the trust estate, and distributed the funds among the parties entitled thereto by an audit, which was duly
*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes