51 A. 566 | Md. | 1902
This case has been here twice before. The first appeal is reported in
The single question is: Under the circumstances above narrated can Charles E. Baker now successfully assert that those two shares of Car Wheel Company's stock belong to him and not to the estate of his father? If he can, then whilst his brothers and his sister receive, including advances, $30,751.84 each, he has received in advances the sum of $35,000.00. If he sustains the claim he now makes he must *632 repudiate the admission made to his brother to the effect that the two shares did not belong to him; and besides all this, he must recant the specific admission made by him in his answer to the effect that the amount with which he was properly chargeable as "advances" was thirty thousand and not thirty-five thousand dollars; because the sum of thirty thousand dollars was reached only by deducting the five thousand dollars charged for those two shares, and had he retained those shares and had he not surrendered them to the executor, the total of his advances would have been thirty-five thousand dollars — a sum he distinctly denied to be accurate.
It is true that at the time Charles E. Baker surrendered these two shares to the executor the status of the "advances" was in dispute and in doubt. If the "advances" — computing Charles E. Baker's at thirty-five thousand dollars and, therefore, as including the value of the two shares of Car Wheel Company's stock — had been decided to be debts according to the contention of some of the litigants, Charles E. Baker would have been liable to the estate in a sum considerably larger than the share which he would have received, and that excess he would have been required to pay over to the executor. If, on the other hand, the "advances" were to be put on the footing of technicaladvancements, then no such liability would exist; and whilst he would receive nothing more from the estate than he had already received in advances, he would still have received in advances a larger sum than any of the other residuary legatees. With these alternatives before him and being uncertain as to whether the advances would ultimately be held to be debts or tantamount to advancements, and with a distinct view of escaping the liability which would be fastened upon him if the advances were treated as debts, he surrendered the certificate for the two shares and was credited with five thousand dollars, and was thereby released from liability to that extent had the advances been determined to be debts. Since it has been judicially ascertained that they werenot debts, and therefore that he could not have been held accountable for any excess in the amount advanced to him over *633 the amount payable to him under the will, he has endeavored, and is now striving, to repudiate what he deliberately did at the beginning of the litigation and to occupy a position directly opposite to the one asserted by him throughout the entire controversy. In other words, he now assumes an attitude distinctly the reverse of the one he first took with reference to the same subject-matter in precisely the same proceeding. This is, as the Scotch laconically say, "to approbate and reprobate."In re Chesham, 31 Ch. Div. 466. Can he do it?
If Charles E. Baker made a mistake in surrendering to the executor of his father's estate the two shares of the Car Wheel Company's stock, it was a mistake of law. The executor claimed that the "advances" were debts due to the estate. Charles E. Baker disputed this. The question as to whether they were debts or whether they stood upon the footing of advancements was purely a question of law, and in no sense one of fact. Without any fraud, imposition or misrepresentation on the part of the executor, Charles E. Baker deliberately made his choice between the alternative legal views presented; but in making that choice he made a mistake; as the subsequent development of the litigation shows.
His opinion of the law as to the status of the advances, though at first different from, finally coincided with that of the executor, or at least he voluntarily accepted and acted on the contention of the executor; but according to the decision of this Court on the last appeal, the view concurred in by both executor and legatee was erroneous. The situation which confronted the appellant at the outset was precisely analogous to that which arises "where a man demands money of another, as matter of right, and that other, with a full knowledge of the facts upon which the demand is founded, has paid" the sum demanded. The one so making payment "can never recover back the sum he has so voluntarily paid." "If," said GIBBS, J., inBrisbane v. Dacres, 5 Taunt. 151, "we were to hold otherwise many inconveniences may arise; there are many doubtful questions of law; and where they arise, the party has an option, either to litigate the question, *634
or to submit to the demand, and pay the money. I think, that by submitting to the demand, he that pays the money, gives it to the person to whom he pays it, and makes it his, and closes the transaction between them." This was quoted with approval inSisson, c., v. Mayor, c., Balto.,
Charles E. Baker, with a full knowledge of all the facts as already detailed at length, voluntarily chose to acquiesce in an erroneous view of the law with reference to the status of *636 the "advances" made to him, though he had an option to litigate the question or to submit to the executor's demand, and he finally closed the transaction by deliberately surrendering the stock, rather than incur the risk of having the value of that stock adjudged to be a debt due by him to the estate. He cannot now be heard to impeach his own act after discovering that both he and the executor proceeded upon an entirely mistaken conception of the law.
But again: The evidence shows that in point of fact these two shares of Car Wheel Company's stock never did belong to Charles E. Baker; and that he cannot rightfully claim them. Whilst he is charged with the sum of five thousand dollars for them on the ledger; on the balance sheet they appear as a loan to him. The uncontradicted evidence of William Baker shows that those shares were assigned to Charles E. Baker merely to enable him to become a director in the Car Wheel Company; and it further shows that Charles E. Baker distinctly stated that to be a fact. This evidence has not been questioned in any way and Charles E. Baker has not undertaken to dispute or to controvert it. Upon the former appeal those shares were treated as belonging to the estate of Charles J. Baker and there is nothing in the decision of that case to preclude the parties from showing that the shares did not constitute part of the advances to Charles E. Baker. The evidence is quite convincing that he never did own them. On the ground, then, that Charles E. Baker never was, and never was intended to be, the owner of the two shares and that they were not assigned to him with a view of vesting them in him, the claim which he sets up to them now must be disallowed.
For the reasons we have assigned we are entirely satisfied that the order of the Circuit Court in sustaining the exceptions to account D, and in overruling the exceptions to account C, is absolutely right and that it ought to be affirmed.
Order appealed against affirmed with costs.
(Decided March 6th, 1902.) *637