Ex Parte Nicholas

Boyd, C. J., delivered the opinion of the Court. By the will of Jane Hollins Xieholas, which was probated in the Orphans’ Court of Baltimore City on the 9th of February 1890, she directed a division of her estate and provided that if her son, Philip Xorbonne Xieholas, be Jiving at the time of her death, *‘l give, devise and bequeath one of said shares to my sons, Robert Hollins Xicbolas and George Clinton Xieholas, to their heirs, executors, administrators and assigns.; in trust, to receive and collect the rents and income and profits thereof and, after deducting reasonable expenses and commissions, to pay the residue to the said Philip Xorbonne Xieholas.” She then gave the trustees certain powers and provided for the appointment of other trustees on the death, resignation, or refusal to act of the two appointed. George C. Xieholas accepted the trust, hut he was later removed, and Edwin hi. Wilmer was appointed in his stead.

On February 20th, 1890. George C. Xieholas filed a petition in the Circuit Court of Baltimore City praying for a writ de lunático inquwendo to inquire into the mental condition of Philip Xorbourne Xieholas, who was alleged to he a lunatic, and on the same day the court ordered the writ tu issue. On the 6th of March, 1890, an inquisition was returned to the court, by which it was found that Philip Xorbourne Xieholas Ms of unsound mind and a lunatic, without lucid intervals so that, he is not capable of the government of himself or the management, of his estate, and that he hath been in such state of mind for more than ten years past,” etc., etc. The jury also found that said Xieholas was seised and possessed of a very large and valuable estate, real and personal. On March 7, 1890, the inquisition was confirmed and George C. Xieholas was appointed committee of the lunatic’s person and properly.

On August 17, 1907, an order of court ⁶⁰⁴ was filed removing George O. Nicholas as committee, and appointing the International Trust Company of Maryland in his place. That company was later consolidated with the Baltimore Trust & Guarantee Company and did by, such consolidation, form the Baltimore Trust Company, and the latter was. appointed committee. On the 20th of June, 1919, the Baltimore Trust Company filed a petition reciting that it had been appointed committee of said Philip' N. Nicholas, as successor of the International Trust Company, said estate of said lunatic being then administered under the jurisdiction of the Circuit Court of Baltimore City; that the said lunatic was and had been for a number of years confined in Mount Hope Retreat, and the revenue which petitioner collects from the estate of said lunatic was insufficient to defray the cost of board, clothing and other necessary expenses. It then prayed that Edwin M. Wilmer be required to file in that court an itemized account of the collections and disbursements made by him since his appointment as substituted trustee, and be required to distribute to petitioner the money which he now holds, after deducting the proper expenses allowed by the court.

It was ordered, on the 20th of June, 1919, that Edwin M. Wilmer, substituted trustee, be required to file an itemized statement of his receipts and disbursements within ten days after service of a copy of that order on him, and that the papers in the ■case be promptly thereafter referred to an auditor to state an account, distributing the balance of funds in his hands to the Baltimore Trust Company, committee of Philip Norbourne Nicholas, unless cause to the contrary be shown, etc. Edwdn M. Wilmer, substituted trustee, filed an answer to the ordi nisi, charging, amongst other things, that “the alleged appointment of said alleged committee, as well as all proceedings therewith connected, are null and void; that there was no due notice of said alleged lunacy proceedings served on said alleged lunatic; and that there was no due process of law in said alleged proceedings,” etc. On May 11th, 1922pan- ⁶⁰⁵ other petition was filed, by said Wilmer, alleging many of the things in the last petition referred to, and that there is now pending in the circuit court a “bill in his behalf, entitled Philip N. Nicholas v. The Baltimore Trust Company, Committee, alleging; lack of jurisdiction in said court, at the time of the decree therein in the premises.” It states that he has regularly, each fiscal year, in August, filed hisi annual report as substituted trustee, and submitted the same to the order of the court- thereon. The petition then submits “that, it appears to- be provident that said matter inquiring into the validity of said lunacy proceedings and the appointment, of said Baltimore Trust Company and its predecessors as committees should be heard and determined before the recognition of said alleged committee, the Baltimore Trust Company, by this court,” and prays for an order staying all proceedings instituted by the said alleged committee until after the aforesaid cause in the Circuit Court of Baltimore City is heard and finally determined. The court, on the same day, passed an order dismissing that petition, and on the 16th of May, 1922, passed a decree that, within ten days after service of a copy of that order on Edwin M. Wilmer, substituted trustee, or his solicitor of record, the said Edwin M. Wilmer, substituted trustee, shall file in that cause a full, detailed, itemized report of his receipts and disbursements from the date of his appointment to that time; that, when said report is filed the papers in the ease be referred to one of the standing auditors of that court for the purpose of stating an account, and that in the statement of said account the auditor, after allowing the trustee such credits as .are proper, shall award any balance in the hands of the trustee to the Baltimore Trust Company, committee of Philip E. Eicholas, a party defendant in the cause. An appeal was entered from the order of the 11th of May, 1922, and also' from the decree of the 16th of May, 1922, concluding, “Said appeal being taken on behalf of said Edwin M. Wilmer in his several capacities of plaintiff, remainder-man and trustee, and each of them.” ⁶⁰⁶ On March 13th, 1920, a petition was filed in the name of Norboume Nicholas, signed by David Ash as solicitor for petitioner, asking that the writ de lunático inquirendo, the inquisition and the return be quashed; that an order be passed enjoining the Baltimore Trust Company, committee, from further executing the duties of committee, and doing any acts by virtue of the appointment, and compelling it to render a full account, and requiring it to show cause why the relief prayed for should not -be granted.

An order to show cause was passed, and the Baltimore Trust Company answered, testimony was taken orally in the presence of the court, and, on the 26th of May, 1922, a decree was passed dismissing the petition. Prom that decree an appeal was taken. The proceedings to require the trustee to file itemized accounts is in Circuit Court No. 2 of Baltimore City, and the other one is in the Circuit Court for Baltimore City. The appeal from the former is No. 90, and that from the other, No. 122, of the October Term, 1922, of this Court.

By agreement, the two cases were heard together and, although they are separate cases, they are so interlocked in some respects that we have concluded that it would be better to file one opinion, although the cases will have to be treated separately. We will call the case in which are the appeals from the order of May 11th, and the decree of May 16th, 1922, No. 90, and the other one No. 122. It will perhaps be more logical to consider No. 122 first, and we will do so. No. 122.

In the case of Royal Arcanum v. Nicholson, 104 Md. 472 , Mrs. Camilla D. Nicholson, the alleged non compos mentis, and the Royal Arcanum, united in a petition asking to have the writ de lunático inquirendo, the inquisition and the return of the writ quashed, and the order confirming the inquisition .set aside, and that a new writ might issue in order that the sanity of the said Camilla D. Nicholson be lawfully inquired into. Our conclusion in that case was thus stated by ⁶⁰⁷ Judge Burke, who delivered the opinion: “We accordingly decide that in the execution of the writ the person alleged to he non compos must have reasonable notice of the proceedings and opportunity afforded to him to contest the truth of the allegations in the petition, and must he produced before the jury, unless the court, for sufficient reasons, shown, similar to-those stated in Campbell’s case, supra ( 2 Bland, 217 ) and Van Auken's case, supra (10 N. J. Eq. 190), should dispense with notice and personal attendanceIn Packard v. Ulrich, 106 Md. 246 , although we said “we do not withdraw or qualify anything said in Royal Arcanum v. Nicholson, supra, as applicable to the case there decided,” we held that it did not apply to such a ease as that where the writ, appointment of the committee1, etc., were collaterally attacked. Judge Pearce, with his well known industry and ability, reviewed the eases cited in Royal Arcanum v. Nicholson and a number of other authorities. He quoted from Buswell on Insanity, sec. 56, that, “the better opinion seems toi be, the court having jurisdiction of the subject matter of the proceedings, that want of notice will merely have the effect to render the proceedings voidable by the party himself, but not void as to other parties.

Hor can advantage of want of notice be taken in collateral procedings.” Without quoting from the other authorities cited, it may he said that they make it perfectly clear that a proceeding without such notice to the non compos mentis, or his opportunity to be present, is only voidable and liable to attack by the party himself, but not void as to other parties, and the case of Bliss v. Bliss, 133 Md. 61 , thoroughly sustains both of those cases, which are not in conflict, and also quotes- from the Nicholson case what we have quoted above, which shows that the court, for sufficient reasons-, similar to those stated in Campbell’s case and Van Aukerís case, may “dispense with notice and personal attendance.” It is unnecessary to say that if the lack of notice and absence of personal attendance made the1 proceedings void the court could not dispense with them, and therefore the effect of ⁶⁰⁸ such want of notice or personal attendance must depend largely upon the circumstances in the respective cases. In Van Auken’s case the reason given was “except in extreme cases, where such notice would be nugatory,” and in Campbell’s case the exceptions there given were, “But if he is out of the state, at the time, or it is impracticable, or as, in this instance, it would be attended with great inconvenience and injury to the afflicted person to have him brought before the jury, his actual presence may be dispensed with.” It will be observed that Judge Burke in Nicholson’s case did not confine the exceptions to the general rule to those mentioned in Campbell’s case and Van Auken’s case, but he said, “unless the court for sufficient reasons similar to those” stated in those cases, “should dispense with notice and personal attendance.” As the evidence conclusively shows that this alleged lunatic had been confined in Mt. Hope Retreat since February, 1878, twelve years before the lunacy proceedings were commenced (February, 1890), and he has remained there1 ever since without being cured, or in a condition to be discharged, it would seem strange if the law required the court to quash all the proceedings at this late date, over forty-four1 years after he entered Mt. Hope, and more than thirty-two years after the inquisition was confirmed and the- first committee appointed, because it was not affirmatively shown that the alleged lunatic did know of the proceedings or either that he was before the jury, or that the jury dispensed with his presence.

It must be left in a large measure to the chancellor who directed the writ to1 issue and confirmed the inquisition, to determine whether there was a valid reason for not giving the lunatic notice of the proceedings, or requiring him to be taken before the jury. As tire proceeding was begun by his brother, George O. Fichólas, twelve years after he, (Philip F.) went to Mt. PI'ope, during the same month that their mother’s will was probated — the brother being, one of those who had been named by their mother as trustees for