Brager v. Friedenwald

Burke, J., delivered the opinion of the Court. At the conclusion of the argument of this case the duty of preparing the opinion devolved upon Judge Stockbbidge. He prepared and submitted an opinion, but a difference arose among the judges as to the conclusion which should be reached upon the question presented by the record, and the opinion was not adopted. But this diversity of opinion does not ¹⁰ arise over the principles of law applicable to actions of this character, bnt it arises out of a difference of understanding as to the legal purport and effect of the facts contained in the record.

This opinion expresses the views of the majority of the Court. Upon the conclusion of the plaintiff’s case the Court instructed the jury to find their verdict for the defendants upon the ground that there was no evidence in the case legally sufficient- to entitle the plaintiff to recover. In obedience to this instruction, the jury found their verdict for the defendants. A judgment was entered on the verdict in favor of the defendants and the plaintiff has brought this appeal.

The record contains seven bills of exceptions. Six of them were-reserved by the plaintiff to rulings of the Court on questions of evidence, and the other to the granting of the prayer referred to by which the case was withdrawn from the consideration of the jury. As the only important question in the case arises over the granting of that prayer, that question will be first considered. It is important to bear in mind that in deciding the question of the propriety of granting that prayer we do not decide whether or not the evidence is sufficient to' support the plaintiff’s case against any, or all of the defendants.

We do not decide, or express any opinion as to whether it is or not, and we are not to be understood as expressing or intimating any opinion upon the credibility of witnesses, or upon the truth of the evidence. In our system of jurisprudence the province of the jury is separate and distinct from that of the Court. When a prayer, such as we have in this case, is submitted to withdraw a case from the jury, the only question the judge can decide upon such an application is whether the plaintiff has offered any evidence legally sufficient to sustain the cause of action. If there is any evidence legally sufficient for that purpose, it is the exclusive duty and province of the jury to say, when all the facts have been submitted to them, whether they are of sufficient probative force to support the ¹¹ plaintiff’s case.

In passing upon the propriety of granting this prayer the evidence adduced by the plaintiff in support of her case must he assumed to be true, and she must be given the benefit of all legitimate and fair inferences deducible therefrom in her favor. So the real question before us on this prayer is, not whether the testimony offered proved the plaintiff’s case, or whether the jury ought to have so decided had the case been submitted to them, hut whether there was any legally sufficient evidence offered by the plaintiff from which the jury could properly find, if they believed it true, that the defendants were guilty of the wrongs alleged in the declaration. This principle, it is true, is elementary, hut it is well at- times for our guidance to recur to and restate fundamental principles. There is one circumstance to which it is proper to refer before proceeding to a discussion of the main facts.

The plaintiff called Leo, Jacob and Moses Friedenwald and proved by them that they, and at least two of the defendants, had personal knowledge that the will of 1903, hereafter more particularly referred to, was obtained by the grossest sort of undue influence exerted upon Mr. Friedenwald. Upon cross-examination these witnesses testified that Albert A. Brager, the husband of the plaintiff, and who was acting as her agent and representative throughout the entire negotiations and litigation connected with this estate, was told by them of the exercise of this undue influence before the attack on the 1903 will; that he was informed of all they knew upon the subject. This was denied by Mr. Brager, who testified that he did not know of the specific acts of undue influence until long after both settlements hereafter mentioned were made, and not until these witnesses had testified to this undue influence at the trial of the caveat to the will of 1903. One of these witnesses, Jacob H. Friedenwald, was a party to this suit, and the plaintiff was not bound by his testimony, and it was competent for her to show what the real facts were, notwithstanding the testimony of the other witnesses. ¹² There was a conflict of evidence upon a vital question of fact which it was for the jury, and not for the Court, tq decide.

The record is large, and, without prolonging this opinion by a minute and tedious discussion of the evidence, we will give a brief outline of such facts appearing in the record, which in our opinion, should have carried the case to the jury- Joseph Eriedenwald, who was about eighty-four years of age, died in Baltimore City on December 24, 1910. His wife had predeceased him. He left surviving him twelve children and three grandchildren, the children of a deceased daughter, Rebecca Bloch. These surviving children and grandchildren were his heirs at law and distributees.

These children in this opinion will be treated as constituting one of the surviving children of Mr. Eriedenwald. Mr. Eriedenwald was a wealthy man—the exact value of his estate does not appear from this record, but it was probably as much as four millions of dollars. Had he died intestate, each of the surviving twelve children would have taken a one-thirteenth part of his estate, and the above named children of his deceased daughter would have taken the other one-thirteenth part of this vast estate. According to the evidence of Jacob H. Eriedenwald, one of the defendants, and of Moses S. Eriedenwald, another son, it was the fixed intention of Mr. Eriedenwald that his estate should be equally divided among his children.

In testifying as to the occasion of the fiftieth anniversary (February 14, 1902) of the marriage of his father and mother, Jacob H. Eriedenwald, said: “We presented my father with a loving cup, with each and every one of the children’s pictures around and father’s and mother’s picture in the center. My father made a few remarks, telling us what good children he had, what fine children he had; that he wanted us to stick together, be one big family, congenial, and that he dearly loved all his children, and at that time he said he was going to divide his worldly possessions equally ¹³ among all his children.” Speaking of the fifty-first wedding anniversary, Moses S. Friedenwald said: “My father, as was usually his custom in these gatherings of his children—it was the fifty-first anniversary of the marriage of my mother and father, and all the children were congregated there, and he was seated at the table and be made a few remarks addressed to Ms children; that he had a very large family, all very near and dear to him; that he had arrived at that age in life where he was not very long for this earth; that he had accumulated quite a large fortune; that it was his intention to make an equal distribution amongst all bis children; that they were all alike to him; that be did not have any difference, did not see any difference, and when he was dead and gone he wanted them all to be a great big chain with no weak link in it.” This testimony is not contradicted, and was given at a time when, as the evidence tends to show there was a concerted action to strike down the will of 1903, and thus secure a distribution of the estate upon the basis of intestacy. The attack upon the will of 1903 was successful, and the estate has been distributed as if Mr. Friedenwald had died without a will, but in this distribution the plaintiff has been excluded. The children and heirs at law of Mr. Friedenwald were: Benjamin B. Friedenwald, Hiram W. Friedenwald, Jennie TTecht, Merla Thalheimer, Bertha G-oldenberg, Berleen Dessauer, Aimee Beekman; Herbert Block, Merla Block Wolf, Helen Bloch Shields, children of Rebecca Bloch, a deceased daughter.

These are referred to in the Record as the “favored eight,” and will be so designated in this opinion. The remaining children are Blema Brager, the appellant; Moses S. Friedenwald, Jacob H. Friedenwald, Leo Friedenwald, Florence Selz. The four last named are spoken of as “the four,” and will be so referred to in this opinion. After the death of Mr. Friedenwald, it was discovered that he had made and executed at various times three instruments of writing purporting to be last wills and testaments : ¹⁴ (a) One dated August 3, 1875.

By its terms all the estate of the testator was left to his wife absolutely in case she survived him. As Mrs. Friedenwald died before her husband, and as the will made no alternative provision as to the property, it is conceded that her children took nothing under that will, and it need not be further noticed. (b) One dated April 24, 1903. (1) By the terms of this will the whole estate was left in trust for the widow for life, and then in further trust to pay various legacies, including one thousand dollars to each child of Blema Brager.

(2l Twenty thousand dollars in trust for life for Florence Selz, a daughter. (3) Balance in trust for twenty-one years with limitation as to the income, and upon the expiration of the trust period the trustees were directed “to pay over and divide the said trust estate and all accretions and accumulations to and among such of my children and descendants of deceased children as may be living at the expiration of said twenty-one years, in equal shares per stvrpes/J except Mrs. Brager and Mrs. Selz. Mrs. Brag&r was excluded by this will. (c) One dated December 12, 1910.

By the terms of this will his estate was disposed of as follows: (1) Various legacies. (2) Specific devises of certain real estate. (3) All his shares in the Grown Cork and Seal Company in trust for two sons and six daughters—“the favored eight,” mentioned above, and upon the expiration of the trust period “to divide and transfer said shares and all invested and accumulated income in equal shares to my two sons, Benjamin B. Friedenwald and Hiram W. Friedenwald, and my six daughter’s, Jennie Hecht, Merlie Thalheimer, Bertha Golden-berg, Berlin© Dessauer, Amie Beekman and Rebecca Bloch, their personal representatives and assigns, absolutely and free from all trusts.” (4) - Forty thousand dollars to Mrs. Brager. (5) All the rest and residue of the estate is divided into twelve parts—one share is given to each of the “favored ¹⁵ eight,” absolutely, and one share each is placed in trust for life for “the four,” viz: Moses S., Jacob H. and Leo Friedenwald, and Florence Selz.

The will contained a clause annulling the bequest to any one who should contest it. The executors named in the will of 1903 were Hiram W., Jacob H. and Benjamin B. Friedenwald. In the will of 1910 the executors named were his sons, Benjamin B. and Hiram W. Friedenwald, and sons-in-law, Samuel Thalhedmer, Milton Beekman and Leonard Hecht. The provisions of the 1910 will became known shortly after Mr. Friedenwald’s death.

In consequence of the gross inequality of its dispositions there was great disappointment and dissatisfaction on the part of Mrs. Brager and “the four.” It is not disputed that Mrs. Brager and Mrs. Selz had always been affectionate and dutiful children, and the evidence is clear and uncontradicted that their father had always been devotedly attached to them. Mrs. Selz’s husband had been unfortunate in business and had gone to New York to seek employment. She and her two children went to her father’s home where they remained about one year. She then joined her husband in New York, and lived in a tenement district in great poverty and privation.

Her situation excited the sympathy of her father and he sent her money for her support, and repeatedly declared his intention to provide for her. But by the terms of the will the “favored eight” received each about three hundred thousand dollars of his estate, and Mrs. Brager was given forty thousand dollars, and Mrs. Selz was given an income for life of probably six thousand dollars. Mrs. Brager has been in poor health for a number of years and she committed her interests to the charge of her husband who was a successful and well-known business man. He determined on behalf of his wife to contest the will, and immediately began to collect evidence upon which to base <• contest.

Three of “the four” wanted the will stricken down, but it was recognized that this meant a long and expensive litigation. The in-ierrorem clause in the will and the financia] ¹⁶ inability of either of “the four” to carry on the litigation operated as restraints upon them, but all, except perhaps Leo, wanted to contest the will, and Mr. Brager determined to begin the contest. The will had been admitted to probate in the Orphans’ Court of Baltimore County on December 28, 1910—four days after Mr. Eriedenwald’s death. “The eight” determined to prevent this contest by getting Mrs. Brager out of the way. With her out of the way, they thought there would be no further trouble.

They did get her out of the way—and it was thought finally and effectually— in the following manner: In January, 1911, a meeting between Mr. Edwin G. Baetjer, Mr. Brager and Mr. Louis H. Frank, counsel for Mr. Brager, was held at the home of Mr. Brager. At this meeting Mr. Baetjer was representing “the eight.” At this meeting he made no intentionally false statements, nor did he make any statements which he did not in good faith believe to be true. But what he did say in the light of subsequent developments materially and injuriously affected the rights of Mrs. Brager in her father’s estate. Mr. Baetjer was there to get rid of the impending war on the will.

He talked peace. He acted like a trained and skilled diplomat seeking to remove the causes of strife. The greater part of the interview seems to have been taken up in discussing that wonderful man,—and in many respects he was a wonderful man,—Joseph Friedenwald,—his personal characteristics and abilities. Finally, Mr. Baetjer told Mr. Brager that there was an earlier will which was less favorable to Mrs. Brager than the will of 1910, and that Hiram W. Friedenwald, one of the executors of the 1910 will had told him the maximum amount that each child would receive would be one hundred and ten thousand dollars.

There can not be a doubt upon this record that the statements of Mr. Baetjer were relied upon by Mr. Brager; that they led him to believe in the existence of a valid prior will less favorable to Mrs. Brager, and that the existence of such a will and the maximum amount to each child stated by the ¹⁷ executor,—both of which representations proved to be untrue, —were the inducing canses of the settlement to which we shall presently refer. Mr. Brager in referring to the statements made by Mr. Baetjer as to an earlier will, which proved to he the will of 1903, said: “The Court: Can you recollect the language that Mr. Baetjer used when he announced the 1903 will? A. He simply told me he had another will; he found another will or had another will, I cannot give his exact language; on his. desk or in his. desk, or among his papers; further than that I could not give you the definite language. Q. You say, he said you are up against a stone wall as to the other will; are those his words ?

A. I think those were the words if I remember them now, I have repeated it so often that they have become fixed in my mind; because I recall that he said I was against a stone wall as far as I can recall this minute. Q. You are speaking in reference to the 1903 will and was he? A. He didn’t say 1903 will as I remember; he said former will. Q. What other language, if you can recall, did he use, or did he characterize in any way this former will which he told you about ?

A. He said this: in this other will that Mrs. Brager would not fare quite so well as she did in the 1910 will; I did not find out •until very much later that the 1903 will did not leave Mrs. Brager anything. I believe Mr. Baetjer thought be was absolutely right; I do not think he tried to mislead me, as far as I know; I believe he thought it left Mrs. Brager less, as he stated; hut as a matter of fact Mrs. Brager was entirely eliminated in the will of 1903. Q. I want you to give, if you can .state it to me, the precise language that Mr. Baetjer used when he brought to your attention the difficulty that you would be up against, after breaking the 1910 will, by reason of this former will, which yon say for the first time he told you about at this interview ? A. Well, he told me I would he up against—the spirit of it was I was np against an impossible proposition.” Following this interview a settlement was made between Mrs. Brager and “the eight,” and all the papers relating to ¹⁸ this settlement were prepared by Mr. Baetjer.

This settlement was made to protect the will of 1910 from attack; to compose differences and prevent family dissentions, bnt primarily to avoid the contest over that will which Mrs. Brager was threatening to inaugurate. The executors agreed to pay her the sum of eighty-five thousand dollars, that is to say, the legacy of forty thousand dollars, and forty-five thousand dollars additional, and it was agreed “that said additional amount of forty-five thousand dollars' is not to be paid by or contributed to by all of the legatees and devisees under said will,, but is to be paid equally by the eight parties entitled to the benefit of the bequests of the stock of the Crown Cork and Seal Securities Company, etc., by the eighth item of said will, that is to say, the three children of Rebecca Bloch to represent their mother;s share, and to pay together one-eighth, and each of the remaining parties to pay one-eighth of said sum.” In pursuance of the agreement of settlement Mr. and Mrs. Brager on March 21, 1911, executed a deed granting and conveying all the right, title, interest and estate of Mrs Brager in and to all the property and estate, real, personal and mixed, of which Joseph Eriedenwald was, at the time of his death seized or possessed, or in any way entitled to, and including all rights, title, interest and estate which the said Blema Brager may have as legatee or devisee under said will -or under any other will, and as heir at law or distributee of the said Joseph Eriedenwald, unto and to the following persons, to wit: (1) To the pecuniary legatees and to the devisees mentioned in items one to seven included in the said will, the amounts of their said legacies and property devised by them, respectively, to be held by them free from all claim of the said Blema Brager. (2) To the Safe Deposit and Trust Company of Baltimore, trustee, under the eighth item of said will, the shares of stock of the Crown Cork and Seal Securities Company and the Crown Cork and Seal Company of Baltimore in ¹⁹ trust to hold the same as herein set forth, and on the arrival of the time provided therefor, to divide the same and all accumulated income thereon as follows, to wit: To Benjamin B. Friedenwald, Hiram W. Friedenwald, Jennie F. Hecht, Merla Thalheimer, Bertha Goldenberg, Berleen I. F. Dessauer and Aimee F. Beekman each one-eighth thereof and Herbert R. Bloch, Helen B. Shields and Merla B. Wolf, children of Rebecca Bloch, the remaining one^eighth. (3) As to all the rest and residue of the property whereof the said Joseph Friedenwald died seized or possessed, and all the interest and estate of the said Blema Brager therein, to the Safe Deposit and Trust Company of Baltimore, trustee under the eleventh item of said will, four-twelfths thereof.

(4) To William B. Friedenwald, Hiram W. Friedenwald, Jennie F. Hecht, Merla Thalheimer, Bertha Goldenberg, Berleen I. F. Dessauer and Aimee Beekman each one-twelfth thereof; and Herbert Bloch, Helen B. Shields and Merla B. Wolf, children of Rebecca Bloch one-twelfth thereof. The money was paid on the 21st of March, 1911. Out of this sum it was agreed that Mr. Frank should receive as an attorney’s fee $5,000. Mr. Brager was asked why he made this settlement.

He replied: “I thought it was the right thing to do. Mrs. Brager in that way would get eighty thousand dollars, and if the original will stood she would get this forty thousand dollars, and if I contested it and won I would only get one hundred and ten thousand dollars, and I believed the difference between eighty thousand dollars and one hundred and ten thousand dollars would be almost expended in lawyers’ fees and Court costs, etc., even if I won out, and I felt it was the wisest thing to do, and then besides, I made the allusion to Mr. Baetjer, a fact which I want to tell you and which I had forgotten, I told him I would regret very much if there would be any family r friction, and I made a point of this statement, that if there was a settlement of any character, and that was discussed that night between Mr. Baetjer and Mr. Frank and myself that pleasant relations would continue between the family ²⁰ and Mrs. Brager. “Q. What was your understanding or belief about this earlier will when you made this statement ? A. I believed that any instrument that Mr. Joseph Friedenwald had executed in 1908 would be incontestable.” Mr. Frank testified: “I talked the matter over with Mr. Brager; I knew the law of this State regarding the breaking of a will, which is a very solemn instrument, and I thought we would have a great deal of difficulty, I knew it would mean a big fight because we had practically the whole family arrayed against us, the other- eight; under the terms of that will the Crown Cork and Seal Company’s stock was tied up in some way advantageous to the Crown Cork and Seal Company and I knew or felt we would have to contend with the assistance of the Crown Cork and Seal Company who would assist in sustaining the will, which really occurred; I also took into consideration the fact there was another will, and if we succeeded in breaking the will of 1910 which as I said before, was a government job,—if we broke it I knew it was staring me in the face. I thought even if we broke the 1910 will we would have to fight the 1903 will, and I thought it would be a tremendous undertaking.” After this settlement had been consummated the situation which presented itself is thus described' in one of the briefs of the appellees: “The captain had deserted the ship.

For a time the crew seemed to be in a state of consternation. Leo and Florence, who were in immediate need of money, accepted allowances under the will which would have precluded them from attacking it. Jacob and Moses hesitated. They had large interests under the will, to wit: A life income for each of probably about six thousand dollars a year, all of which they would lose in event of an unsuccessful litigation.

Finally, Mr. Harley, on being satisfied as to the testimony which Doctor Julius Friedenwald would give, advised Moses to file a caveat, which was accordingly done on May 24, 1911. This caveat contained all the usual allegations as to lack of testamentary capacity, undue influence, fraud and knowledge of the contents of the will.” ²¹ A long and bitter contest ensued between Moses S. Friedenwald, tbe caveator, supported by three of “the four,” aided by Mr. Brager, to strike down the will of 1910, and the “favored eight” who were seeking to uphold it. On January 30, 1912, the will was broken upon tbe ground of mental incapacity,—the issues of undue influence and fraud being withdrawn from the consideration of the jury. The probate of tbe will was revoked by the Orphans’ Court.

A new chapter in the story of this litigation then began. It is one which we think the jury should consider and characterize. An appeal was entered from the rulings of the Court taken during the trial, but no bills of exceptions were prepared, and the time within which the appeal could be prosecuted was permitted to expire. The breaking of the 1910 will left in force the will of 1903.

With this will none of the twelve heirs were satisfied. It had disinherited Mrs. Brager, who, however, was supposed to have no further interest in the estate, and it had practically disinherited Mrs. Selz, and it tied up the estate in a long trust. It was determined to get rid of this will. The first step taken to this end was this: The twelve heirs,—'“the four” and “the eight,”—got together on that proposition.

Upon what ground was the will to be stricken down ? If the testimony of Leo, Jacob II. and Moses S. Friedenwald be true,—and for the purposes of this case we must assume it to be true,—they and Mrs. Hecht and Mrs. Dessauer knew of their own personal knowledge that that will was a mere shadow,—that it had been obtained by tbe most unnatural and grossest undue influence practiced upon Mr. Friedenwald, and for that reason could be easily and readily set aside. According to the testimony of Mr. Brager, all five of these parties kept this evidence,—which is set out in full in the record,—securely locked in their own breasts until the trial of the caveat to the will of 1903 and after the second settlement had been made. It is not pretended that they mentioned it to Mr. Barton.

In the intervening period between the breaking of the will of 1910 and ²² the filing of the caveat to the will of 1903, Mr. Harley, Judge Lehmayer and Mr. Frank were representing “the four,” and the late Edgar H. Gans the “favored eight.” Mr. Frank said “we were trying to get the family together.” He knew that efforts were being made in such a way that there might be a distribution. That that distribution was to be made upon-terms of perfect equality between “the four” and “the favored eight” is obvious from the record. On January 9, 1913, “the four” filed a petition and caveat to the will of 1903, and before the issues upon that caveat were tried all the parties had come to an agreement even as to the interest of Mrs. Brager, conveyed by the deed of March 21, 1911. This deed had conveyed her interests subject to the trust created by the will of 1910.

But the twelve had agreed to divide it equally among themselves. A singular thing happened in May, 1912. Mr. Jacob A. Rice, who is called in the testimony “a magician,” approached Mr. and Mrs. Brager and procured from them a power of attorney. The power of attorney contained this recital: “And whereas the said Moses S. Friedenwald, together with Jacob- LI.

Friedenwald, Leo Friedenwald, Florence Selz, have signified to the said Blema Brager and Albert A. Brager that none of them would make any attempt to attack or break the said alleged will of 1903 unless the said Blema Brager, Albert A. Brager, her husband, and the said children of Blema Brager, who are legatees under the alleged will of Joseph Friedenwald of 1903, would execute to Jacob A. Rice, who is acting under power of attorney for the said Moses S. Friedenwald, Jacob H. Friedenwald, Leo Friedenwald and Florence Selz, in securing their share of the estate of said Joseph Friedenwald, a full, final and irrevocable power of attorney to the said Jacob A. Rice as hereinafter set forth.” This instrument invested Mr. Rice with the broadest powers. It contained a stipulation that the Bragers would not, either jointly or severally, at any time or times thereafter “institute any action, suit, or proceeding, either in law or in equity ²³ of any kind, or character whatsoever, for the purpose of recovering or receiving anything from the estate of Joseph Friedenwald, deceased, or for the purpose of attacking any-proceeding which may he instituted of any character whatsoever, by any of the heirs, distributees or legatees cf the estate of said Joseph Friedenwald; and we hereby authorize our said attorney to execute any and all deeds, releases, covenants and other assurances of any character whatsoever, conveying whatever interest we or any of ns may have in and to any part or portion of the estate of said Joseph Friedenwald under any will or testament, or as heir, devisee, legatee, or in any other manner whatsoever, as fully, finally and effectually as we could personally do in the premises, hereby finally ratifying and confirming whatsoever our said attorneys may do for us in the premises.” Under this power of attorney Rice collected from the estate the legacies of the Brager children under the will of 1903. After the twelve heirs had reached an agreement as to the distribution of the entire estate among themselves in equal proportions, the will was offered for probate in the Orphans’ Court of Baltimore County on January 9, 1913, in the presence of counsel of all the parties. At the same time a petition and caveat was filed by “the four,” and the answer of “the favored eight” was filed.

The answer, after denying the allegations of mental incapacity, undue influence, fraud, etc., averred in the petition, contained this paragraph: “These respondents further say that the said Joseph Eriedenwald left what purported to he a last will and testament dated the 12th day of December, 1910, which was probated in common form in this Court, but upon caveat being filed and issues framed, it was determined by a jury sitting iu the Circuit Court for Baltimore County, that the said will was invalid because the said Joseph Friedenwald was at the lime of its execution not of sound and disposing mind, and did not understand the contents thereof. Although these respondents are legally bound by the verdict of the jury and the judgment ²⁴ of this Court, thereupon, they still believed then and believe now, notwithstanding said verdict that the said Joseph Friedenwald was of sound and disposing mind at- the time he executed the will of December 12th, 1910, and understood the contents thereof, that he was just as competent to make a will on December 12th, 1910, as he was on April 24th, 1903, and that, therefore, these respondents do not believe that the will of 1903 expresses the real and final intentions of their father and grandfather with respect to his property, and they are not interested-in defending it; but inasmuch as all the charitable and small pecuniary legacies will be paid by tfie family of the said Joseph Friedenwald, even though the will of 1903 is set aside, the only persons who might be interested in sustaining the will of 1903 are the grandchildren of the late Joseph Friedenwald, and their descendants, born and unbo-m, who have contingent interests under said will, and these interests should be represented by some person appointed by the Court to defend the will, at the cost of the estate, to the extent that such person, in the exercise of his independent judgment, in view of all the circumstances of the case, shall deem proper.” On the same day Mr. Edward H. Burke of the Towson Bar was appointed special administrator pendente lite, “charged, however, with the sole duty of defending said alleged will to the extent that he in his independent judgment shall deem proper and to secure its admission to probate if that is attainable on full and fair investigation.” He filed an’ answer on February 26, 1913. An effort was made to induce him to try the case before the Orphans’ Court, which, for reasons sufficient to himself, he declined to do, and issues were sent on May 22, 1913, to the Circuit Court for Baltimore County for trial. In the meantime the children of Albert A. Brager had filed a petition in the Orphans’ Court to be made parties,— caveatees.

This was resisted by all the parties and the petition was dismissed. The power of attorney to Rice was revoked on February 14, 1913. Mr. and Mrs. Brager had ²⁵ employed Mr. Randolph Barton, Jr., to take charge of Mrs. Brager’s interest. The shadow of Brager had been projected across what appeared to be the easy and simple plan of an equal division of the estate, and the parties concluded that their interests required that Mrs. Brager be again dealt with in such a way as to finally eliminate her from the case.

What was done was this: (a) An agreement dated March 4, 1913, was executed between Mr. and Mrs. Brager and the twelve heirs. (&) A deed from Mr. and Mrs. Brager dated March 4, 1913, to the twelve heirs. This agreement provided: 1. That in the event of the will of Joseph Friedenwald bearing date April 24th, 1903, being finally set aside in the pending caveat proceedings, there shall be paid to Mrs. Blema Brager the sum of forty-four thousand five hundred dollars ($44,500) in full settlement of all claims of the said Blema Brager, Albert A. Brager, her husband, their children and their heirs, representatives and assigns. 2.

As soon as this agreement is signed by the parties hereinbefore mentioned, there shall be placed in the hands of Edgar H. Gans, acting for all the parties hereto: (a) A deed, duly executed by said parties of the first part conveying all their