Worthington v. Worthington

Pattison, J., delivered the opinion of the Court. . The appeal in this ease is from the decree of the Circuit Court of Harford County, in equity, dismissing the bill as to the appellant and disallowing his claim. This suit was instituted by the appellant, John Worthington, and his daughter, Blanche W. Ely, against the executrix and devisees of Sarah H. Slymer, deceased, asking for the sale of the real estate of the said Sarah H. Slymer for the payment of her debts, on account of the insufficiency of the personal estate of the said deceased. The bill states that Sarah H. Slymer was, in her lifetime, indebted unto the appellant and Sarah C. Worthington, his wife, upon an open account, to the amount of $3,504.45, including interest; that after the death of the said Sarah H. Slymer all the right and interest of the said Sarah O. Worthington in and to said claim was assigned unto' her husband, John Worthington.

And that the said deceased was, also, indebted unto the said Blanche W. Ely in the sum of $132.00, upon an open account, for nursing said deceased, and care of her house, etc., with interest thereon from the first day of October, 1902. That the said Sarah H. Slymer departed this life on or about the first day of October, 1902, seized and possessed of real and personal estate in the city of Havre de Grace, Harford Coitnty, Maryland, which, by her will, she devised as follows: one house and lot of land she devised unto her husband. Andrew E. Slymer, in lieu of his curtesy in her estate, which Andrew E. Slymer, after her death, conveyed to the defendant Mary A. Mitchell, wife of Robert O. Mitchell, subject to a mortgage to the Columbian Building Association of Harford County, for six hundred dollars, and to the payment to Joseph Hankeln of two hundred dollars; another lot of land she devised to her granddaughter Blanche W. Ely, wife of Clinton C. Ely, in fee simple; another lot of land she devised ¹³⁸ to her granddaughter Margaret A. Botts, wife of Archer M. Botts, for life and at her death to her children then living, and providing if she should die without leaving issue, then to the defendant, Sarah O. Worthington in fee; and after á small bequest to Caroline or Goldie Taylor, she devised and bequeathed all the rest and residue of her estate, real and peisonal, unto her said daughter, Sarah O. Worthington, and appointed her executrix. The bill then states that the personal estate was of small value and insufficient to pay the debts of the deceased, and that the plaintiff and the other creditors were entitled to have their claims paid out of the-real estate, and prays that it he sold for that purpose.

Joseph Hankeln, anon-resident defendant, failed to appear and answer said bill and a decree pro confesso was obtained against him. All the other defendants appeared and answered. The answers of the Columbian Building Association of Harford County and Mary A. Mitchell and Robert O. Mitchell, her husband, after denying the indebtedness of the deceased to the plaintiffs or either of them, allege that the claim of John Worthington upon which he bases his complaint, is the claim of Sarah C. Worthington who assigned it to him. That the decedent in her lifetime conveyed and assigned unto Sarah C. Worthington real and personal property of great value, which was intended by her as a gift to her daughter and was to be a complete acquittance of all claim which her said daughter might make against her or her estate.

And that subsequent to the death of the deceased, Andrew (Anthony) E. Slymer conveyed unto Mary A. Mitchell the property so devised to him, subject to the mortgage of the Columbian Building Association, ás alleged in the bill. The answers further allege that the property so devised unto Andrew E.. Slymer, although standing in the name of Sarah H. Slymer. never in fact belonged to her, but was the property of her husband, Andrew E. Slymer; that it was purchased and paid for by him but at his request was conveyed to her; that the devise so made to him was in recognition of the facts above ¹³⁹ stated and was intended to perfect his title to said' property; that after the death of Sarah H. Slymer, Andrew F. Slymer expressed himself dissatisfied with the terms of her will and made known his intention to renounce it, hut he was dissuaded from such course by Sarah O. Worthington, and in consideration therefor he was paid' by Sarah O. Worthington, acting for herself and the other devisees, a large sum of money; that during these negotiations neither Sarah O. Worthington nor Blanche W. Ely ever revealed to him that they, or either of them, held secret claims against the estate of his wife, and that had he known of such claim he would not have accepted the settlement; that in consequence of their deceitful action the plaintiffs are estopped from setting up any claim that would diminish his interest in the estate. The answer pleads limitation and denies the insufficiency of the personal estate of the decedent'to pay and discharge all her just debts due and owing at the time of her death.

The answer of Margaret A. Botts and Archer M. Botts, her husband, also denies all indebtedness of the decedent to the plaintiffs or either of them, and alleges that the testatrix, Sarah H. Slymer, never knew of the existence of the alleged claim or that she was being charged with the same during; her lifetime. The answer further alleges that on the fifth day of August, 1872, at a time when the claim of Sarah C. Worthington and husband amounted to more than four hundred dollars, the decedent, in consideration of natural love and affection, conveyed to Sarah O. Worthington a valuable farm containing eighty acres of land. The answer further alleges that Sarah O. Worthington, as residuary legatee, took real and personal property amounting in value to at least three thousand dollars; and that the only debts filed against the estate, except the claims of the plaintiffs, were two small ones, amouting in the aggregate to $40.73. The answer further alleges that on the 22nd day of April, 1901, the testatrix assigned to the said Sarah C. Worthington a mortgage for five hundred dollars, and that on the 20th day of August, 1902, a short while before the death of the testatrix, she as ¹⁴⁰ signed a mortgage for two thousand dollars unto her three grandsons, William Nelson, John Parker, and George Mitchell Worthington, sons of Sarah O. Worthington.

The answer also pleads limitation. To sustain the issues joined, a number of witnesses were examined and a vast deal of testimony taken, the same covering over four hundred pages of the printed record. Both the plaintiff and defendant filed exceptions to the admission of much of the testimony taken. Upon the submission of the case to the Court below, it allowed a portion of the claim of Blanche W. Ely, but dismissed the bill as to the plaintiff John Worthington and disallowed his claim.

From this order or decree the appellant appealed to this Court. We will first consider and dispose of the exceptions. The plaintiff excepted “to so much of the testimony of the (defendants) witnesses, Robert O. Mitchell, Archer M. Botts, Mrs. Margaret Botts and Mrs. Mary A. Mitchell, as purports to give ti’ansactions alleged to have been had with, and statements made by Sarah H. Slymer, deceased, whose executor, Sarah C. Worthington, is a party defendant to this suit, because the said Robert, Archer, Margaret and Mary are each parties defendants in said suit.” The Court below held that this exception was too general and overruled it. Sec. 8 of Art. 85 of the Code provides: “In actions or proceedings by or against executors, administrators, heirs devisees, legatees or distributees of a decedent as such, in which judgments or decrees mayfbe rendered foil or against them,and in proceedings by or against persons incompetent to testify by reason of mental disability, no party to the cause shall be allowed to testify as to any transaction had with, or statement made hy the testator, intestate, ancestor or party so incompetent to testify, either personally or through an agent since dead, lunatic or insane, unless called to testify by the opposite party.” This statute does not make parties to a cause incompetent to testify as to all matters, but only to such matters as are prohibited by it.

This Court in the case of Smith v. Humphreys, 104 Md. 289 , in reference to this sec ¹⁴¹ tion of the Code, said: “The appellees are therefore in error when they said in their-brief that the Act of 1904 restored the provisions omitted from the Act' of 1902, and as they excepted to ‘all the testimony’ of Mrs. Smith ‘on the ground of her incompetency to testify as a witness in this case,’ such exception could not be sustained, if she testified to anything that the statute does not prohibit, because it is too general. Under such an exception the Court is not required', and it cannot be expected, to go through the testimony and pick out such questions as are objectionable because the witness is incompetent to speak of the subject referred to; * * * that the defendants should have excepted to designated questions and answers, on the ground of the incompetency of the witness, if they desired the exceptions, to be passed on by the Court below, or by this Court, and not having done so, they cannot 'be excluded under that general exception to her incompetency as a witness.” While this exception does not go to qll the testimony of the witnesses on the ground of their incompetency to testify, yet it, in general terms, excepts to so much of the testimony as