Allers, Trustee v. LEITCH, EXEC.
395 Prescott, J., filed the following concurring opinion. In this suit, the appellant, plaintiff below, entered suit in dual capacities: one, as trustee of an alleged trust; and two, as next friend of his minor children. The suit was instituted against an executor, and the appellant had made a deposition which contained statements made by, and transactions that he had had with, the testatrix; and this deposition was offered into evidence at the trial. Seasonable objection having been made thereto, under the provisions of sec. 3 of Art. 35 of the Code the court declined to admit the deposition into evidence.
The appellant conceded that a trustee is such a party to a cause as to render inadmissible the trustee’s testimony under the above section; but argued, that because he brought suit also as a next friend, it was admissible. The majority opinion decided the question of the admissibility of the deposition by determining whether or not one who sues as a next friend is such a party to the suit as to come within the terms of the above named section. The appellant conceded that he was barred from giving evidence as a result of his being a trustee, and it is axiomatic that by simply joining himself as co-plaintiff as a next friend, he could not lift that bar. Consequently, that portion of the opinion that decided that evidence given by a party who is acting as a next friend is excluded by the statute clearly seems unnecessary for a final and proper determination of the case, and purely advisory in nature.
Ordinarily, appellate courts do not do this. The general rule, subject to certain exceptions, is well stated in 5 C. J. S., Appeal and Brror, par. 1455 as follows: “Appellate Courts will generally not decide questions, such as abstract, moot, or academic questions, not directly involved in an appeal or not necessary or material to the determination of the cause, or questions the decision of which would not affect the result. * * *” See also Hopper v. Brodie, 130 Md. 443, 444 , 100 A. 644 ; Safe Dep. & Tr. Co. v. Balto. City, 135 Md. 54 , 107 A. 581 ; Forbes v. Littell, 138 Md. 211, 216 , 114 A. 55 ; Ehrhart v. Board, 169 Md. 668 , 182 A. 424 ; Davis v. State, 183 Md. 385, 389, 390 , 37 A. 2d 880 ; Staley v. Safe Dep. & Tr.
Co., 189 Md. 447, 457 , 56 A. 2d 144 . With this exception, I fully concur in the opinion.