Bogart v. Willis

Digges, J., delivered the opinion of the Court. The appeal in this ease is from a judgment of the Superior Court of Baltmore City in a suit wherein the appellant was plaintiff and the appellees, executors of the last will and testament of John A. Calhoun, deceased, were defendants. The case was tried before the court sitting as a jury. At the close of the plaintiff’s case the court instructed itself, sitting as a jury, that the plaintiff had offered no legally sufficient evidence entitling her to recover and its verdict must be for the defendant.

The facts out of which the controversy arises are: Henry A. Calhoun, a resident of Canada, died in 1912 leaving a last will and testament and codicils thereto*, by the terms of which the plaintiff Henrietta Bogart was* bequeathed an outright legacy of $15,000 and in addition thereto* there was created a trust *of $25,000, the income from which was to be paid to Henrietta Bogart so long as she lived, and after her death was to revert to the estate* of Henry A. Calhoun and pass under the residuary clause of his will to John A. Calhoun. The trustees of this $25,000 were John A. Calhoun and Edmund G. Kaye, who were* also named as executors in the will. John A. Calhoun and Henrietta Bogart were brother and sister, and nephew and niece respectively of Henry A. Calhoun, the testator. Shortly after the death of the testator, it appears, that Edmund G. Kaye, one of the ³⁹⁶ executors and trustees, 'died; and from that time until July 11th, 1926, the date of the death of John A. Calhoun, he was the sole executor and trustee under his uncle’s will.

John A. Calhoun also left a will, of which the defendants herein were the executors, and by the provisions of which, after the payment of certain specific legacies, the whole of his estate, amounting to about $200,000, was devised and bequeathed to his widow for life, and after her death to be divided into two equal parts, one of which was devised to the children of his sister Henrietta Bogart, share and share alike, and the other of which was devised and bequeathed to the children of George F. Craig. The record discloses that after the death of John A. Calhoun there was considerable correspondence between his widow and his executors on one side, and %he plaintiff and her attorneys on the other, v beginning in August, 1926, and continuing until about the time of the institution of the suit, which was filed on July 3rd, 1928. The declaration contained the money counts, and a special count setting forth that the defendants had qualified as executors of the last will and testament of John A. Calhoun, and had received all the property belonging to his estate, subject to the obligation to pay his debts, and further, that John A. Calhoun was at the time of his death indebted to the plaintiff in the full sum of $15,000, with interest from the 1st of July, 1926, and that there was- more than sufficient property in the hands of the executors with which to pay said indebtedness, and also that they had stated an account showing more property than necessary to pay said debts. The defendants filed the general issue plea, and in addition a plea setting forth that they, after the death of John A. Calhoun, were informed of the claim of the plaintiff, that it was disputed and rejected by them in writing, and that the plaintiff did not, within nine months after the claim was rejected, bring suit thereon.

There was an additional plea of three years limitation, which was withdrawn at the trial. On July 31st, 1928, the plaintiff filed the account, with a double affidavit, one being made by herself and the other by her husband. The record also discloses that, since the death ³⁹⁷ of John A. Calhoun, Charles G. Baldwin has been dnly appointed substitute trustee under the will of Henry A. Calhoun, in place of John A. Calhoun, deceased; and there is no dispute that the $25,000, constituting the trust fund under which Mrs. Bogart had a life estate, either has been or will be paid over to the substituted trustee by the executors of John A. Calhoun. The real dispute in the case is as to whether or not John A. Calhoun, at the time of his death, and therefore his executors now, are indebted to- Henrietta Bogart in the sum of $15,000, the specific outright legacy bequeathed her by her uncle Henry A. Calhoun, with interest thereon from July 1st, 1926.

The defendants by their pleas deny this indebtedness, and contend that the plaintiff has not established the debt by legal evidence. This contention was sustained by the lower court, as evidenced by the granting of the defendants’ prayer. Before passing upon the exceptions presented by the record, wo feel constrained to call attention to the irregular and unsatisfactory state of the record in presenting the rulings of the lower court which we are called upon to review. Perhaps this is due to some extent to the fact that the case was tried before the court sitting as a jury, and for this reason the rulings were not as decisive and clean-cut as would have been the case had it been tried before a jury.

Be this true or not, it presents a record in this court from which it is extremely difficult to determine the precise rulings covered by the exceptions. The depositions taken in Canada were read in open court, question and answer by question and answer, and during the reading of which the record does not disclose that there was any objection made to any of the testimony. At the close of this reading, the court, in what practically amounts to an opinion, covering more than two-pages -of the record, undertakes to state from his recollection all of the questions involved in the objections to testimony, and to summarize thei rule in respect thereto, and concludes-by saying: “The defendants then moved that the deposition of William Boyer be stricken out and that those parts of the deposition of the plaintiff which related to her transactions ³⁹⁸ (except contents of checks) or conversations with the defendants’ decedent be stricken out, exceptions having been previously noted by. defendants to their admission, and the court granted the motion of the defendants and struck out the depositions as aforesaid, and the action of the court in granting this motion of the defendants the plaintiff excepted.” Such a mode of ruling upon the admissibility of ■evidence and the exceptions thereto' does not meet with the •approval of this court. It requires us to go over this testimony and determine which of it was in fact objected to, and ruled out.

This could only be done by exercising our discretion as to whether a given question and answer was in fact testimony as to a statement made by the deceased or as to a transaction had with the deceased, without any certainty that those in fact were the questions and answers to which objection had been interposed and sustained by the lower court. ■Such a procedure would be the exercise of original and not •..appellate jurisdiction by this court. The plaintiff sought to establish her claim by -putting in •evidence the will of her uncle, Henry A. Calhoun; by an account with a double probate; by the testimony, taken under commission, of Thomas W. Boyer, the manager of' the Royal Bank of Ganada, at Edmonton, South Alberta; her own testimony, taken in the same way; -and the testimony of Mr. Luther M. R. Willis given at the trial in Baltimore. The witness Boyer produced fourteen deposit slips in connection with the account of the plaintiff in his bank, being account Ho. B-251. 'These deposit slips extended from January 16th, 1925, to June 5th, 1926.

He explained that these deposit slips indicated that the proceeds, or part of the proceeds, of certain cheeks, each in the amount of $200, coming from the United States, had either been deposited in whole to the account of the plaintiff,. or some portion of the check had been received in cash and the balance deposited. The witness further stated that he did not look after the deposits himself, except by checking them at the end of each day, which he did; that the only personal knowledge he had in the matter was that gained from checking the deposit slips ³⁹⁹ at tlie end of the day; that he neither received the deposits himself nor saw the money, checks, or drafts represented by the deposits, and that, he had no knowledge of the source from which the money came. He also produced fourteen copies of these deposit slips and stated that the originals which he had previously produced were the property of the batik, which tbe bank did not allow out of its, possession, and stated that he had compared the copies with the originals, and found them to be tine copies of the originals. He then offered to put in the copies as exhibits, which were marked “Exhibit Ho. 1” and attached to his, deposition.

This, evidence was excluded by tbe trial court, upon objection by tbe defendants, and forms one of the exceptions in the record. In passing upon this point, the lower court said: “I know of no principle involved which permits the introduction of secondary evidence in cases of this sort. I do not know that copies have, ever been permitted except in the ease of public documents.” The defendants contend this ruling to he correct, upon the authority of Dick v. Biddle, 105 Md. 308 ; Stevens v. Northern Central Ry. Co., 129 Md. 215 ; Cohen v. Bogatsky, 149 Md. 134 ; and Shockley v. Penna.

R. Co., 109 Md. 123 . There can be no doubt that these authorities correctly state the general rule to be that copies of papers are not competent evidence. In the case of Shockley v. Penna. R. Co., supra, it was held, in an action against an intermediate carrier, to-recover damages for its, delay in the transportation of freight,, that a memorandum showing the time of arrival of ears carrying the freight at certain points, which memorandum is-a copy and not an original, is, not admissible in evidence.

To like effect might he cited many other decisions, of this: court. But iiere the witness, did produce the original deposit slips, and his testimony was in respect to the, originals. After completing his testimony, he produced the copies of these deposit slips, and stated that he had compared them with the originals and found them to be correct; further stating that the originals were the property of the bank and could not be taken from its possession. The defendants were represented ⁴⁰⁰ at the taking of this testimony by counsel, who must have seen the originals of these deposit slips and had full opportunity to compare the copies with the originals.

Under these peculiar circumstances; we think there was error in rejecting the copies offered at the trial; and also error in striking out the testimony of Boyer, which was- not based on the copies but on the original deposit slips. One of the reasons for the rule excluding secondary evidence in cases of this kind is the possibility of error in the transcription, or in other words, because it is not the best evidence of the fact sought to be shown by the paper; but, under the circumstances surrounding this case, we cannot see any difference between it and a case where a witness had appeared before the trial court with the original deposit slips, and, after testifying in respect to the originals, had left copies in order that he might take the originals away, the adverse party having full opportunity to verify the accuracy of the copies. And -again, as stated, the 1 witness did not testify from the copies, or in respect to the •copies, but from the originals. It is also to be borne in mind that notice had been given to the defendants to- produce the checks, the deposit of which these represented, and these checks were not produced.

This witness was the manager of the bank, and testified that these deposit slips were made in the usual course of business by employees of the bank, or depositors', and were cheeked over by him at the end of each day’s business, comparing them-with the records of the bank. We think, under such circumstances, even though he did not make out the deposit slips himself, he is competent to testify to the meaning of notations appearing on the slips. The contention of the plaintiff is that her brother, John A. Oalhoun, up until the time of his death, sent her a cheek each month for $200, which is six per cent, on $40,000, the amount of the trust fund and the specific legacy bequeathed her by her uncle, and which she claims was in the hands of her brother, the executor of her uncle’s will, at the time of her brother’s death; and, she being disqualified to testify as to statements made by or. transactions had with the deceased, she was attempting to ⁴⁰¹ show by other testimony that there was deposited to her account each month a check for $200, drawn by a person in the United States. In respect to the contention that the double probate of the account is prima facie evidence of the claim therein stated, the lower court took the view that, because one of the parties who made the affidavit was the plaintiff, who was seeking to recover the amount from a decedent’s estate (she being disqualified, under section 3 of article 35 of the Code, to- testify as to any statement made by the deceased, or concerning any transaction had with the deceased in respect i» the matter in controversy), the probate was not in effect and substance a double probate.

We are unable to sanction this view. Section 93 of article 93, concerning proofs of claims against a decedent’s estate which an administrator may discharge without risk to himself, provides,; “The vouchers or proofs of any claim on open account shall be a certificate of an oath taken by the creditor since the death, endorsed on or annexed to the account, that The account as, stated is just and true, and that he hath not received any part of the money stated to be due, or any security or satisfaction for the same, except what (if any) is credited,’; and moreover, the account shall appear to have been proved as open accounts are required to be proved by article 35, title ‘Evidence.’ ” And section 51 of article 35, title “Evidence,” under “Proof of Accounts,” provides: “The oath of any disinterested credible witness, taken before any judge or justice of the peace of this State, or before any officer of the State or county where such witness may be at the time, having authority to administer an oath therein, and certified as aforesaid, proving the payment or delivery of any money * * * shall be legal evidence in any court or before any justice of the peace of this State to charge the person to whom such money * * * shall be so proved to be, delivered * * *; provided, the party bringing suit for such money * * * shall, on or before the first day of the trial term of the court, make oath as aforesaid before some judge or justice of the peace of this State, or before some officer of the state or country where he may be at the time, having ⁴⁰² authority to administer an oath therein, and certified as aforesaid, that he believes the money, goods, merchandise1, effects or chattels charged in the account to which such oath shall be annexed, were bona fide delivered as charged * * * and that he hath not, to his knowledge or belief, received any payment or satisfaction * * * more than credit is duly given for in and appearing upon said account, nor hath he received any security for the same, and that the amount charged and claimed is justly due, according to the best of his knowledge and belief.” It seems clear from a reading of these two sections, the first of which deals specifically with, the proof of claims against a decedent’s estate, that the creditor or person suing is competent, and is one of the necessary parties, to make this affidavit, which, together with the affidavit of a disinterested credible witness, constitutes what is generally spoken of as the double probate; and it follows, therefore, in our opinion, that the plaintiff here was not disqualified to make such an affidavit. The real question, however, on this point is: What effect does the double probate have? In Jackson v. West, 22 Md. 82 , it was said: “First, as to the proof of the account.

This consists of the oath of William B. Jackson, one of the firm of Jackson Brothers & Company, and also' the oath of Joseph C. Jackson, a disinterested credible witness, the clerk and bookkeeper of the appellants, made and certified according to the requirement of the fourth section of the Act of 1785, chapter 46. This is sufficient prima facie proof to establish the account according to> the practice in this State. Strike v. McDonald, 2 H & G. 234; Maccubbin v. Cromwell, 2 H. & G. 458 ; Alexander’s Chanc. Prac., 132.” That was a case where ai petition had been filed in a trust estate and the property was about to be distributed, the trust having terminated, by a creditor praying the allowance of an account for necessities which had been furnished the life tenant, and which account was authenticated in the method prescribed by^ section 51 of article 35 of the Code.

The court, after holding that the probate of the account was suffi ⁴⁰³ cient prima fade proof thereof, went on to say: “But if the exceptions filed against this claim are to be considered as requiring! full proof, we think the evidence taken under the commission has supplied as full proof as such a claim is ordinarily susceptible of.” In the ease of Strike v. McDonald, supra, being a creditor’s bill, wherein the account was authenticated in the manner prescribed by the Oode, in dealing with this question Chancellor Bland said: “With regard to the proof of claims brought in by other creditors, it has been the practice^ in cases of deceased persons’ estates, to require no higher proof than such as would induce the orphans’ court to allow the claim according to the testamentary system, in case it were paid by the executor and administrator and no objections were made. * * * In cases of insolvency, under the acts of assembly which formerly referred such matters to the