Davis v. Crockett

McSherry, C. J., delivered the opinion of the Court. Four of the children of Catharine Davis, deceased, filed a bill in the Circuit Court of Baltimore City against Harry B. Davis, a son, Estella Fehsenfeld and Marion Davis, daug-hters, and Louis Fehsenfeld, a son-in-law, of the decedent. Llarry B. Davis was made defendant individually and as administrator pendente lite of his mother’s estate. Laying aside all the matters which have been, in fact, eliminated from the controversy, the material averments of the bill, which we now have to deal with, and which were the only ones considered and passed on by the Court below, are these: That the inventories returned by Harry B. Davis as administrator pendente lite of Catharine Davis were not full and perfect by reason of the omission therefrom of “ a large sum of money due from the said Louis Fehsenfeld,” and that, “ said Harry B. Davis, administrator as aforesaid, has conspired and colluded with said other defendants, for the purpose of further defrauding your complainants . . . and they further charge that said administrator has colluded with said Louis Fehsenfeld for the same fraudulent purpose in not returning said debt due by said Fehsenfeld to said estate; and that said administrator has refused to return . . . said debt in consequence of said fraud and collusion.” Each of the defendants was required to answer the bill under oath, and Harry B. Davis was further required to answer under oath certain interrogatories appended to the bill.

The interrogatories so propounded to him were as follows, in so far as they relate to the present contention: “ i. Why have ²⁵² you not returned in the inventory to the Orphans’ Court the debt of $3,500, or thereabouts, due from Louis Fehsenfeld to Catharine Davis at the time of her death? 2. Were there no other debts due to said Catharine Davis? and if there were, name them.” All the defendants answered the bill under oath, and each one in replying to the averments and charges above set forth, emphatically denied “ that there was a large sum of money due from said Louis Fehsenfeld to the said Catharine Davis at the time of her death,” and each further denied that Fehsenfeld “ was indebted in anywise to her at the time of her death.” In response to the specified interrogatories propounded to him Harry B. Davis made the following answers under oath: That he omitted to return in the inventory a debt due to Catharine Davis from Louis Fehsenfeld “ because there was no such debt due from Louis Fehsenfeld to Catharine Davis at the time of her death,” and that he knew “ of no other debts due to Catharine Davis ” than those returned by him. Subsequently the bill of complaint was amended by the addition of the following paragraph: “ That in August, 1890, said Catharine Davis loaned to said Louis H. Fehsenfeld $4,500, no part of which has ever been repaid to her, and said Harry B. Davis has never returned any part thereof in the estate of Catharine Davis, deceased, of which he has been and is administrator p. 1. although your orators are advised that said Fehsenfeld claims to have repaid all of said sum, with interest, to said Harry B. Davis since the death of said Catharine Davis.” Two specified interrogatories were appended, to be answered by Fehsenfeld under oath.

They are in these words: “ How much money did you borrow from Mrs. Catharine Davis between April 24, 1890, and February 9, 1892; upon what dates and in what separate amounts were such loans obtained? (2) How much of said money have you repaid; upon what date, and in what amount, and to whom was each of such payments made? ” Each of the defendants answered the additional or amended paragraph of the bill as follows: “ That he admits that in August, 1890, said Catharine ²⁵³ Davis loaned to him $4,500, as alleged in said additional paragraph, and states that at the time of said loan he gave to said Catharine Davis a note for said money, payable to her order 12 months after date; and he admits that no part of said $4,500 was ever repaid to said Catharine Davis, and that said Harry B. Davis, as administrator pendente lite never returned any part thereof in the estate of Catharine Davis. But he denies that said $4,500 should be or should have been returned as part of the estate of said Catharine Davis, to the Orphans’ Court of Baltimore City, because said Catharine Davis in her lifetime gave said $4,500 to Harry B. Davis as a gift, at about the time when said note above referred to became due and payable, and at the same time requested him (said Louis H. Fehsenfeld) to execute another note for the same, payable to the order of H. Bryant Davis (being said Harry B. Davis), which he accordingly did, and that therefore said sum of money was not a part of the estate of said Catharine Davis, at the time of her death. He admits and alleges that he has repaid said loan to said H. Bryant Davis, personally and individually as the owner of the same, with interest, since the death of said Catharine Davis, but he denies that said loan of $4,500, or any part thereof, was ever paid to said H. Bryant Davis as administrator pendente lite of Catharine Davis deceased.” Louis Fehsenfeld thus replied to the specified interrogatories: “I borrowed the sum of $500 and $4,500 from her about August 15th, 1890.” “ I gave said Catharine Davis a note for the said $4,500, payable to her order twelve months after date, with interest at five per cent., and at about the maturity of this note she gave this claim to her son, H. Bryant Davis (being Harry B. Davis), and she desiring said loan to be continued, requested me to give a new note, and to make it payable to the order of H. Bryant Davis, which I did.

Said last note being payable one year after date from August 15th, 1891, I paid the principal of this note in eleven payments.” He then sets them forth and continues: “ All of the above payments were made to H. Bryant ²⁵⁴ Davis the owner of said note. The note of $500 I paid to. Catharine Davis December 15th, 1890.” A general replication was put in and considerable testimony was taken by both sides; but not a particle of evidence was adduced by the plaintiffs to support the averments of the bill or the amended bill as to the alleged indebtedness claimed to be due by Louis Fehsenfeld to Catharine Davis or as to the averments that said debt was still an asset of the decedent’s estate. These, the vital branches of the controversy stand, so far as the plaintiffs are concerned, solely upon the bill, the amended bill, the original answers, the answers to the additional paragraph and the responses to the specified interrogatories.

The learned judge of the Circuit Court decreed that Louis Fehsenfeld pay to Harry B. Davis, administrator, the sum of forty-five hundred dollars with interest; and that Harry B. Davis account for that sum to the Orphans’ Court. From this decree Fehsenfeld and Davis have appealed. The question thus presented, and the one decided by the lower Court, will be considered on the face of the pleadings without reference to the evidence contained in the .record, unless the conclusion reached from a discussion of the pleadings shall make it necessary to refer to the testimony. The bill is not one seeking a general accounting from an executor, a trustee or other fiduciary, but its gravamen is that a specially designated debt is due by a particular individual to a decedent’s estate, and that the administrator pendente lite fraudulently confederating with the other defendants to injure the plaintiffs who are alleged distributees of the decedent — purposely omitted to include that debt in the inventory of assets.

This is what the bill as originally framed specifically charges and these charges all the defendants were required to answer under oath. In addition to this the administrator was required to answer under oath zvhy he had not returned in the inventory this debt thus asserted to be due by Fehsenfeld to the estate of Catharine Davis. As we have seen all the answers to the original bill ²⁵⁵ emphatically deny that Fehsenfeld was indebted to Catharine Davis; and the response of the administrator to the specified interrogatories states that he made no return of the alleged debt because no such debt was due to Mrs. Davis at the time of her decease. No proof having been offered by the plaintiffs to sustain these averments of the bill, or to overthrow these denials of the answers, or to controvert the responses to the interrogatories; what effect should have been given upon the final hearing to the answers of the defendants and to the replies to the interrogatories?

We lay aside for the moment the amendment to the bill and the answers thereto, and for the sake of clearness we will treat the question as though no amendment had been made. There would be no difficulty about this question were it not for the provisions of recent legislation which, in this instance as in many others, in an attempt to simplify judicial proceedings, have introduced uncertainty and confusion where no pretext for either existed before. As the doctrine of the Courts of Equity stood from an early period and until within the past half century, the responsive averments of an answer under oath were taken as true, unless discredited by the testimony of two witnesses, or by that of one witness confirmed by corroborating circumstances. Miller’s Eq., sec. 160, and cases in note i.

The reason of the rule was stated to be that the plaintiff by calling on the defendant to answer under oath the allegations of the bill made the answer evidence, and as one witness would only be equivalent to the answer, the plaintiff in order to prevail must have preponderating proof. Pennington v. Gittings, 2 G. & J. 208 . Or, as differently put, that the plaintiff by calling on the defendant to answer under oath has in effect that far made the defendant a witness and cannot be heard to say that no dependence ought to be placed on the answer he has given. Bellows v. Stone, 18 N. Hamp. 470.

This rule, simple in itself and easily applied, was first invaded and qualified by the Act of 1852, Ch. 133; and ultimately it was materially altered by sec. 103 of Art. 16 of the Code of 1860. By ²⁵⁶ the section just referred to, it was provided: “ It shall not be necessary for any defendant to make oath to his answer unless required by the complainant, nor shall any answer, whether sworn to or not, be evidence against the complainant at the hearing of the cause, unless the complainant shall read such answer as evidence against the defendant making the same.....” The Constitution of 1867 empowered the Judges of the Court of Appeals to adopt equity rules which should have the force of law. Under the authority thus given Rule 27 was adopted in 1883. It reads as follows: “If the plaintiff in his bill shall not require an answer under oath or shall only require an answer under oath with regard to certain specified interrogatories, the answer of the defendant, though under oath, except such part thereof as shall be directly responsive to such interrogatories, shall not be evidence in his favor, unless the cause be set down for hearing on bill and answer only . . .” By the Code of 1888, sec. 103 of Art. 16 of the Code of i860, and Rule 27 were both re-enacted, side by side — the one as section 146, the other as section 147 of Article 16 — and the question now is how these two sections, having these different origins, are to be construed so as to be in harmony.

Rule 27, or sec. 147, evidently contemplates two conditions: First. If the plaintiff shall not require an answer under oath, the answer though under oath, shall not be evidence for the defendant, unless the case be submitted on bill and answer only; and, secondly, though an answer under oath be not required, yet, if specified interrogatories shall be filed which are required to be replied to under oath, the replies to these interrogatories shall be evidence for the defendant if they are directly responsive. By sec. 146 the defendant need not make oath to his answer unless required by the plaintiff; and thus the ancient rule of chancery practice was abrogated; but even when the answer is sworn to, it shall not be evidence against the plaintiff unless read by him at the hearing. By sec. 147, though the plaintiff does not require an answer under oath, yet the answer, if under ²⁵⁷ oath, will not be evidence for the defendant, unless the case be set down on bill and answer only.

If, then, sec. 146 be read as applying only when an answer under oath is required, and sec. 147 as applying only when an answer under oath is not required, something like harmony in their provisions will be obtained. The result of such a reading would be this: Whereas formerly the answer when responsive was always evidence because always under oath; now, under sec. 146, when required by the bill to be under oath, it will only be evidence against the plaintiff if read by him at the hearing, whilst under sec. 147, though not required to be under oath, it will, if under oath, be evidence for the defendant when the case is heard on bill and answer alone. But whether the answer be treated as evidence or not, it will always, when denying the allegations of the bill, force the plaintiff to prove those allegations. Though in the view we have taken of the meaning of secs. 146 and 147, the answers to the original bill cannot be treated as evidence ag'ainst the plaintiffs or for the defendants because they were not read by the plaintiffs at the hearing and because the case was not submitted on bill and answer; they were sufficient to cast upon the plaintiffs the burden of proof; and as the plaintiffs adduced no proof whatever to support the allegations of the bill as originally filed, they were obviously not entitled to the relief sought under that bill.

But sec. 147 expressly provides that if the plaintiff shall require an answer unde-r oath with regard to specified interrogatories, the replies directly responsive to the interrogatories shall be evidence in the defendant’s favor. That the section means this cannot admit of doubt. The reply made by Davis to the first interrogatory propounded to him is directly and distinctly responsive. When asked why he did not return in the inventory the alleged debt due by Fehsenfeld to Mrs. Davis, he answered that he made no such return because no such debt was due to her at the time of her death.

This answer was evidence for the defendants; and there being nothing in the record to contradict it, the bill ought to have ²⁵⁸ been dismissed had the case then gone to a hearing. But the seventh paragraph was added to the bill by an amendment which has already been transcribed. The defendants answered, as has been stated, and Fehsenfeld replied to the specified interrogatories propounded to him. The answers to this additional paragraph, and nothing but these answers are relied on by the plaintiffs to support the averments of the amended bill.

These answers were read against the defendants at the hearing, and under the interpretation we have placed on sec. 146, their averments become evidence against the plain-; tiffs, if those averments are responsive to the bill. Just here the chief contention arises. On the part of the plaintiffs it is insisted that such parts of the answers of the defendants as admit that a debt once had been due by Fehsenfeld to Mrs. Davis are evidence against the defendants, but that all the rest of the answers on the same subject and the replies to