Trupp v. Wolff

TRUPP, etc., GRANT GARRISON et al. v. C. SUSAN WOLFF Term, September [No. 1974.] February Decided argued The cause was and before Menchine, Moore, Lowe Melvin, JJ. Needle,

I. Avnet and Duke Donald with whom was brief, appellants. Johnson Botoie on the for Sykes, Melvin J. was whom Max R. Israelson brief, appellee. for J., opinion J., delivered the of the Court. Menchine,

Lowe, dissenting opinion page filed at dissents infra. Wolff, sought appellee, C. On October 1968 Susan declaratory City. relief in the Circuit Court of Baltimore Trupp, Wolff, only child of Florence Hendler Mrs. marriage. during Trupp’s first the loss of Mrs. After born husband, Trupp Trupp, L. an Mrs. married Bernard her first company, advertising for an oil whose death on executive genesis of action. August 1,1968 was the Trupp By gift April gave 1965 Mrs. deed of dated portfolio Trupp stock valued at Mr. a somewhat diversified largest twenty-four dollars. The three hundred thousand Company portion by which she far was stock of The Borden father, Hendler, her L. Manuel who was had inherited from previously Trupp’s sustenance. The the source of Mrs. Trupp auspices Bernard was conducted under the transfer to attorney, Sidney of an Weiman. years later,

Upon Trupp’s Trupp three Mrs. Mr. death among her had divided the stock his realized that husband using yourself” six a “do it trust form from a book brothers immediately her titled How to Avoid Probate.1 She advised gift Trupp daughter outright, that the to Mr. had not been Although Mr. but rather was conditional. had the during lifetime, income and absolute control of the stock his solely upon condition, according Trupp, he had to Mrs. it Trupp’s bequeath corpus daughter, that he Mrs. Susan apparent so, Wolff. it became that he had not When done brought declaratory promptly suit for Wolff other City, naming relief the Circuit Court of Baltimore as Trupp’s Bernard estate and his six brothers. defendants crucial, pleading Partially preliminary, a result of but January 18, until skirmishes the trial was not commenced taking of with the Nearly a was consumed month apparent the record the from testimony. For reasons not nor the decree until March 1st opinion was not rendered years after the 1974, over three March 15th of filed until this The essence of taking testimony of was concluded.2 imposition of a constructive opinion the long-awaited was of Susan Wolff. upon securities in favor trust the pages synopsize two thousand than over Rather exhibits, we one hundred testimony in excess of and describe lawyers Trupp’s Mr. distrust of 1. It is unfortunate and ironic that both create, attempt this, promoted, if it did not the led him to indeed which litigation years. which has extended over 6 Md. Rule 18 b. testimony pertinent will the treat issue each raised appellants respond as we to these issues. We mildly were surprised argument appellants at to hear concede that all of questions these were evidentiary nature. We were not so surprised to find simplicity that the of that shorthand markedly characterization contrasted with the issues’ analytic complexity.

Necessary Parties upon The fulcrum which all other are issues balanced is Trupp whether necessary party. Florence was a Even that seemingly simple question was raised an unusual manner. filing plea demurrer, Rather than in abatement or appellants petition chose to the court to order that Florence Trupp plaintiff party be made a under Md. Rule 203 d alleging party she strategy that was the real interest. The apparent Trupp attorney since Mrs. and the Sidney only living persons cognizant Weiman were two surrounding circumstances transfer the stock to Trupp. Trupp Bernard if party Thus Florence made were plaintiff, key to Susan Wolff’s relief would be lost under Statute, Code, the Dead Man’s Art. § Art., substance of which is now Courts 9-116.That statute precludes testimony party regarding any aof transaction testify with or statement a decedent “unless called to opposite party.” Trupp why chancellor ordered show Florence cause plaintiff pursuant she should be made a to the petition. response Her following defendants’ included the disclaimer: says answering motion,

“Further she that she controversy any disclaims interest between plaintiff, Wolff, defendants; Susan C. any right growing out of the contract referred to in Wolff; Complaint right the Bill is a of Susan C. Dring H. has no intention to Florence formally right bring any another renounces against substantially action for the defendants any ground of breach of relief on identical having deceased; that no agreement with the litigation, it this would in the outcome of interest require her unfair to to be a be burdensome party engage and to counsel.”

Choosing err, all, side of caution the to if at on the party plaintiff join Trupp as a chancellor declined to Mrs. defendant, sponte.3 join her sua but elected to as Appellants prejudiced by they were contend that petition denial to make Mrs. chancellor’s of their plaintiff, so, making and even were that not his error prejudicial. her a defendant was

Appellants petitioned the trial court on the basis of Rule d203 which reads: appears originally

“Where it that the has action party been filed in name of the real interest a, may, upon petition under section the court of a defendant, party order the real in interest to be party plaintiff.” made a support argument, they their allude to the

mandatory language of 203 a. prosecuted in name

“An action shall be party except provided in in interest section real b.”

Significantly, however, permits b but does not require a bring person an who contracts for the benefit of another among which was: several conditions 3. The order contained any party rights prejudice “(3) this Order is without any Trupp; object H. ana to evidence of the said Florence admissibility testimony, rulings if offered as to the of her legal any party at the trial on the basis shall be made testimony; presented at the time of said issues on the record arguing escapes us, meaning issue is raised we note no While its preclusion preserves Man’s Statute the Dead somehow condition testimony. Trupp’s equally it law now makes name.4 Decisional in his own action beneficiary third contract of a clear that 72, Spates Spates, v. 267 Md. on his own behalf. likewise sue short, either or both the In and our case law allow 77.5 b§ beneficiary bring suit to on the contract. and/or offeror (4) 4. Md. Rule 203b and may bring “Any following persons an action in his own the person joining the him the for whose benefit

name without action is brought: (4) person has been with whom or in whose name a contract another; of- made for the benefit concept nearly who sue on a full circle in our 5. We have come beneficiary privity party law controlled rather contract. At common third than beneficial Only consideration moved could interest. those from whom country However, today prevailing in is that the view this enforce it. beneficiary the Brantly party right to sue. in interest has the as the early Contracts, citing Lindsay, and the S. 143 Hendrick v. 93 U. §113 Hoffacker, 143;Seigman Maryland Schaefer, v. 57 v. First Nat’l. Bk. v. 24 Md. cases of Small 400; Clark, 321; v. Md. Tel. 61 Md. Simons Sons Co. Co.,99 Md. 141. Appeals succinctly history in Court of set out the The transitional 52, Curtiss-Wright Corp., Md. 56-57: v. 190 Mackubin privity original between law was that “The rule of the common requisite plaintiff is to maintain an action and the defendant the contract, though the benefit of a third the contract is for on a person. even gradual rule. v. relaxation of this Seaver There has been a 1187; 639, Ransom, 233, E. 2 A.L.R. 224 N. Y. 120 N. Ultramares Touche, 174N.E. 74 A.L.R. 1139. Corporation N. Y. 255 Co., Cir., City Ry. 2 F. Pennsylvania v. New York Steel Co. subject: following 721, 749,Judge Noyes ‘In the on the the comment made to that that England the rule is adhered in of the States some parties; upon only persons are the sue a contract who can made cannot person a contract is whose benefit a third for upon is said for the rule to it. The reason an action maintain making contracting party privity that there is no between person does not promise move that the consideration and the third simplicity directly merit of The rule has the latter. from the founded, too, upon wholly injustice. permit It is to but is calculated artificial if the in it and desire they why, reason real and substantial There is no distinctions. person recognize third parties interest of a to a contract it, upon right give of action him a and intend to to do so.’ should not be able right third-party recognize generally of a now The Courts expressly for the benefit beneficiary made sue on a contract person beneficiary. beneficiary A third or a creditor either a donee purpose appears of the beneficiary that where it is a donee promisee make a the asserted performance thereof is to obtaining promise of the right against upon beneficiary him a gift to confer supposed or performance due nor neither promisor to some beneficiary.” promisee to the due from the to be dispute Appellants Wolffs status as do not Susan donee beneficiary party real in interest to the suit. Thus and hence though Trupp properly view, even Mrs. could have our name, ability her to do so brought in her own made suit plaintiff. On the appropriate less as the face Susan Wolff no d, supra, it that the rule statute, Md. Rule is clear operative only originally appears action has not “Where it that the party in in the real been filed name interest. . . .” was an appellants Susan Wolff

Since do maintain inappropriate suit, only party to file but they it, also initiated have not met the condition could have “originally . . precedent rule. was indeed . The suit .,” though . . filed of the real interest the name preferred.6 obviously litigant appellants the would have sharp in R. rule d stands contrast to We note that our 203 power 19A, providing the federal courts with broad F.R.C.P. involuntary. Inasmuch as joining voluntary and parties, rules, Maryland patterned after federal 1 rules are the the 295, Appeals Pleading Practice, and the of Poe’s and Court § 19A, comparable we find its adopt provision did not conclude, simply, that R. conspicuous. We 203 must absence says. d means what it unnecessarily quote result, appellants

Pursuing same the Code, Ed., Md. Art. Pomeroy Equity, 4th 114to bolster on § 3-405) provides: 31A, (now which 11 Courts Art. § declaratory sought persons shall all “When relief any interest parties or claim who have be made declaration, and no by the which would be affected rights persons not prejudice of shall declaration proceeding.” parties to the misplaced. upon this section appellants’ find reliance

We necessary v. party Reddick Assuming absence of a brought Rule of Md. Although virtue suit could have discussion, b, infra, question she also whether we 203 “real leave for party in interest.” 596

State, 18, 30, Appeals explained 213 Md. the Court of purpose appellant there, when here, that section as complained that an an adverse interest in the joined. Citing language declaration was not and §11 general equity persons rule that all should be made beneficially suit, parties legally are in the who interested explained the Court that: necessary object requires

“The of the rule that all rights parties joined no to be is to sure that one’s Court’; adjudicated ‘day unless he his are has had complete there will be a determination (this being dispute in one suit latter the matters subject exceptions pertinent). certain not here Chepko’s membership All of Dr. Board They fully present in the case. were aware testified being conducted, and what was involved that it was principle of law therein. There is a well established knowledge pending full person has that a who determine, litigation affects, will it and [w]hat and, appear, who rights, his is entitled to but who party, and intervene as a makes no effort objection, permits without a conclusion thereof proceedings person is such concluded if record. effectually as he were named 311, 341;Rody Hamilton, 304, 25 A. 76 Md. Albert v. these, 200, 195, 2d 29 A. 290. Cf. Doyle, v. 181 Md. 220, 235, 1020;Riley v. State, 17 A. 71 Md. Parr v. 585; 27, 28, Bk., A. First Nat’l 145, 159, 2d Sachs, A. Lichtenberg 200 Md. 450.” Practice, 297. Pleading

Accord, 1 Poe’s § disclaimer Trupp’s party apparent Mrs. from is at once It she bound herself interest that renunciation and formal Hadley, 218 decision, v. Wilhelm notwithstanding the court’s Co., 317, Mtge 171 Md. Realty 152, v. Md. Stinchcomb “ Furthermore, ‘day ”. in court’ her thereby forfeited of matters determination complete “... there [was] appellants were Reddick, supra, so that suit,” dispute in one subsequent litigation or inconsistent subjected to not 31A, (now Art. Courts liability. purposes The dual § non-joinder met, Trupp’s was 3-405)having Mrs. Art. been § inconsequential. legal grounds, strong policy preceding to the addition adoption appellants’ position. To against

reasons militate “necessary” party plaintiff Mrs. was a hold that gift with the costs every a conditional donor of would burden necessary the condition. litigation to enforce and concerns of encouraged by hardly such would Potential benefactors litigation despite their portending albatross, future an ownership. attempted divestiture complaint appellants’ that the specious additional

We find prejudiced them making Trupp a defendant error of exception Dead placed to the within the because she “opposite subject call of the persons to the Man’s Statute for have been party at all she would party.” she not been a Had when as a defendant eligible testify just as she was called joinder as “opposite party.” Her forced daughter, the her appellants in neither better nor placed defendant position. worse “necessary party stop

Appellants with the do not fundamentally they analysis, are plaintiff” but concede predisposition Trupp’s toward with Mrs. natural concerned Conceding arguendo appellee. daughter, welfare of her appellants next two issues question their first original reformulate, terms, their theme. in different Party in Interest Statute, arguing Man’s the Dead First, they again assert required be a procedurally were not even if she spirit, if outcome and plaintiff, was interested she testifying. her from precluded letter, the statute reasoning. by appellants’ persuaded Again we are not Art. Statute, (now Art. Courts Man’s § The Dead § 35, 1, (now light Courts of Art. 9-116) read must be Blizzard, 209 history. Shaneybrook 9-101) and its Art. § the extreme Maryland adhered to 1864 304. Prior 598 testimony

common law rule which only excluded the parties persons having to the suit but all pecuniary a direct proprietary interest remedy the outcome. To hardships by rule, Legislature created in 1864 the provided 35, in Art. 17 that longer witnesses would no giving excluded from evidence “except reason of interest excepted.” as hereafter

The abolition disqualification for interest was part sweeping instituted as of a England more reform in vestige disqualification where no in civil cases remains. In Maryland as in compromise other common law states a relating to transactions with a decedent upon was forced legislative original reformers. In its exception form the applied party to a to a contract with a decedent unless such opposite was called party. It wasn’t until the century turn of the the Dead Man’s Statute was present broadened Maryland to its form. Laws of 1902 Ch. 495; 1904Ch. 661.

Although exception original to the reform effort has heavy legal under attack eminent authorities for the been bred, injustice uncertainty Appeals it has the Court quite properly if rule has determined that is to be Courts, altered, Assembly will have the General and not the Estevez, O’Connor v. do so. 182 Md. 541. Court all, by strictly construing departs premise, if at from that as much evidence as the the statute an effort to disclose Burke, 390, 404; Cf., Stacy will v. 259 Md. rule allow. L, 77; Shaneybrook Guernsey Loyola Fed. & 226 Md. v. S Sheeler, 264, 269; Blizzard, supra, 309; 207 Md. Sheeler v. Carman, 25, 35; Humphreys, Russell v. 114 Md. Smith v. 285, 289; Frazier, Md. 10. Horner v. review evidence to be Considering the narrow current hearty rule, our we note at the outset excluded under the encompass expand statute to disinclination lay her heart appellants’ assertion that on the basis of daughter. her ours, weight statutes, construing such as restrictive Maryland 7. Ch. Laws of entering authority jurisdictions holds that one in other person is not an the benefit of a third

into a contract for witness, party in interest.” incompetent “unless a real Annot., The same annotation defines 149 A.L.R. 1132. interest in party in “one who has an real interest as Evidence, property sought.” McCormick, 65 also refers C. pecuniary a “persons having to such a interest” as “of direct proprietary kind, in That seems to us a the outcome.” applicability. sound limitation Dead Man’s Statute To on uncertainty hold otherwise would increase ad absurdum already judge of an statute. A trial or chancellor uncertain by competency some would have to determine omniscient prospective really sense of what a witness felt his or her heart.

Although precisely point, Maryland there is no case precedent, noted, consistently as we have has favored admissibility testimony involving close cases the Dead Indeed, Appeals permitted Man’s Statute. has Court testimony of: party obviously 1. a husband of who would emotionally tangibly by benefit as well as his recovery, Marx, 373; wife’s Marx v. 127Md. party corporation

2. a stockholder a notwithstanding similarity tangible obvious differing degree only, interest Downes v. Co., Ry. 100;

Md. Md. &Del. 37 corporation party, 3. an officer of a which was a etc., supra; Guernsey Loyola Fed., v. witnesses, parties suit,

4. not to the who were party

stockholders or directors a corporation, Halibut, 517; Whitney v. Md. 235 legatees under will where the estate would recovery by executor, benefit from a Ex’r., 620; Spear, v. Md. 148 Schaefer daughter party 6. a named as defendant called plaintiff notwithstanding mother her “identity “opposite party” of interest” with the calling her, Ilier, 592; Cross v. 103Md.

7. a son suing where his mother’s estate was his prior

creditors to enforce a lien on stock his spite name. In of the obvious benefit to the son party who was named a defendant estate, permitted testify he was when called by opposite party. Duvall, Adm’r. v. Co., Hambleton & 98 Md. 12.

On the other hand the Court has held that a to the suit falls under notwithstanding the restriction his status as prochein next friend Leitch, ami. Alters v. Md. 390.8 dispositive, perhaps completely two cases

While above- analogous to the at bar as to are so case mentioned Iler, In persuasive. at 596 a woman sued Cross money against purchased claim land her enforce a estate, suing she her husband who had died. join daughters compelled whom to her two one of was daughter testified for the mother. administratrix. The other objected grounds This was on the similar to those asserted to testimony by appellants, the should have been here daughter’s lay with the mother barred because the interest winning opposed party to her role as the case as formal Appeals testimony The of held that the defendant. Court admitted, relying Duvall, Adm’r. properly was Co., al., supra, Hambleton & et 98 Md. 12. son,

There an administrator sued the decedent’s a interested, of corporation in he was and a creditor the which corporation of the recorded in who had levied on stock son son name. The claimed that the had the son’s administrator buy money to the his deceased mother stock borrowed from assign security. the as agreed son had stock and the corporate so The administrator records did not reflect. prior lien. The lien to the creditor’s son’s time claimed go estate seeing to his mother’s the stock interest every allegation obvious, he of and affirmed when admitted Colburn, prochein is ami 8. In 1885 Trahern v. held that a section; meaning however, the within the the at that time statute parties phrase the “unless a still dealt with the to a contract and contained party merely” which was added in but nominal left out in the 1902 and 1904 versions. which had been 1868 Ch. Appeals is so language of the Court the bill. The repeating: appropriate as to bear seen, defendant, as has been Baldwin, a

“George S. as a below, was called in the Court the case below, and plaintiff by appellant, the witness the subject of the testify is made competency to his he ground that upon exception by appellees case, an of this not, is under circumstances intent plaintiff within the ‘opposite party’ to the and as amended meaning Evidence Act of our chap. insisted that 495. It is enacted Act of position on the docket as a defendant his adverse at the competent him as a witness does not make him plaintiff because of accord between call of accomplished object plaintiff as to the to be and the competency exception of this the suit. The is, however, he witness, sustained. That cannot be (appellant) witness, plaintiff not hostile to the as a may supposed under the circumstances be appellant, case, in favor of the to have a bias suit, respects him, the result of who called why the Court properly suggested as reason be and in weighing his evidence should be cautious it; competency to given his but the effect to legal relation to his testify to be determined competent as a he was the statute Under the cause. his ‘opposite party,’ and upon call of the witness provision brings him within this position in the case suit object of the respects the As statute. allegations the bill appearing from prayer relief for appellant and its complaint of the identity of Baldwin, no such defendant, had the have been he could appellant that with the interest proceeding.” plaintiff in the properly joined as a Duvall, Md. at 15-16.9 98 language by quoting the distinguish attempt Appellants this case 9. to they which sense party

indicating assert to be different from in adverse the he was a necessaiy Trupp. position Mrs. the of such him, against to establish sought the bill as “Relief was Maryland with the seem that accord Thus it would persons previously rule mentioned. The excluded general any sort, interest testifying are not those with an of from parties in interest and their traditional real but rather promisee party Trupp, a third representatives. Mrs. as pecuniary proprietary beneficiary had no contract donee predisposition she Any natural interest whatsoever. disqualify daughter’s welfare did not toward her have had testimony statute. her under the argues that, in issue, appellee Statute

On the Dead Man’s case, vigorous cross-examination any and extreme a Trupp’s objection to Mrs. as a waiver of appellants acted 390, citing Leahy v. Burke, Stacy v. direct. Davis, All Cooper v. 226 Md. 371. McManus, Md. 450 and party, who is adverse held that an those cases decedent, has been with a as to a transaction cross-examined and, therefore, party” his opposite testify to “called exception express to under the are admissible answers Trupp says appellee, even if Mrs. prohibition of 3. Thus adverse or sense that she was opposite party were an appellants, their interests antagonistic calling by opposite her effected a cross-examination party. accuracy her question as to be little

While there can previous proposition, by our general legal premise as a applicability here. to decide its holding is no need there Evidence, Exception Fraud Parol testimony departs Trupp’s Mrs. Appellants’ next attack gift deeds of They point to the Man’s Statute. from the Dead controversy stock Trupp transferred by which parol evidence applicability Mr. of the argue the Trupp and obligation of destruction prevents rule “which preceding or contem- by evidence a contract written very the relief against foundation for right him was the of relief p. parties at against thereto.” sought by the other suit as authority provides however, for the ways, since it cuts both That sword — defendant, make Mrs. in his decision chancellor at worst. we find to be harmless decision

603 McCormick, Evidence, C. agreements.” poraneous oral early appellants note two specifically, More & Slubey, 5 H. J. 382 and v. Maryland cases, Jones Rohrer, applied only rule 327 not to Groff preclude oral or at variance trusts inconsistent deed, parties expressed intention of a but to trusts for third applied The rule in 1822 suit as well. Jones case to a seeking brought by grantor aside his deed to set own gives guidance. mistake. It us little of his own because Groff, however, though apposite factually, more is recognition primarily (1872) significant early as an accident, exception parol to evidence rule in cases of mistake, surprise, support rather than for fraud or apply strictly: appellants’ attempt the rule parol accident, fraud, proof “In a case of mistake or purpose establishing be resorted to for the resulting property real, conveyed when trust where prevails .... same rule relief is that, through mistake, sought ground on the surprise, accident, is or instrument framed contrary parties. ‘How’, intention of the to the Hardwick, Paine, in Baker vs. observed Lord agreement Vesey 157, a mistake in an ‘can ” proved by parol but evidence?’ exception succinctly reasoning most iterated for the is ruling upon by below when the case relied chancellor Trupp’s testimony: on Mrs. firmly or more is more established

“No rule parol excludes recognized than that which generally contradict, vary, add to or take evidence offered opinion that in our instrument. But from a written a written rule, where the execution cases fraudulent by false or induced instrument has been prevent promises, does or statements any showing such facts evidence introduction instrument, evidence such because action on the instrument vary or to contradict not offered to dealing with evidence it, destroy and cases but which, conceding validity while such an instrument, nevertheless is offered to contradict it, vary parallel question.” to the Councill v. are Office, 137, Accord, 146 Md. 149. Sun Ins. Schmidt Millhauser, 585, v. 212 Md. 594. explaining promises aspect the fraudulent of the Poore,

exception, Judge Prescott later wrote in 219 v. Tufts 1,11-12: Md.

“Maryland adopted overwhelming has majority holding rule of American courts in predicated promises that fraud be made perform present with a intention not them. Office, supra; Brager Councill v. Sun Ins. v. Friedenwald, supra; McCullough, supra; Gale v. Upper Realty Company, Ortel v. Ashburton 678, 683,190 A. Am. Md. 239. See also 23 Jur. Fraud 106; Deceit, para. Restatement, Contracts, Annos., 63, 637, para. 473; 51 A.L.R. 68 A.L.R. 1297, 125 gist A.L.R. A.L.R. of fraud in perform such is not the failure to cases agreement, the fraudulent intent of the but representation existing promisor, of an the false perform where such intent is in fact intention to non-existent, deception promisee and the promise.” such false validity set of the law as

Appellants contest the do not Their forth; they deny applicability its to this case. however, Complaint Bill of is in the is that nowhere concern first gift were precise allegation the deeds of there of a confidential “procured by violation fraud may dispose contention relationship.”10 of We peremptorily. admissibility testimony of of abuse of of discussion 10. Nowhere is there exception our We restrict rule of exclusion. an to the as confidential relation response i.e., allegations fraud evidentiary question presented, of to this opinion of on abuse notwithstanding turned only, chancellor’s final

confidential relation. Bag Co., 183 Sprosty In Spangler explained: Appeals of Court charges fraud, of acts were “General or that avail, fraudulently committed are no unaccompanied specific facts statements hand, amounting fraud; if and on the other there fraud, it stated disclose sufficient facts charge express unnecessary to terms that complained were acts [Substantial fraudulent.” authority omitted, emphasis added.] the Bill of the facts in only recitation Not the detailed was allegations of fraud but to amount to Complaint sufficient throughout appellants clearly that the the record discloses theory at fraud the root equitable were an aware that informing being purpose so of appellee’s case.11That the the surprise permit of and appellants so as to avoid the element properly been fulfilled. prepare their defense has them to attorneys the the and that The bill itself details facts charged attested the the Bill fraud is concluded that throughout acknowledging the proliferate so statements language adopt the of as if our own record. We could describing Bill of Spangler, Md. the facts the at 174 183 Complaint amounted to fraud: which with more they be stated could do not see how “We ample notice give defendant They the particularity. full will have a she plaintiffs’ claims and of the has explain them. She deny to or opportunity intermittently knowledge Examples expressed appeared from attorneys appellants. for charged “(The Court) you plaintiff undue Do believe the has anything influence? I about that. haven’t heard (Mr. Mitchell) No, they charged fraud. but have you (The Court) In essence are correct.” exactly Sykes says “(Mr. Hochberg) is Yes that is so. What Mr. looking feelings, forget we We and don’t correct. are are for the true conceiving [charged withl monstrous fraud at or about a Now, your early feels that time. This is late ’64 if Honor '65. Trupp just shortly his before this theft of state of mind of Mr. wife’s securities — — your accepts it is it is if Honor and that what securities, defrauding this is a her of this woman....” theft of a 606

knowledge charges of the compelled which she is requirement good meet. This is the pleading.” appellants again then Poore, cite v. 219 Md. at Tufts premise this time for the that “a fraudulent intent not to perform promise implied a cannot be or inferred from the perform mere failure promise.” However, appellants should have read on. The speaking Court was “with permissible reference to .. . the inference of ... intention at making promise.” the time prefaced a expostulation It its recognition with a difficulty of the proving person’s a any intention or state particular of mind at Citing time. Lipp Lipp, 207, 216, v. Md. repeated 158 premise it quoted by appellants the inference of a fraudulent preexisting perform promise intent not cannot be perform inferred from promise the failure to alone: “But, it be considered with the subsequent promisor conduct other surrounding circumstances the transaction sustaining Lipp such an inference. Lipp, supra, page 216, page 219; at Councill v. Sun Ins. Office, 137, 150, 229; Annos., 126 A. 892; Bowen, A.L.R. 125 A.L.R. Cutler v. 51 P. (Cal. App., 1935). 2d 164 Facts, Cf. Moore on sec. 100. And it has been stated that under certain conditions, perform strong failure or refusal to perform evidence of an promise intent not to at made, only time it was where period a short elapses of time making promise between the perform it, the failure or refusal to and there is change no in the circumstances. 24 Am. Jur. Fraud Deceit, 287; Anno., sec. 51 A.L.R. 165. It has also been stated the largely fact that a prepared by him, benefited a will in or the preparation part, of he which takes an active is a suspicious circumstance, of more or less significance according to the facts of each particular case, jury to be considered the in determining question the of fraud. v. Griffith Diffenderffer, 50 Md. 466. relating question of a valuing to the facts made, promise perform a present not to intention importance and frequently stressed the courts have parties, the significance of the situation of activity of existing them, the between relations instrument, and the procuring in promisor perform. Lipp Lipp, promisor to failure of principles to page Applying these supra, at above, as related case facts the instant of the time permitted an that at inference evidence mother, she did promise to her Tufts made Office, v. Sun perform it. Councill Ins. not intend to 150; Lipp, supra, 158 Md. Lipp v. supra, 146 Md. Restatement, Bowen, supra; 219; Cutler v. Contracts, Legal para. (b); comment Effect Perform, to with Intent Not Promises Made L. 1461.” Columbia Rev. Complaint Bill of facts recited in the

All of the sufficiently apprised failures to act actions and deceased’s reasoning exception behind this appellants. The sound v. Sun parol Councill exclusion of evidence was stated Office, supra, Ins. 146Md. at 151: going

“And holding without to the extent of that as general contemporary parol agreement a rule a give do something in addition to the may consideration named a written contract be shown, opinion agreement our where an such design made the execution of to induce the agreement by parol execution the written promises performed, not intended to be it fraud, testimony shown oral for as evidence hold evidence that under such circumstances such rule was not admissible would be to subvert a prevent law fraud into device to intended to promote it.”

Attorney-Client Privileged Communications devastating testimony of the most Unable to bar the witness, appellants only turn to the other of witness consequence against Sidney attorney them. Weiman was the Trupp to whom Bernard took his wife Florence order Weiman, consummate the transfer of stock. who was also public accountant, certified originally represented had matters, Trupp Bernard on other including taxes, preparation incorporation of articles of and a will. He thought advised Mr. and Mrs. of he the method best carrying matter, for their out intentions in this alluded particularly gift consequences, ultimately to the tax prepared gift testimony, tax their returns. His which generally Trupp, in accord with that of Mrs. awas significant compelling if factor the chancellor’s recognize testimony attorney decision. We of an concerning great weight his carries client because its imprimatur impartiality. personal representatives The Trupp’s Mr. benefitting and of the estate trust his brothers confidentiality privilege lawyer asserted the between client Maryland on behalf of decedent. follows the common against in granting privilege law clients disclosure of Dissected, attorneys. communications with their rule reads: legal any sought

“Where kind advice professional legal capacity from a adviser his such purpose relevant communications to that

made in conference

by the client permanently protected

are at his instance legal from himself or adviser disclosure except protection be waived.” Wigmore, (McNaughton ed.) 8 J. Evidence at 546. upon privilege policy are rationales which the rests well known: regard

“It is founded on a to the administration of go justice, cannot the aid of men which without privilege If did not jurisprudence skilled in .... all, everyone exist at would be thrown on his own legal resources; deprived professional of all assistance, any a man would not venture to consult person, only skillful or would dare to tell his Greenough Gaskill, counselor half his case.” v.

My. K. 98. Indeed, might add, we guarantee the constitutional empty meaningless. assistance of counsel would be Maryland interpret courts have had occasion to this privilege infrequently upon and when called to do so have frugally often holdings, limited discussion. From these few however, privilege we have discerned that the is one of the attorney; client and destroyed by not of the that it is not client, Tillinghast Lamp, death of the 34, 42; v. 168 Md. Hodges Mullikin, 503; v. 1 Bland the communication must be presence “confidential” and thus not made in the person, Koogle Cline, a third 587; v. that it is not absolute and expressly impliedly; be waived and that there confidentiality. must be an intention of Shawmut Mining Padgett, Co. v. Furthermore, 132 Md. 404. attorney communications from a prepared client to the who will, respecting his preparation its not, and execution are death, after the protection client’s within the of the rule in parties claiming suit between Benzinger under him. v. Hemler, cases, limiting 134 Md. 581.12These reasoning their narrowly they do, easily applied as are not to other They provide factual enough circumstances. us with guidance, however, upon to rule the chancellor’s limited attorney’s testimony. admissions testimony subject exception The chancellor took the which was in later formalized a written motion to strike. analyzing pages testimony Rather than two thousand objection during order to rule on each made the four week Benzinger distinguished Bank, but did not reverse Chew Farmers’ anything by 2 Md. Ch. 231 which invoked the rule as to communicated attorney could, witness, by operate decedent to her “which if revealed prejudice Benzinger pointed ....” rule out that Chew the [decedent’s] against applied claiming testatrix but through one who was not position resisting rather was in the the claim made her.

trial, preliminarily ruled the court in the form of a letter questions regarding all during of evidence received him which only attorney-client the trial included not privilege evidentiary questions but the other treated opinion. ruling attorney’s testimony chancellor’s given by attorney was that such evidence relative to Trupp, communications with Florence alone or whether Trupp’s presence Any testimony Bernard was admissible. relating to Trupp, communications to or from Bernard however, presence whether or not in the of Florence privilege. he held as barred inadmissible His reasoning was: argued has that since the consultations

“It been say, Sidney joint, were is to both Weiman Trupp present, the Florence were the decedent and Trupp is far as Bernard privilege is then lost as confidentiality the element of concerned because Evidence, 2311, page Wigmore, been has lost. See § 1961). true, be it (McNaughton Ed. This would 599 her seems, Trupp merely with if was there Florence joint capacity client. husband and not (1909). If, p. See Koogle Cline, 110 Md. at well, i.e., however, Trupp was a as client Florence stock seeking on the issue of the advice Weiman’s record, transfers, appears she was from the as it no loss of that there would be then it would seem Trupp was privilege far as Bernard presence. merely her because of concerned page 639, 2328 as to distinguished at Wigmore § concluding cannot clients, that one client joint other, and it should privilege waive crystal clear Snyder made it noted that Mr. waiving the he throughout was the record concerned.” Bernard was privilege as far as ruling with the chancellor’s accorded That limited only that his find pattern prudence. we persistent Since as to restrictive, we his actions ruling unduly affirm was though admitted, for which was portion of the evidence reasons. different conceptually two apparently confused

The chancellor Evidence, Wigmore, of 8 J. sections, and 2328 distinct Wigmore wrote: 2312,Dean ed.). In (McNaughton absolute relative, not an may be a “There confidence. same when the occurs instance

The chief having a common parties two attorney acts for him. interest, communicates and each clearly privileged are Here the communications person. of a third instance disclosure at the from controversy in a privileged they are not Yet parties, inasmuch as original the two between employment forbade interest common from the other.” either concealment Appeals relied upon which the Court section It was that 587, 607, by the Cline, cited chancellor. Koogle v. 110 Md. by a deed conveyed five children land to There a father reserving $8,000.00 a life stating to be the consideration administrators filed his death his himself. After estate to attorney who unpaid consideration. suit for testify as to permitted to prepared the deed was son, grantee whose the decedent with and conversations present. The case, in the and defendant in the deed admissibility question of Appeals dealt with the Court estate in one decedent’s privilege claimed over sentence: as to agree below with the Court

“We testimony Mr. of admissibility of the of so much to statements lawyer] as related Coblentz [the presence Otho J. of the the deceased made deed and grantees in the Shank, one Evidence, on 1 in this case. defendants Greenleaf Evidence, secs. Wigmore ed.); 4 (16th sec. 245 54; Y. Haughian, 70 N. 2311-2312; Hebbard Rep. 815.” Kistner, At. Pa. Hummel v. dispositive of Wigmore, 2312 Koogle, supra and find § We present Koogle and the between issue. The similarities presence there, case are obvious. of the son a grantee-defendant, equated presence can the Mrs. be of Trupp here, grantor-promisee-defendant. a In both instances, persons consulting attorney with had the two the independent, potentially interests at the adverse affected of time conversations. The statements of each were not the they presence were revealed in of confidential because the personfs] contracting. was When the with whom he or she original Trupp, an to the the adverse interest Mrs. suit, gift, subsequently deed of resulted a law she had the option waiving privilege the confidential which otherwise precluded testimony. Mr. would Weiman’s have accord, explains is in some Professor McCormick McCormick,Evidence, 95 the policy reasons for rule. C. at 192-193: original happen

“. will that the two .. it often among become will fall out themselves and clients controversy engaged which joint at their consultation with communications vitally In lawyer material. such controversy privilege is it clear place policy inapplicable. first holding promise out encouraging disclosure inapposite, since as between protection seems he would neither would know whether themselves handicapped, any dispute if in helped or be more them, both could invoke the shield of between they secrecy. secondly, it is said that had And obviously keeping these secrets from no intention of other, it was each and hence as between themselves . . .” not to be confidential. intended Wolff, who this law recognize that Susan initiated We Trupp’s during suit, present Mr. and Mrs. attorney. conceivable with their Unlike other conversations beneficiary however, under parties, Wolff as third contract, Trupp’s sought Mr. force her mother’s privilege provides obligations. The rule which attorney persons an of two to conversations attaches when subsequently a suit arises persons, between those two apply equal should persons claiming force to under them.

As is evident the opinion, quoted supra, chancellor’s he disregard Wigmore, chose to 2312 favor of 2328: § “Where the consultation was had several clients joint joint jointly, the waiver should for statements, and neither could waive for statements; yet disclosure of the other’s neither should be able to obstruct the other disclosure of the latter’s own statements.” applicability explains waiver rule’s when That section brought by present during is one who was neither suit attorney under with the nor claims one of conversations original parties to the contract.13 finding clearly We 13. are bound the chancellor’s of fact unless Seemingly Trupps joint erroneous. Md. Rule 1086. he found the to have been point significant because, course, Trupp clients. The client at the time of the if Mr. was not a conversation, privilege his estate had no to assert. clearly erroneous, reviewing While that conclusion was not one testimony easily Trupp could as have found that Mr. was not a “client” of Weiman’s this transaction at all. Nothing given sought by in the record indicated that advice was to or Trupp litigation

Bernard relative to the transaction from which this only gratuitously carry ensued. The relevant him advice to offered and obviously disregarded, i.e., the Weiman’s to make a new will to out the condition of gift. opinion, chancellor, apparently which that he guided represented Trupp transaction, both Mr. and Mrs. in this reflected his recognition that such service would redound to the ultimate benefit both professional relationship. but that was not conclusive of the It matters not underlying purpose procedural that the to be effected from the advice sought, provided present a benefit to the deceased. Nor does it matter for purposes Trupp attorney that Mrs. followed the advice of an to whom she represented had been directed and who had theretofore her husband. The gift Trupp advice to transfer deed of was to save Mrs. taxes and the bequeathed by dividing advice that it be will rather than the life interest carry placed upon from the remainder was intended to out the condition she gift. Upon equitable principles unjust alone it would be indeed if the permitted privilege survivors of the decedent were now use this imposed upon Trupp’s defeat the conditions her husband. The record Mrs. act of kindness toward Co., Hunter v. Van 1 Md. Bomhorst and Cf. strongly suggests represented that Weiman in this “confidentiality” beneficiary gift transaction. We wonder how much of a requires only accept reject when he need decide whether conditions conveyance. Litem Appellants’ Ante Motam Conduct relating evidence was introduced to Considerable following Trupp period of the in the conduct brothers showed that one brother Bernard’s death. evidence day requesting announced he had found a letter a 30 mourning period. apparently prepared the The brother had buy hoping it time to have the request himself and used trust before transfer of the stock effected under the brothers’ Mrs. conveyed aware that her husband had not will became daughter. question to her The efforts to the stock during period transfer the stock that were also admitted into evidence. orphans’ court that represented to the

The same brother envelope original. misled Mrs. was the He also facsimile believing he had daughter into Trupp and her and husband time while deposit box for the first entered Bernard’s safe no there was them, attempting to demonstrate with previously later will than that disclosed the brother. concerned complain the evidence admitted Appellants agreement of the occurred after execution incidents which they argue, Thus Bernard’s death. upon sued and even after adjudicated. issue probative value on the the evidence had no 152, they point McCormick, Evidence, Citing C. if its discretionary right to exclude evidence chancellor’s probative outweighed by consumption of value is undue not had surprise party who has time, prejudice or to a evidentiary anticipate offer. such opportunity to reasonable during decided, pretrial and matter was twice Since this find surprise. Nor do we trial, no element there could be was. The second time, lengthy as it by consumption of abuse any purpose of evidence. precisely the element, prejudice, is however, balance between concerned, with the areWe confusing the prejudice or of and “of undue probative value jury misleading the [factfinder] or of issues discretion, of that supra. to find an abuse McCormick, For us weight the side minimal with but see the auncel we must equal more contrary, we find a far value. To of probative balance. “unnecessary” matter motion to strike preliminary

On a first In question decided. Complaint, from the Bill of said: denying motion the chancellor admission might be indicative of an “The actions rights plaintiff in defendants of the rights attempting ascertain the estate. may always parties look to acts the courts particular reference to their parties being rights. application interpretative of the defendants, too, appear . . Then, it that. would value, may purchasers or not fide for who are bona If, good acting good have faith. been they faith, they had estate free and believed that an legal their equitable all encumbrances clear of plaintiff probably liability, any, if to the would be by by the standard limited and would be measured he property of others as one should treat the which If, hand, allegations his own. on the other would by proof, faith on the were to be fulfilled bad reasonably part may inferred the defendant be may differently any then be and losses of the estate measured.” might that, very beyond

Even we note that the actions knowledge by an prior the brother of well have indicated a alleged by perpetrate what was intent the decedent to great inquiry in cases of fraud. A latitude is allowed fraud, alleged, any fact, where is however fraud relevant, long slight, all be admitted so as the if at pertinency some the issue. Jameson evidence offered has to Hall, v. Md. 221, 233. rendering chancellor, opinion his final who particularly evidence, not in that” had

“not concerned about any case abused his discretion. Policy Against Public

Contracts appellants argue Smith, Relying on v. 189 Smith appeared outright gift for giving of to an that the what be saving attempting tax cannot now be purpose of a although Trupp. note, however, by We gainsaid used, expert, procedure by appellants’ questioned apparently judgment was following of counsel whose advice adjudged even by here been nor fide, the record has bona testimony by experts that illegal. In fact there Indicated indeed, paid were and, more taxes erred counsel had an irrevocable would have been procedure used than used. device been trust field,14 in his attorney renowned expert, an

Appellants’ question of whether difficulty of the acknowledged the He taken. have been properly deduction should marital few being pressed, acknowledged, after further making such to draw from expertise had the practitioners in violation attempt defraud no We see judgments. even of counsel fide advice acting upon bona public policy “ must given. ... it fraudulently though not erroneously, if holding a contract justify a court very plain case be a Woods, Weeks and Estate policy.” Trust against public Co., 52 Md.

Sufficiency of the Evidence Appellants argue length posture at over the of the law as relationship shifting proving a to the burden of confidential Appellee replies which was found to exist the chancellor. presumption in a by citing the of a husband’s dominance 257,15 relationship, Papachrist, 199 Md. marital Manos v. scrutiny gift by wife will to a husband close equity, Duffy, 232 Md. 481. from a court of Fant receive interesting Notwithstanding intriguing questions and extending an arguments purpose in further we see no rendering discussing When his overlong opinion by them. opinion the chancellor said:

“ ., was a confidential . . I feel that there But, important, I feel relationship that here. more therefore, so, I met the burden and the Plaintiff has Stiller, Esquire. 14. D. Shale upon shaky which the foundation of the 15. We are not unaware Maryland Amendment, Equal Rights light presumption in rests Rights, Article Declaration of is on rule or not the burden do not need to whether any event, feel because, I in this the Defendants amply met the burden Plaintiff has case the Trupp very was a proof. I feel Bernard that skilled, brilliant, well-regarded businessman dominant community, he was the and I believe that Trupp when I believe Mrs. actor this transaction. put papers she a sheaf testified that had she and I do find her to be as skilled before her. sophisticated would as for the Defendants counsel is a marital me I am mindful there have believe. here, mindful relationship and I am that as a are somewhat divided authorities relationship cases, in such but I don’t confidential point I need reach that because I think believe proof has met the burden of the Plaintiff Trupp Mr. agreement by and Mrs. and between gift a made .... Trupp there would be great Trupp certainly had a deal of Mr. experience. heard independent business The Court corporations testimony that he had as to certain apparently with some had met formed and that I find degree success. will as matter business joint Trupp Mr. did handle the business fact that I will find as of himself and his wife. affairs regard him her matter of fact that she did her far as as her financial adviser as husband and exception, concerned, with the property was very course, over which she had of certain items little, any, control.... if complete and feel that had trust

I in his business confidence her husband and her, “I ability. testified, I believe trusted She understand, having readily thoroughly.” I can him presented many cases, when the fact that heard sign readily them papers series of would with a she I asking many questions. very and did so without my own judge women the acumen cannot other should display, I don’t counsel wife think wives

judge other women the acumen their Trupp completely display. I Mrs. to be found way husband, dependent upon in her as a financial far advice is concerned. as case,

Gentlemen, in this I as the trier of facts testimony carefully have considered all of I found case on all fours as of the law. have no all particular problem is To use far concerned. as facts, words, I am trier of the Mr. Goldstein’s preponderance only of the a convinced “beyond that all reasonable doubt” evidence but truthfully her that she and testified did, fact, agree the securities would that husband they upon to him and that his death be transferred would revert to Susan C. Wolff.” proof strict unmindful burden We are not trust, it must be a necessary to establish constructive clear, Kelley, 178 Md. convincing, Kelley v. clear and White, 228; nor satisfactory convincing, v. 211 Md. Dove review, Md. Rule limits of our we unmindful of the are of fact and not of law as light being it “determination a Clark, McCoyv. relation exists.” to whether confidential Hull, 155Md. App. 198, quoting Zimmerman 204-205 230, 239. evidence to record reflects sufficient review of the

Our by the finding of a relation confidential out bear any presumptions. There was resort to without chancellor finding of dominance here sustain a evidence adequate reasonably found collateral the chancellor fact. Furthermore theory appellee’s with consistent facts he deemed case:

“ believe, sense, I good would However, .. common . facts, which in this case is the trier dictate to very who Chancellor, had a woman kindly, her relationship, classify it casual gift certainly not make a would brothers-in-law husband, who was fact absolutely her knowledge that the full party, with the dominant very possibly from could benefit brothers-in-law gift. theory by the I think the advanced such a good common sense. other Plaintiff makes words, Plaintiff, Wolff, daughter Susan C. the the gift, enjoy of the donor of this would the shares of upon possibly and the income therefrom stock Trupp. L. entirely death of Bernard This seems credible. sustain the verdict and was sufficient to evidence

judgment of the chancellor. and Set-Offs

Credits arguendo, if we affirm the Appellants contend expenses below, they should be reimbursed decision appealing (personal representative of the estate and the case Trupp’s gift tax, trustee). They also feel that since Sidney Weiman, initially paid by her on the advice of was Trupp, Mr. Wolff should reimbursed to her Susan below, Md. compensate This issue was not raised the estate. support. any case shows little reason for Rule (although preserved More reasonable not as an issue below paid either) argument appellants have income is the that the Trupp in taxes the dividends since the death of Bernard on Although appellants required are to account for paid made for the taxes dividends no allowance was years during problem compounded the three them. The held sub curia following trial which which the case was 1, 1974. February 10, decided on March ended 1971 and was unexplained now be delay the fault While the was precautionary appellants take for the failure of shifted appellants could have protect measures. To themselves the bearing placed in an interest escrow account the dividends pending Complaint Bill filed on October the outcome. The injunction preventing sale of the securities 1968 and the appellants adequate notice that the funds were all served the jeopardy. pay the dividends and The decision to taxes on aegis, use them as own was a decision within their their rightful should not serve to detriment owner of the now securities.

Cross-Appeal cross-appellant, complains Appellee, that a limited sale permitted by pay taxes securities was the court estate protective only A refund claim was filed the executor due. judicial struggle. appeal After was noted here after cross-appellant was informed that: claim,

(a) government had denied the (b) deficiency asserted in the substantial subject here; matter

estate extraneous (c) cross-appellee had “invoked the executor

jurisdiction of the States Tax Court United government’s assessment of the over both deficiency protective refund claim of the estate.”

Cross-appellant now a substantial claims that because impaired, “the deficiency will be and that refund claim that the below modified to make clear court decree should be plaintiff against any jurisdiction of claim of the retains taxes to the extent reimbursement of estate defendants for pursuit refund to result collection.” of the fails that necessarily holding which would be will no such We make upon us, and the dependent facts not before equivocal, case. of a federal court outcome Dividends Interest on a Cross-appellant submits interest is as that “recoverable money actually right matter of where the claimed has been used,” W. L. citing Corp. Brands v. R. Distillers Affiliated Co., 509, 516; 213 Atl. Constr. Liquor Wine and Md. States Co., Contracting 77; Mullan Co. v. Drummond Md. Co. Corp. v. at Chase 248;St. Paul Corp., IBM 220 Md. Manufac- Co., 234-236. turer’s Ins. Life going appellant far so as We do not read those cases as contrary rule to that stated we find the contends. To the Co., at 85: Constr. Atl. States “Ordinarily is left to the the matter of interest jury sitting discretion the court without a jury.” Accord, Chase, supra, St. at Paul at 236. The pointed out, Court as did Distillers Brands Affiliated

Corp., supra, at that: general subject

“. . . rule is to certain exceptions that are as well established as the rule itself.” exception then discussed both cases dealt with money payable day

contracts where on a certain. There no allegation cross-appellees nor evidence were the delay litigation cause of running the inordinate in this nearly years six usque ab ovo ad malo.

Judgment affirmed. paid by appellants. Costs to be Menchine, dissenting: J.

Assuming, agreeing, without an issue of fraud had pleaded properly legally been and that sufficient evidence thereof parole had been shown to admit evidence to express contract, contradict the terms of a written I must my any dissent because conclusion that event Florence Hendler should have been barred a witness when plaintiff, offered Susan Wolff.

Although subject litigation the form of was bill for declaratory Wolff, relief initiated Susan C. the true object of this action is to declare that written contract executed her mother Hendler a Florence as deed of gift Trupp, in form deceased, absolute to Bernard L. now may, effect, in wholly be reformed and a declared to be different contract. The determination such an issue a prosecution equity court of cries for in out the action party name of the mother as real interest as the contracting party. Maryland Rule a. Hospital Graves,

The rule declared Eastern State 837, (Virginia, 1906) particular E.S. has here. In relevance Eastern it was said at 838:

“It is further well settled the courts will

determine who is the real interest reference, merely not to the name in which the brought, action is but to the facts of the case as they appear in the record.” 142, 113, C.J.S., Equity, it is In 30A at said: § ‘necessary parties’ persons “The term also includes who, necessary indispensable while not or on interest, yet account of their own are so connected subject controversy with the matter of the that it is necessary to have them before the court for the proper protection will of those whom the decree necessarily directly and affect. A defendant cannot primarily required litigate questions which directly persons involve issues with third before the court.” said in

It further at 115-16: ordinarily parties “All to a contract are indispensable equity parties a bill in for its or enforcement or for its rescission and cancellation enjoin performance breach, particularly or its its joint rights they where have or common agreement requires of an liabilities. The rescission claiming property through such presence of all agreement.” Brown, was said at 171: 11Md. it Crook v. necessary must parties] question are

“The [who object, well measure, upon the great depend, in a sought, the bill, relief subject as the the manner parties, and privity between It is may have arisen. interests their several which applicable to all general rule impossible to state used have chancellors eminent The most cases. as to defining doctrine language in different pleading, as elementary works parties; variety great cases, show a well as decided exceptions.”

Although directly point, the case of Ward v. Hollins, 14 Md. principle declares a that I conceiveto be analogous. Ward, complaint wherein sought the bill of to fraudulent, void a deed as it was said at 167: object “The proceedings of the being to assail the deed of the December, 1854, 28th of either for the purpose having vacated, it rectified or all the parties to the deed necessary proper are parties cause, without whom no valid decree can be passed.”

This generalization accord with the declared in Miller, Equity (1897), Procedure at 26: persons having

“All object an interest in the ought parties.” suit to be made judge

The trial refused to make the mother a party-plaintiff request at the of the defendants. His refusal permitted was error. That error the call of the mother as a permitted witness and repudiate her specific terms of agreement her own written completely and to detail a contract, different although lips of the other to the formal document were sealed death. Thus form was exalted over safeguards imposed substance and the intended by the Dead Man’s mockery. Statute reduced to a The mother should have been necessary declared party-plaintiff. eligible She should testify thus have been only in (Formerly accordance with Courts Article 9-116. § 35, 3.) Article sponte

The sua judge making action of the trial her a party-defendant coup grace furnished the de to the by facilitating restrictions of the statute her call — opposite party nominal reality ego. was in who her alter majority acknowledges the mother could have any doubt that in instituted the action. Is there such a case filing she would be silenced the statute? The of the action — daughter transparent in the name of the is a and now — lips. successful effort to unseal her Thus she achieves subtlety ability personal and indirection the to offer

testimony in conflict her formal actions without concern for rebuttal because other to her contract is deceased.

I would remand for a trial a form in which the mother a party-plaintiff. majority declares: hold “To ‘necessary’ was a party plaintiff would burden every donor gift a conditional with the costs and concerns litigation necessary to (Italics condition.” of supplied.) enforce conveniently This comment completely overlooks the fact purpose the true subject litigation was not to a condition but to establish that enforce there was a condition in the face of formal written acknowledgements by the mother to contrary.

I would reverse.

THE YOUNGSTOWN CARTAGE COMPANY

NORTH POINT PENINSULA COMMUNITY

CO-ORDINATING COUNCIL et al. Term, September

[No. 1974.] February Decided

Case Details

Case Name: Trupp v. Wolff

Court Name: Court of Special Appeals of Maryland

Date Published: Feb 19, 1975

Citation: 335 A.2d 171

Docket Number: 466, September Term, 1974

Court Abbreviation: Md. Ct. Spec. App.