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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 impelled to give nearly all of her property to foreign mission work to the exclusion of her relatives, who have had évery 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 herself 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. Bristor 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.

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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. 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 su

[1] The first question we have to determine is whether the decree confirming the inquisi-persede, is whether the person alleged to be tion 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."

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 to test his authority is declared in the case conferring upon courts of equity general ju- of Levett v. Farrar, Cro. Eliz. 294, in which risdiction with respect to persons non com- the court said that if a writ is directed to potes mentis, does not prescribe the method the sheriff by the name of his office, and not by which the incapacity shall be ascertained. by a particular name, and doth not expressly The course of procedure leading up to an command him to execute it in person, the adjudication of mental unsoundness remains undersheriff may execute it. *** There as it existed, independently of statute, under are numerous cases within the circle of the the English practice, whose origin and the- sheriff's duties in which these inquests of ory are fully and clearly discussed in Hamil- office are requisite, and in which no doubt ton v. Traber, 78 Md. 26, 27 Atl. 229, 44 Am. has been entertained that a deputy was comSt. Rep. 258. The decree confirming the petent to summon a jury and take the ininquisition in this case was therefore not quest, although the objection would equally passed in pursuance of a special and limited go to every inquest in every possible case. jurisdiction created by statute, and the pres* The cases in which the sheriff must ent question is not affected by the rule that personally preside at the inquisition are all in such proceedings a right of appeal does special cases in which the writ requires the not exist unless it is specially conferred. personal attendance of the sheriff." The Jackson v. Bennett, 80 Md. 76, 30 Atl. 612; writs relating to inquiry of waste and redisTextor v. B. & O. R. R. Co., 107 Md. 223, 68 seisin are mentioned as instances in which Atl. 493. 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.

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.

[2] 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 reason, 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

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 com

plained 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. in Obart v. Letson, 17 N. J. Law, 78, 34 Am. This principle was referred to with approval 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 The deputy 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 of the court out of which the writ issued, and no

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. *

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 powers of the deputy have consequently been ascertained at an

Md.)

IN RE BRISTOR'S ESTATE

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.

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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

afford an illustration of the grounds upon which the theory of insanity was based.

[3, 4] The evidence upon which the jury reached its conclusion that the appellant was insane must now be considered. In discuss-produced by the petitioner for the writ, will ing this feature of the case we fully appreciate the fact that the jury had the opportunity to observe the appearance and de- The question begins by describing the meanor of Mrs. Bristor during the protract- subject of the inquiry as a widow of about ed hearing and while she was being interro- 70 years of age who has suffered consideragated as a witness. In many instances this ble hardship by reason of exposure in her might be an important consideration with a earlier years. It then states that when excourt of review in reaching a conclusion as cited she quotes Scripture. There is nothto whether the jury's finding should be con- ing in the record to suggest that this refirmed, but we are not at liberty to give it cital has any material significance. The controlling weight in the case before us be- next statement is that the person referred cause of the presence here of what appears to "declares that the newspapers in their to us to be conclusive evidence of the appel- efforts to frown down everything of the kind lant's competency to care for her person and have regarded missions in the same light as estate. It is evident from the record that if a red flag were waved at a mad dog." Mrs. Bristor is a woman of exceptional busi- The only declaration to this effect which ness ability, and it is conceded that there Mrs. Bristor appears to have made occurred is no occasion to interfere with her personal in the course of her examination by her liberty. The specific charge is that she is son's counsel as a witness before the jury. afflicted with a mania on the subject of When describing the purpose of the disposiChristian missions, and the present proceed- tion she had made to the Home Missionary ing was induced by her proposal to contrib- Society as being "for the benefit of friendless ute a portion of her property to that cause. orphan children in order that they may get Her estate consists principally of ground an education in industrial schools," she rents and produces an annual income esti- made use of some such expression as that mated to be at least $4,700. In the letter quoted. There was no inquiry as to whethfrom which we have quoted she proposed to er she had not in fact read in one or more convey $1,000 of the rents to the Board of newspapers articles in opposition to the Foreign Missions of the Presbyterian Church cause in which. she was interested, but the and about an equal amount to her son for expert to whom the question was addressed life with remainder to the same board, and was expected to assume the contrary and indicated also her intention to make a later to attribute the statement to an insane dedisposition of the residue of her estate in lusion. The hypothesis then continues: "She favor of home and foreign missions. Deeds believes without reasonable foundation that were subsequently executed conveying to the since she has attempted to get rid of all church boards representing both missions or a majority of her property she has been ground rents having an aggregate annual tortured and tormented as if she were a value of about $3,000. These conveyances fierce animal." In her impatience and rehave not been recorded, but are held by the sentment on account of the persecution to grantees to abide the result of the present which she claimed that she was being sublitigation. While they dispose of a consider- jected in having her sanity questioned and able part of the appellant's property, it is her private affairs made public, the appelclear that they were not prompted by any in- lant exclaimed in the course of her examsane impulse or delusion, but were executed ination as a witness: "I have been tortured by her in the gratification of an earnest, and tormented as if I were a fierce aniintelligent, and generous interest which she mal." The next assumption is that "she has manifested for years in the beneficent ob- has the delusion, without foundation, that jects for which she now desires, as she ap- a proceeding to test her mental conditon proaches the close of her life, to make a has been instituted and carried on unjustly final provision out of her estate. In deter- because one of the counsel for the petitionmining upon this disposition the record er is not a Protestant." The appellant had

complained of what she regarded as an un-er she ever made a will, although she may necessary repetition of questions propound- have made one some time ago, and that, if ed to her by the counsel for the petitioner, she did, it was probably destroyed. The and in the nervous stress of her examina- reference in the question to the death of tion she declared: "There is prejudice at another son of the appellant involves a misthe bottom of this, and that prejudice is conception of her testimony. This son, Wilclearly shown." Upon being asked for an liam, died away from home, and his mothexplanation she referred to the fact that the er insisted that she had been kept in igexamining counsel was not a Protestant, norance of his illness, as the result of and in reply to a further question she stat- which she thought that he did not have the ed her belief that she was "having all this" care he required. In using the term menbecause he was prejudiced. That this state- tioned in connection with his death, she ment was due merely to momentary irrita- explained: "When a person is ill and you tion, and did not represent a spirit of un- know they have not absolute necessities and reasoning bigotry, is shown by her later as- if they keep help from him I call it mursertion, to which, however, the hypothetical der, or very near kin to it." The hypothetquestion does not refer, that: "Catholics be- ical question then concludes: "She swears believe in them (foreign missions) just as that her son, of about 40 years of age, is much as Protestants, and the noblest speci- a prey in the hands of a bad woman and mens of foreign missionaries have been the a bad man, and cannot say who such per'Jesuits who have opened the veins of their sons are, declares, in answer to a question, arms and have taken the blood and written that her son would do anything at all that their willingness to go to the most forlorn was contrary to what she wants, and in and desolate places on earth, and greatly to her communication written a short time betheir credit." The question next describes fore stated that he was a perfect man, a the person under consideration as one who dutiful son, has considerable means, and "declares that an orderly court proceeding, lives in a parsimonious style and in a conconducted with proper decorum, is an inqui- dition much below the average condition in sition of the vilest kind, declares in a court which persons of her means live, seldom goes proceeding that she thinks she is in a heath- out alone, and then only for a short disen country, swears without foundation in a tance and for a brief period of time, apcourt proceeding properly conducted that she parently fearing that some harm will haphas never known one accused of stealing or pen to her; what would you say was the murder to be treated as she has been." mental condition of a woman such as I These recitals were intended to refer to the have described?" following passages in the appellant's testi- There is no attempt in the question to mony: When pressed as to her disposition dispute the correctness of the appellant's of her property, she inquired: "Am I under belief that her son is being imposed upon an inquisition?" And, upon being told by by designing persons, notwithstanding her her counsel that it was so called legally, she inability to identify them, and it does not said: "It is an inquisition of the vilest kind." mention the fact that the criticism of her When it first developed that a copy of her son to which it refers was made after he letter from which we have quoted had been had opened her letter to the Missionary Sosomehow obtained by the other side without ciety and had brought his mother into court her knowledge, she exclaimed: "I should under an inquisition as to her sanity. The think I was in a heathen country!" Later, suggestion that she avoids going out bein complaining of the repetition of a ques- cause of fear that she may be harmed has tion, she said: "But I have no reason to be no proper support in the evidence. The tesasked so many times. I have been in court timony showed that she lived simply but many times, and I have never known a per- comfortably, and that she was generous in son, even one brought up for stealing or her donations to relatives. The hypothesis murder, to be treated as I am." All this in general is erroneous in presenting out of shows a high degree of indignation on the their proper relation the circumstances suppart of a nervous woman undergoing the posed to indicate mental incapacity. The ordeal of an examination which she under- Berry Will Case, 93 Md. 560, 49 Atl. 401. stood to be predicated upon a charge that In reply to the question the alienist said: she was insane; but such expressions as "She is of unsound mind." His attention those just mentioned are entirely too incon- was then directed to certain facts mentionsequential to support the inference to which ed in the testimony of other witnesses, but they were directed in the hypothetical state- in our judgment they have not sufficient ment. The next assumptions in the question probative force to require separate discusare: "She declares that she does not know sion. The opinion of the witness as to the whether she has made a will or not, and if appellant's insanity was then reiterated, and she has made a will she does not know its form was described as religious paranoia. whether it has been destroyed or not, thinks He stated that he could not testify merely that her son was murdered when she knows from his observation of Mrs. Bristor, durthat he died of disease." The appellant's ing the whole of the hearing, that she was

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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 connection 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)

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count, the declaration alleged that the trustee's audit of distribution allowed plaintiff a certhe said B. as administrator; * * * that is tain sum, which was "the amount overpaid by to say, paid by him as such administrator beyond and above the assets which came into his trustee had due notice of the original ratificahands as such administrator," and that the tion 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." administrator, but as an individual, for the sum Held, that the equitable plaintiff did not sue as audited to him as such by the trustee.

[Ed. Note. For other cases, see Trusts, Dec. Dig. § 387.*]

2. JUDGMENT (§ 479*)-COLLATERAL ATTACK— DECRETAL ORDER.

An order ratifying a final audit of a trustee and requiring him to pay a sum to one as an individual, and not as an administrator, is a decretal order, and cannot be collaterally atrecover such sum, by showing that the sum was tacked in an action on the trustee's bond to ordered to be paid to him as administrator.

[Ed. Note.-For other cases, see Judgment, Dec. Dig. § 479.*]

3. EXECUTORS AND ADMINISTRATORS (§ 513*) -ACCOUNTING OVERPAYMENT-RIGHTS OF ADMINISTRATOR.

An administrator may recover as an individual from the realty of an estate an amount overpaid by him in his accounting as administrator, if the payments were properly chargeable against the estate, being subrogated to the rights of the creditors whose claims he has paid.

[Ed. Note.-For other cases, see Executors and Administrators, Cent. Dig. §§ 2267-2291; Dec. Dig. § 513.*]

Appeal from Circuit Court, Wicomico County.

Action by the State of Maryland, to the use of J. Windsor Bounds, against Robert P. Graham and others. From a judgment sustaining a demurrer to the declaration, plaintiff appeals. Reversed, and new trial ordered.

Argued before BOYD, C. J., and BRISCOE, PEARCE, BURKE, THOMAS, PATTISON, and URNER, JJ.

Ellegood, Freeny & Wailes, for appellant. George W. Bell and Robert P. Graham, for appellees.

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, to Use of BOUNDS, v. GRAHAM state, "at the instance and for the use of J.

et al.

(Court of Appeals of Maryland. April 19, 1911.)

1. TRUSTS (§ 387*)-ACTION ON TRUSTEE'S BOND-ALLEGATIONS OF DECLARATION-NATURE OF ACTION.

Windsor Bounds," by his attorneys, on 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 In a suit by the state, "at the instance and the trustee became possessed of a large for the use of B.," who was an administrator, amount of the assets of the trust estate, and on the bond of the trustee of the estate, to re-distributed the funds among the parties encover an overpayment made to the trustee by distributed the funds among the parties enthe administrator in the settlement of his ac- titled 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

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