Boland v. Ash

Offutt, J., delivered the opinion of the Court. The appeal in this case was taken from an order passed by the Circuit Court of Baltimore City overruling demurrers to an amended bill of complaint filed in that court by the appellee' against the appellants. The facts set out in the bill and admitted by the demurrer are in substance these: Margaret A. Boland, who had for sometime heen living apart from her husband, John H. Boland, employed, during or prior to the year 1919, David Ash, Esq., an attorney practicing in Baltimore City, to institute and conduct an action for the alienation of her husband’s affections against one Freda Annarino. Some years prior to the institution of that suit, in 1909, Mrs. Boland and her husband had separated as a result of domestic discord, and had executed .in agreement in which she released all her marital rights in her husband’s estate in consideration of the payment to her of $4,200.

On or about July 9th, 1922, Boland, who was then living openly with Freda Annarino, died, supposedly intestate. Thereupon Freda Annarino made “prompt and strenuous” efforts to secure all the property of which he was possessed at his death which she could by any possibility reach. Her energy and speed aroused the apprehension of counsel for Mrs. Boland who, upon her husband’s death, had repudiated the agreement she had made i*eleasing her interest in his estate, and he felt the necessity of taking prompt action to shield and preserve the estate from the exhaustive searches and seizures of Freda Annarino. To that end, on July 10th, 1922, a bill was filed in Circuit Court No. 2 of Baltimore City by John H. Boland, Jr., the son of the decedent, against Freda Annarino, and as one of the immediate fruits of that litigation the defendant ivas prevented from securing a safety ⁴⁶⁸ deposit box rented by the decedent, which contained securities and other property valued at about twenty-five thousand dollars.

John Ií; Boland, the decedent, left, as his only heirs at law, John H. Boland, Jr., his son, and Mrs. Boland, his widow, unless she was barred from asserting any claim against his estate by the agreement which she had made in 1909. John H. B'oland, Jr., took out letters of administration upon his father’s estate, and then entered upon negotiations with Margaret A. Boland, his mother, concerning the validity and effect of that agreement, and as a result thereof it was agreed between them that the agreement should be disregarded, and that Mrs. Boland should receive one-third of the estate left by his father. At or about the same time certain claims of Freda Annarino to property in her possession, which she had obtained from the decedent, were contested by the administrator. Those differences were finally adjusted and settled, and for the purpose of carrying, out the settlement John H. Boland, Jr., individually and as administrator etc., Margaret A. Boland, and Freda Annarino. filed a petition in Circuit Court No. 2 of Baltimore City, in which they asked that court to sign a decree allotting the property in dispute respectively to the administrator and Miss Annarino in accordance with an agreed schedule, and directing the payment from the funds of the estate to Mrs. Boland of five thousand dollars in satisfaction of her suit against Miss Annarino.

That petition, which was sworn to by each of the parties to it, contains, among others, this statement : that the material issues in this case are as to the right, title and interest in, to and out of certain property, bank accounts and safety deposit boxes alleged to stand in the names of a certain John IT. Boland, said Fl&ta, Annarino' or her pseudonyms, either or both of them; and that the only distributees entitled to distribution and devolution of the estate of said John II. Boland, lately deceased, are said John Boland, Jr., an only son of said John H. Boland, now deceased, and said Margaret A. Boland, the mother of said John H. Boland, Jr., and the widow of said John H. Boland, ⁴⁶⁹ deceased, in the proportion of two-thirds and one-third respectively.” Throughout all of these transactions Mr. Ash represented Mrs. Boland, and at times Mr. John H. Boland, Jr., and he expended much time and labor in his efforts to protect their interests. He tried the suit for alienating the affections of Mr. Boland, which Mrs. Boland brought against Freda Annarino, in the lower court and in the Court of Appeals, and participated in the various transactions which preceded and resulted in the settlement referred to-.

Fnder her original contract with Mr. Ash, Mrs. Boland agreed to pay him fifty per cent, of any amount recovered for her in her action for the alienation of the affections of her husband. When her husband died, however, and she determined to assert a claim against his estate as his widow, as thoug'h the agreement of 1909 had not been made, her original contract with Mr. Ash was cancelled by mutual consent, and she executed in lieu thereof a contract in the-following’ form: “I hereby retain David Ash as my attorney in all matters relating to the estate of my lately deceased husband, John H. Boland, and I agree to pay and do hereby assign unto him, said David Ash, a sum equal to 5 per cent, of any and all property and estate that I may receive in the premises or that may be received to my account or that of my assigns. And I authorize my said attorney, David Ash, for me and on my behalf to do all and each the matters and things in the premises that in his discretion are necessary or desirable. “Tn consideration of this contract it is understood that said David Ash, in the event of a settlement instead of a trial in the case of Boland vs. Annarino in the Baltimore City Court for alienation of affections, will accept 25 per cent, of the amount of such settlement in lieu and stead of the 50 per cent, heretofore contracted for as a fee in said case. “Done in the City of Baltimore this 16th day of October, 1922.” ⁴⁷⁰ The effect of that paper' was to assign to the appellee one-twentieth of the interest which Margaret A. Boland had in her husband’s estate. That interest had been fixed by an agreement between her and the administrator, who was also the sole heir of the decedent, at one-third of the net value of the estate.

Mr. Ash therefore became entitled to participate as a distributee in the distribution of the estate to the extent of one-sixtieth thereof. Included among the assets of the decedent was an interest in the firm of E. L. Kaufman & Company, paint dealers, and his interest in the estate of Clara A. Boland, his mother, of which he was the administrator, and upon which at his death letters of administration were granted to John H. Boland, Jr. After Mr. Ash had completed the duties imposed by his contract of employment with Mrs. Boland and his right to his fee became consummate, Mrs. Boland, John Boland, Jr., and Edward L. Kaufman entered into a conspiracy to defraud him of the fee which he had earned. And to that end and in furtherance of the conspiracy they were guilty of the following acts, which we will set forth Usdem verbis■ in the language of the bill: “Said three defendants did conspire together to defraud your orator of the said fee to which he is justly entitled; and that before your orator can have knowledge of the amounts justly due and payable unto him, in the premises, it will be necessary for him to have accountings and discoveries as prayed for in this amended bill of complaint; and that the said defendants, and each of them, did defraud your orator out of his said fee by the making of simulated agreements between themselves, the passing of assignments to that end and by other acts set forth in this bill of complaint, and by other acts to your orator unknown. * * * That said John H. Boland, Jr., returned inventories in the matter of each of the estates aforesaid; that said inventories thus returned by said John H. Boland, Junior, and each of them, are false, incomplete, or misleading, with the' intention of making the distributive share of said Margaret A. Boland in the estate of ⁴⁷¹ said John H. Boland, deceased, appear to be less than it actually is, and said inventories are thus made with a fraudulent purpose of defrauding your orator, said Margaret A. Boland and others of what is justly due and owing unto them in the premises. * * * That in order to promote the purposes of said conspiracy hereinbefore referred to, said Edward L. Kaufman, alleging that he mistrusted said John H. Boland, Junior, assured your orator that no settlement would be made in relation to the interest of the estate of said John H. Boland in the partnership aforesaid, excepting by and through your orator; but, despite said assurance, your orator says that subsequent to said promise an adjustment of the interest of the estate of said John H. Boland, deceased, in the copartnership aforesaid, was made or attempted to be made in the absence and without the knowledge of your orator. * * * That your orator has found on the public records what purports to be an assignment of all of said Margaret A. Boland’s interest in the estate of her said late husband unto said John II. Boland, Junior; as well as an indication that some settlement had been made or attempt.ed to have been made of the interest of said John H. Boland, deceased, in said late firm of Edward L. Kaufman & Company on a basis of sixty thousand dollars as the value thereof as an agreed amount for the same. * * * and that thereupon a great number of conveyances were attempted to have been made of property of the estate of said John II.

Boland,' deceased, and of said Clara A. Boland, deceased, respectively ; the latter named deceased being the mother of said late John II.'Boland, and his estate, probably being entitled to her estate. * * * Your orator believes and, therefore, avers that said assignment and conveyances aforenamed were knowingly made with the fraudulent purpose of defrauding your orator of his aforesaid fee and of his interest in said respective properties; and that the said Edward L. Kaufman, John H. Boland, Junior, and Margaret A. Boland thus conspired together to commit the fraud here complained of. * * * That a portion of the monies due ⁴⁷² to the estate of said John H. Boland from the firm of E. L. Kaufman and Company has, as yet, not been paid over to said John Ii. Boland, Junior, administrator as aforesaid, or to himself personally; that there is an outstanding note or notes representing said debt or a part thereof, and your orator says that said monies as so remaining unpaid should stand as security unto him, your said orator, for any money or monies due unto him by either or any of the defendants to this suit. That -neither the estate of said John H. Boland, deceased, or the estate of said Clara A. Boland, deceased, is yet fully administered; and your orator says that owing to the peculiar nature of the proceedings in an administration in the Orphans’ Court of Baltimore City he has not an adequate remedy to protect him in the premises excepting by the intervention of this honorable court.” Hpon these facts the complainant asked for the following relief: “(A) That this honorable court may assume jurisdiction of the administration of the estates of said John H. Boland, deceased, and of said Clara A. Boland, deceased. “(B) That said Edward L. Kaufman may be compelled to make discovery of and full accounting for the interest of said John H. Boland, deceased, in the copartnership existing between said Edward L. Kaufman and said late John H. Boland at the time of his death. “(C) That said John I-T. Boland, Junior, personally and in his respective capacities as administrator of the estate of said John H. Boland, deceased, and administrator of the estate of Clara A. Boland, deceased, may be compelled by this honorable court to give a full and true account of all and every the property of either and both of said estates that have come to his hands or knowledge, and each of them, and to file herein a true, full and perfect inventory thereof. “(D) That this honorable court may decree payment' by the pei-son or persons indebted in the prem ⁴⁷³ ises unto your orator of the amount of fee found to be due unto him in the premises. “(E) That this honorable court may declare the interest in the estate of said John H. Boland, deceased, and the respective parts thereof, found to belong to your orator. “(E) That this honorable court may declare the fee found to be due to your orator to be a lien on the respective properties in the estate of said John H. Boland at the time of his death. “(G) That this court may issue its order forbidding and restraining said Edward L. Kaufman from paying out any balance of any monies, part of the estate of said John H. Boland, deceased, due unto said John H. Boland, Junior, individually, or as administrator as aforesaid; and forbidding and restraining said John H. Boland, Junior, from conveying, assigning or transferring any claim or ' claims that he may have against said Edward L. Kaufman for such monies; and from conveying or encumbering any property or properties that were heretofore a part of the estate of said Jolm LI. Boland, deceased, have been heretofore conveyed unto him, said John H. Boland, Júnior, until the further order of this court. “(II) That this court may set aside the aforesaid assignment of all of said Margaret A. Boland’s interest in the estate of her late husband, said John H. Boland, unto said John H. Boland, Junior. “(I) That your orator may have such other and further relief as his case may require.” To that hill the several defendants demurred on various grounds which in effect, however, may he reduced to these: (1) That the bill did not state a case for equitable relief; (2) that there was a misjoinder of defendants; (3) that it was multifarious, and (4) that as against Ethel