Savary v. Da Camara

Ritchie, J., delivered the opinion of the Court. On the 25th of September, 1880, the appellees filed their bill of complaint in the Circuit Court of Baltimore City, ■alleging the death of Dr. Augustus J. TL. Giraud; his dying intestate, seized of certain real estate in said city; that the complainants and the defendants, exclusive of the appellants, were, as the next of kin of said Giraud on the part of his mother, entitled to said property, which, because insusceptible of advantageous partition, they prayed might be sold and the proceeds divided among said maternal heirs. The bill further alleges that said Giraud “was the sole survivor of his family on the part of his father, and left no descendants, kindred or next of kin whomsoever, in that line surviving him; that if said Augustus J. T. Giraud had any kindred or relatives in any degree on the part of his father, they were unknown to him in his life-time, and are unknown to your orators, and are not residents of the State of Maryland and in the prayer for process asks for an order of publication giving notice to the unknown heirs of said Giraud on the part of his father, of the substance and object of the bill, and warning them by some certain day to appear and answer the same, and abide by such decree as might be passed in the cause.

On the same day the order of publication was granted, giving notice “to the unknown heirs of said Giraud on the ¹⁴² part of. his father” to appear on or before 31st day of January, 1881, and show cause why a decree should not pass as prayed. On the 10th of March, 1881, upon the mere certificate of the publication of the aforegoing order, and without affidavit or other proof of the existence or non-existence of the “unknown heirs” of said Gfiraud, or of their non-residence, they not having appeared, an interlocutory decree against the non-resident defendants was passed, and an ex- parte commission to take testimony issued. On the 28th of the same month the return of the commission and the testimony taken thereunder was filed. The witnesses to establish the failure of heirs of Gfiraud in his paternal line were two of the complainants, Mrs. Eliza A. Da Camara and Mrs. Mary Eliza Mann, who had known Dr. Gfiraud intimately for many years.

The former witness in her answer to the sixth interrogatory sajrs: “Augustus J. T. Gfiraud, up to and at the time of his death, was'the sole survivor of his family on the part of his father, and left no kindred of any degree in that line ; I had frequent conversations with the doctor in his lifetime and he always said that he had no relatives living, on the part of his father.” After proceeding to testify to the kinship of the parties in the maternal line, she was in the eleventh interrogatory asked: “Have you ever heard, or do you know, of any relatives of the said Augustus J. T. Gfiraud than those you have given ?” To this she replied: “No, sir, I have not; if there are any such, they are unknown to me or my family, and were unknown to him up to the time of his death.” Mrs. Mann, in response to the question: “What relatives or next of kin did said Augustus J. T. Gfiraud leave surviving him on the part of his father ?” testified: “ He did not leave any whatever; he always said he was alone in the world and was the last of his race, so far as relatives of the blood of his father were concerned.” To the tenth ¹⁴³ interrogatory, which was: “Have you any knowledge or information of any other relatives of said Augustus J. T. Giraud, than those spoken of by Mrs. Da Camara and yourself?” Her answer was: “Ho, sir, I know of no oth ers, and never heard of any others; if there are any such, they are unknown to me and were unknown to him.” On the 2nd of May, 1881, a final decree was passed for the sale of the real estate mentioned, in which the trustees are directed, on payment of the purchase money, to convey the property sold free, clear and discharged from all claims of the parties to the cause, complainants and de fendants, and of those claiming by or under them. The property was accordingly sold, and the sale finally ratified on the 8th of July, 1881. On the 30th of the same month the auditor’s report and expense account was ratified. This report shows the gross proceeds of sale to be $28,085.00, the principal item being $19,600.00 for the warehouse property of the deceased, of which said Mrs. Da Camara was the purchaser, and the net balance in hands of the trustees to be $26,246.98.

As yet there has been no distribution of this fund, the parties awaiting the issue of the proceedings which have culminated in this appeal. On the 25th of August, 1881, the petition, supported by affidavit of Alphonse Charles Savary, on behalf of himself and other alleged heirs in the paternal line of said Augustus J. T. Giraud, defendants in the bill as “the unknown heirs of said Giraud, on the part of his father,” was filed in the cause, alleging their residence in the city of Paris, in France, and their ignorance of the nature and existence of the proceedings, and of their interest in the property, “ up to within the past month,” when they first became aware of them through the efforts of their solicitor, Mr. Hughes, who sought them out and communicated the facts through French officials; and sotting out how they were related to said Giraud and became his heirs on the part ¹⁴⁴ ■of his father, supporting their averments with certain exhibits, and praying that the commission be remanded for further testimony, that their pedigree might be proved •and their claim established, and for general relief. In the September following, a similar petition was filed by Francois Baude and other alleged heirs of Dr. Giraud, on the part of his father, in accord with the petition of Savary. On the 16th of January, 1882, it was agreed, upon these petitions, by the solicitors of the claimants, and of these petitioners, respectively, that the Court should pass an order allowing the petitioners to file a bill of review in said cause, without further application or formality; and on the same day the Court accordingly passed the order; and on the 19th of January, 1882, the said petitioners filed their bill of review.

During the same month the petitioners respectively filed their amended and supplemental petitions, setting out their rights and claims more in full, and formally praying leave to file their bill of review, “so that it may be determined whether the said complainants are at liberty to obtain said decree, when the bill is filed by them for the sale of property for the purpose of partition, the .complainants having no interest in common with your petitioners, or with any of the original defendants to said bill, and that if it should be determined that the said complainants have a right to file said bill, that the commission in this case may be remanded for further testimony, so that the pedigree and claims of your petitioners may be established, and that your petitioners may have such other and further relief as the nature of their case may require.” To the bill of review, which is similar in substance in . its averments and prayer, to the petitions, the complainants filed a general demurrer. By consent of parties a ■proforma decree was passed sustaining the demurrer, and dismissing the bill, to enable an appeal to be takep ¹⁴⁵ promptly to this Court: the costs in both Courts to be paid out of the fund. The appeal having been accordingly prayed by the complainants of the bill of review, the point to be decided by this Court is whether the demurrer was well taken. The question of law arising upon the demurrer, is, conceding that the complainants in the bill of review are the heirs of Augustus J. T. Griraud on the part of his father, are they not concluded by the decree of sale in this case, because of the allegations in the original bill, the order of publication granted, and the testimony taken under the commission?

Under our statute of Descent, the heirs of a decedent in the paternal line, if such exist, are entitled to his real property. His relatives on the maternal side have no interest whatever in his real estate, except upon the contingency of there being no paternal heirs living. If, then, Dr. Giraud left heirs on the part of his father,’ which the demurrer admits, the complainants of the original bill had no more right in fact to his realty, or to ñle a bill for the partition of it, than absolute strangers. The question then is, can tlie parties who succeeded to the real estate of Dr. Giraud upon his death, be deprived of their vested ownership, and his maternal relatives who had no right or interest in it whatever, appropriate this property to themselves through the proceedings had in this case, which were instituted simply for the sale of the property, based upon a supposed right to the partition of it, because not susceptible of advantageous division ?

The real issue in such a