Ex Parte the Estate of Bristor

Urner, J., delivered the opinion of the Court. The appellant, Jane B. Moore Bristor, on September 16, 1910, wrote to a representative of the Board of Foreign Missions of the Presbyterian Church a letter in part as follows: “As I have entered my seventieth year and am an invalid from exposure and wounds received upon battle fields of the Rebellion where with my mother I worked to relieve the wounded, I am putting my affairs in order to be ready for the great summons. Lately I have given my pictures and books largely to Lincoln University and Asheville Industrial School, Ib O., and as I read again in The Land of the Vedas of the awful condition of women in India, I long to do something for their relief. If I had known that special work would be allowed, then several deeds that have been made to the American Board would have been in favor of my beloved church * * * I intend to prepare—that is, my lawyers will—two deeds, one of which will give to my son, my only living child, about forty years old, and single, nearly one thousand dollars per year in ground rents and in which he is to have a life interest only * * * I have always supported by son.

He is not a strong man, and at one time early in life he had an attack of melancholia and wandered from home hoping to get a position. He is a member of the Presbyterian Church, perfectly moral in his habits; but, in my opinion, persons who have had mental trouble should not marry, and Charles would be a prey if I left him all I have made or even all I have inherited. I provide for him amply, but at his death these rents in which he has a life interest go to the Presbyterian Board for special work among destitute girls in India, China and Africa. The other deed will convey a number of ground rents to you for the same work.” (It was stated elsewhere in the letter that these rents would amount to about $1,000 per year.) “What I have reserved for ⁶¹⁶ myself, my son’s and my own use, will probably be deeded to you later on, or at least some to borne and some to foreign.

My tastes are all literary, and I greatly wished to do some good work in that line before I go, but more was to be made by attending to investments, and I have made in twenty years more than three times what was left me by my mother, besides giving away about thirty thousand dollars * * * I want to deed now lest I should be called away suddenly * * * My mother was very much impressed many years ago by the satement in the Life of Wesley, that he attended so faithfully to all his affairs that he left directions what should be done with any loose change that might be found in his pockets at the time of his death.” This letter, sealed in an envelope, was handed by Mrs. Bristor to her son Charles to be mailed. He performed this duty after he had opened and’ read the letter and had it copied by his attorneys, o Soon afterwards he filed a petition in Circuit Court Ho. 2 of Baltimore City for an inquisition as to his mother’s sanity. He alleges in substance in the petition that his mother has been for more than ten years past “of that degree of unsoundness of mind that unfits her to be in possession of her property and to be clothed with the power of alienating any part of her estate;” that she has been “a woman of strong personality and active mentality; that she was a nurse on battlefields in the Civil War and during her subsequent years has suffered from the exposure and’ hardship to which she was subject in that honorable service;” that her husband, from whom she was divorced, is deceased; that she has been for many years interested in the temperance cause, but more recently has devoted all her time, thought and energy to the Woman’s Suffrage cause and the work of Foreign Missions; that to such an extent has she thought and written upon these movements and so largely has she contributed to their advancement, especially in the case of mission- work in foreign fields, (that her mind, enfeebled by advancing years, is now controlled by delusions on the subjects indicated, and especially that of foreign missions, and that she is deprived of reason and judgment and ⁶¹⁷ is impelled to give nearly all of her property to foreign mission work to the exclusion of her relatives who have had every reason to expect to he the natural objects of her bounty. This application was supported by the petitioner’s affidavit, and a writ was issued by order of the Court directing the sheriff of Baltimore City to inquire by a jury “whether the said Jane B. Moore Bristor be so far deprived of her understanding that she is altogether unfit and unable to govern herself or to manage her affairs.” A jury of fourteen members was empaneled and after a prolonged and contested hearing, twelve of the jurors, being a sufficient number under the law (Alexanders Chancery Practice, 224), joined in a finding that Mrs. Bristor was of unsound mind and incapable of the government of herself or the management of her property.

After the return of the inquisition to the Circuit Court a motion to quash was filed by Mrs. Bristor upon various grounds, of which the only ones necessary to be considered were that the inquisition was tried and heai’d by the sheriff’s deputy and not by the sheriff in person, and that the finding was against the evidence and the weight of the evidence adduced before the jury. A complete stenographic record was kept of all the testimony taken at the inquisition and was filed in the Court below as part of the proceedings. Upon the evidence thus presented the Court sustained the finding of the jury, confirmed the inquisition, and appointed a committee to assume control of Mrs. Bristor’s person and estate. In the oral opinion of the learned judge who passed the decree his conclusion was stated, as to the two specific objections we have mentioned, that the verdict of the jury was correct on the evidence, and that no satisfactory authority had been shown for invalidating the inquisition, on the ground that the sheriff did not personally preside, in view of the long established practice in Baltimore City for the chief deputy to conduct proceedings in this nature.

The first question we have to determine is whether the decree confirming the inquisition can be reviewed by this ⁶¹⁸ Court, a motion to dismiss the appeal having been filed on the theory that the action of the Court below is final. Section 107 of the Chancery, Article (16) of the Code provides: “The Court shall, have full power and authority, in all cases, to superintend and direct the affairs of persons non compostes mentis, both as to the care of their persons and the management of their estates, and may appoint a committee, or a trustee or trustees, for such persons, and may make such orders and decrees respecting their persons and estates as to the Court may seem proper.” It is provided by Article 5, section 26, of the Code, that :■ “An appeal shall be allowed from any final decree, or order in the nature of a final decree, passed by a Court of Equity, by any one or more persons parties to the suit”, * * * While we have found no instance of an appeal to this Court from a decree ratifying an iniquition of lunacy, there are cases in which appeals from orders refusing to supersede inquisitions, where restoration to sanity was claimed, or to rescind the decree of confirmation for alleged irregularity in the proceedings, have been entertained. Johnson v. Safe Deposit Co., 104 Md. 460 ; Greenwade v. Greenwade, 43 Md. 313 ; Royal Arcanum v. Nicholson, 104 Md. 472 . The only statutory authority under which the right to prosecute such appeals could have existed is that contained in the section last cited.

In Tome v. Stump, 89 Md. 264 , the right of appeal under this section from an order appointing a committee for an habitual drunkard was distinctly recognized. The power to supersede the inquisition is derived from the same statutory source as the power to set it aside originally. In every such instance the judicial authority described in the section quoted is as “comprehensive as language can make it”. Estate of Dorsey, 59 Md. 69 .

The Court may refuse to issue a commission, even in a case of undoubted insanity, if such refusal appears to be for the best interests of the person affected. Rebecca Owings Case, 1 Bland, 293 ; and the inquisition may be set aside or superseded if the party has been improperly found to be a ⁶¹⁹ lunatic. Alexander’s Chancery Practice, 227, 238. The judgment of the Court may he based upon depositions, or the respondent may be discharged after a personal examina.tion.

If the Court is convinced of the party’s sanity it should not hesitate to supersede or set aside the inquisition. This procedure is independent of the right of the alleged lunatic to traverse the finding and to have the issue as to his sanity determined by a jury of the county upon a trial before the Court. (Ibid.) The controlling question to be determined by the Court, upon motion either to quash or to supersede, is whether the person alleged to be of unsound mind is in fact incapable of managing his person or estate. A finding of insanity by the jury is advisory, and is a prerequisite to an adjudication by the Court to that effect, but it is not conclusive as against the objection of the party protesting his competency and invoking the Court’s own judgment upon this vitally important question.

We see no reason to doubt that a decree passed in the exercise of such a general authority and jurisdiction is a proper subject of review under the terms of the statute giving the right to any of the parties to a suit to appeal to this Court from any final decree of a Court of Equity. It is to be observed that the Code, while conferring upon Courts of Equity general jurisdiction with respect to persons non compotes mentis, does not prescribe the method by which the incapacity shall be ascertained. The course of procedure leading up to an adjudication of mental unsoundness remains as it existed, independently of statute, under the English practice, whose origin and theory are fully and clearly discussed in Hamilton v. Traber, 78 Md. 26 . The decree confirming the inquisition in this case was therefore not passed in pursuance of a special and limited jurisdiction created by statute, and the present question is not affected by the rule that in such proceedings a right of appeal does not exist unless it is specially conferred.

Jackson v. Bennett, 80 Md. 76 ; Textor v. B. & O. R. R. Co., 107 Md. 228 . ⁶²⁰ The cases in other jurisdictions cited to support the motion to dismiss the appeal were mainly concerned with prescribed statutory procedures which were found not to contemplate any appellate review. Another preliminary question to be determined is that relating to the conduct of the inquisition by the deputy sheriff. It is conceded that the deputy who presided has' held his office for many years and is customarily assigned to duties of this nature under all writs of inquiry. There is nothing in the record to indicate that any objection to his serving in this capacity was made at any time during the progress of the inquisition.

Eor this reason, and in view of the long-established practice in Baltimore City, and in at least one of the counties, as we are informed, to have the sheriff’s deputy preside on such occasions, we should be very strongly disposed, even in the absence of authority, to affirm the action of the Court below in overruling the objection now under consideration. But we are satisfied upon precedent and principle that the regularity of the proceedings was not affected by the fact, that they were conducted by the deputy sheriff. In Tillottson v. Cheetham, 2 Johnson, 68 (JST. T. Supreme Court of Judicature), an elaborate opinion by Ci-iiee Justice Kent discussed the question now presented.

In that case a motion was filed to set aside an inquisition on the ground of its execution by the sheriff’s deputy. “This,” said the learned jurist, “appeared to me upon the argument to be a novel objection; for it has been usual to execute writs of inquiry before the deputy with as little hesitation as before the sheriff. * * * The deputy is an officer coeval in point of antiquity with the sheriff, and is recognized in the most ancient statutes. * * * The creation of deputies arose from an impossibility of the sheriff’s peiv forming all the duties of his office in person. The powers of the deputy have consequently been ascertained at an early date. The general criterion by which to test his authority is declared in the case of Levett v. Farrar (Cro. Eliz. 294), in which the Court said that if a writ is directed to the ⁶²¹ sheriff by the name of his office, and not by a particular name, and doth not expressly command him to execute it in person, the under sheriff may execute it. * * * There are numerous cases within the circle of the sheriff’s duties in which these inquests of office are requisite, and in which no doubt has been entertained that a deputy was competent to summon a jury and take inquest, although the objection would equally go to every inquest in every possible case. * * * 'j'kg cageg which the sheriff must personally preside at the inquisition are all special cases in which the writ requires the personal attendance of the sheriff.” The writs relating to inquiry of waste and redisseisin are mentioned as instances in which the attendance of the sheriff is commanded in propria persona, and the conclusion is stated that except in cases where the statute or the writ itself directs the sheriff to attend in person “there is no case in which a writ of inquiry may not be executed by a deputy.” In the present case there is no direction for the execution of the writ by the sheriff personally.

In Turner v. Holtzman, 54 Md. 159 , it was held that a deputy sheriff duly appointed possesses such authority as the sheriff himself may exercise. It is argued' that the duty of presiding at an inquisition involves the performance of judicial functions, such as the determination of questions as to the admissibility of evidence, and that such authority can not be delegated by the sheriff to a subordinate officer. In Tillittson v. Cheetham, supra, it was complained that the deputy sheriff who officiated had improperly excluded the testimony of certain witnesses, but the Court nevertheless sustained the regularity of the proceedings. It was held that the duties were ministerial, as they required no judicial