directed for defendant, plaintiff appeals. | July 31, 1915, she gave her property wholly Reversed, and new trial awarded. Argued before BOYD, C. J., and BRISCOE, THOMAS, PATTISON, URNER, STOCKBRIDGE, and CONSTABLE, JJ. Guy W. Steele, of Westminster, for appellant. Francis Neal Parke, of Westminster (Ivan L. Hoff and James A. C. Bond, both of Westminster, on the brief), for appellee. URNER, J. The appellant, Cora V. Neudecker, brought this suit against the appellee, as the executrix of the will of Sarah A. Noll, deceased, to recover $407.10 for board and lodging furnished, and personal services rendered, to the decedent in her lifetime, during the period of three months in the year 1912, and about one year and ten months from September 7, 1913, to July 26, 1915, at the rate of $18 per month. It is stated in the declaration, and in the open account therewith filed, that the accommodations and attentions sued for were provided in pursuance of an agreement that the plaintiff should be compensated therefor by the defendant's testatrix in her will, but that she died without making such compensation by will or in any other manner. The case was withdrawn from the jury on the ground that there was no legally sufficient evidence to sustain the plaintiff's claim. The only exception in the record questions the propriety of that ruling. to Mrs. Leister, with whom she was then living. The proof is that during the periods of Mrs. Noll's sojourn in Mrs. Neudecker's home she was "treated as one of the family," but she "never helped around the house or did any kind of work," except that "occasionally she might have made up her bed." She was about 80 years of age when she went to the home of Mrs. Neudecker in 1912. While she remained there, during both of the periods mentioned, she received, in addition to her board and lodging, the benefit of the services of Mrs. Neudecker and other members of the family in doing her laundry work, sweeping her room, waiting on her, and giving her whatever attention she needed. [1] It does not seem to us that the services thus rendered should be regarded as presumptively gratuitous. The kinship of Mrs. Neudecker to her aunt was not sufficiently close to create of itself such a presumption. This was expressly decided in the case of Bouic v. Maught, 76 Md. 440, 25 Atl. 423, where a niece was suing for personal care and attention bestowed upon her invalid aunt, who was a boarder in the home of the plaintiff's mother, and where it was said, in the opinion by Chief Judge Alvey: "It is not to be inferred, simply from the relation that existed in this case between the par ties, that the services were intended to be gratuitous, and were rendered with no view of compensation." There is no dispute in the evidence that the board, lodging, and services for which It is true that even in the case of a more the plaintiff is suing were actually furnish-remote kinship, or as between persons not reed and rendered to the extent and value claimed, but recovery was successfully resisted on the theory that these provisions for the support and comfort of the decedent were in fact made gratuitously, and that her failure to make an expected disposition in the plaintiff's favor by will is not an adequate legal basis upon which the present suit may be maintained. The record shows that the decedent, Sarah A. Noll, was a widow without children, and had four nieces, one of whom was Mrs. Neudecker, the plaintiff, and there is evidence to the effect that prior to the first of the periods to which the account in suit refers she told the plaintiff that she would divide her estate among the nieces if they would keep her during her life. There were subsequent statements by Mrs. Noll to the plaintiff that she could not pay at the time for what was being done for her, but that she would give the plaintiff something by her will. The other nieces were Mrs. Leister, Mrs. Basler, and Mrs. Close. Each of the four nieces was substantially remembered by a will executed by Mrs. Noll in 1911. From that time until her death in November, 1915, she lived alternately with Mrs. Basler, Mrs. Neudecker, and Mrs. Leister. In 1913 she made a will giving her estate to lated in blood or by marriage, the inference that particular services were intended to be gratuitous may arise when the domestic associations of the parties involve the usual incidents of family relationship. Pearre v. Smith, 110 Md. 531, 73 Atl. 141; Harper v. Davis, 115 Md. 349, 80 Atl. 1012, 35 L. R. A. (N. S.) 1026, Ann. Cas. 1913A, 861; Elosser v. Fletcher, 126 Md. 244, 94 Atl. 776. But, except where the natural or actual relations of persons as members of the same family are such as to raise the presumption that their services were designed or understood to be gratuitous, "the law implies a promise to pay for services rendered and accepted, and the burden is on the party resisting the payment to show that no charge was to be made, if the rendition and acceptance of the services are proven." Marx v. Marx, 127 Md. 373, 96 Atl. 544; Harper v. Davis, supra; Wallace v. Schaub, 81 Md. 598, 32 Atl. 324; Gill v. Staylor, 93 Md. 472, 49 Atl. 650; Bixler v. Sellman, 77 Md. 496, 27 Atl. 137. [2] In this case it appears that an aged aunt, after proposing that she would divide her estate among her four nieces if they would keep her during the remainder of her life, was received and cared for alternately by the plaintiff and two of the other nieces until the time of her death. The circum ly proposed and mutually understood that she should separately receive. Such an understanding is one of the distinctive features of the case at bar. In our judgment the wife should be permitted to maintain the suit, under the circumstances proven, and in view of the provision of article 45, § 5, of the Code, that: "Married women shall have power to engage in any business, and to contract, whether encontracts, and also to sue for the recovery, segaged in business or not, and to sue upon their curity or protection of their property, and for torts committed against them, as fully as if they were unmarried." home, and the conditions under which she promised consideration which it was expresslived during the periods which she selected for her sojourn there, were not such, in our opinion, as to justify a conclusion, as a matter of law, that the care and attention thus received by the aunt were to be provided without compensation. There was a distinct promise in advance by the aunt to the definite effect that she would bequeath a due proportion of her estate to the plaintiff in consideration of the services and accommodations which the latter in fact subsequently rendered and furnished as required. The position accorded the aunt in the plaintiff's home was thoroughly consistent with the theory that both expected compensation to be made in the manner and to the extent which the aunt had proposed. The mere fact that the aunt failed to make the promised division of her estate among the nieces who kept her in accordance with her request, but left all her property to the niece with whom she was living at the time of her death, does not affect the plaintiff's right to recover the fair value of the services performed and accepted under the circumstances described. [3] In Hamilton v. Thirston, 93 Md. 213, 48 Atl. 709, an uncle had agreed by parol to give his nephew by will a portion of his estate equal to that of any of his children, if the nephew would render certain services as requested during the remainder of the uncle's life. The nephew performed the desired services, but the uncle died without making the promised provision for the nephew by will or otherwise. In an action at law brought by the nephew to recover a portion of the uncle's estate according to the terms of the agreement referred to, it was held that while no recovery could be allowed on parole contract, because it was within the operation of the statute of frauds, yet the plaintiff was entitled to sue for the value of his services rendered in pursuance of the uncle's proposal. This just principle is appropriate to the facts of the present case. [4] It has been argued that, if a right of recovery be assumed, it can only be asserted by the plaintiff's husband. This contention is based upon the theory that the husband is entitled to the benefit of his wife's services, and that she cannot recover for them without proving that they were rendered by her as an independent person on her own account in accordance with an understanding between herself and her husband to that effect. In support of this view, the appellee cites the cases of Neale v. Hermanus, 65 Md. 474, 5 Atl. 424; Poffenberger v. Poffenberger, 72 Md. 321, 19 Atl. 1043; Baker v. Hedrich, 85 Md. 661, 37 Atl. 363; and Herman v. Oehrl, 116 Md. 512, 82 Atl. 161. Those cases were quite different in their facts from the case now being considered. In none of the cases just cited were the services of the wife rendered with her husband's consent for a Judgment reversed, and new trial awarded. (132 Md. 483) THOMPSON v. THOMAS & THOMPSON (No. 34.) (Court of Appeals of Maryland. April 3, 1918.) 1. TENANCY IN COMMON 49-RIGHTS OF COTEN ANT. the interest of his cotenant by a lease of the A tenant in common has no right to bind premises. 2. TENANCY IN COMMON 49 - RIGHTS OF COTENANT-LEASES-RATIFICATION. der a lease executed by the other cotenant with- changing investments or making division, "to of whom was an executrix with limited powers, 5. PLEADING 261-ANSWER-AMENDMENT. Where landlord's answer admitted the validity of a lease, by admitting receipt of the rent money during the initial 5-year period, the lease having provided for a renewal for 10 years, the landlord was properly refused permission to amend by reciting fraud, making the lease void ab initio. Appeal from Circuit Court No. 2 of Baltimore City; Henry Duffy, Judge. Bill by the Thomas & Thompson Company of Baltimore City and another against Kate Thompson. Decree for complainants, and defendant appeals. Affirmed. Argued before BOYD, C. J., and BRISCOE, THOMAS, URNER, and STOCKBRIDGE, JJ. J. Cookman Boyd, of Baltimore, for appellant. Frank Gosnell and William Pepper Constable, both of Baltimore (Marbury, Gosnell & Williams, of Baltimore, on the brief), for appellees. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes STOCKBRIDGE, J. The questions of law | situation might have been made a ground of involved in this appeal are not difficult, and defense by the appellant, but no stress was have been settled as far as this state is con- laid upon it, either in the argument before cerned by the cases of Falck v. Barlow, 110 the court or in the brief filed by her counsel. Md. 159, 72 Atl. 678, 17 Ann. Cas. 538, King If there had been, it would have been a v. Kaiser, 126 Md. 213, 94 Atl. 780, and Read sufficient answer to say that the appellant, v. Nattans, 129 Md. 67, 98 Atl. 158, and 130 by receiving the rental of $4,000 per annum Md. 470, 100 Atl. 736. The bill of complaint down to the time of the bringing of this suit, is one for specific performance. It will suf- had ratified the agreement, for a ratification fice to refer very briefly to certain promi- may be established by acts as well as by nent facts appearing from the exhibits and parol or by written agreement. See 7 R. evidence, to make entirely plain the proper C. L. 877, Pellow v. Arctic Iron Co., 164 Mich. application of the legal principles as set 87, 128 N. W. 918, 47 L. R. A. (N. S.) 573, out in the cases already mentioned. and elaborate note appended thereto, Ann. Cas. 1912B, 827, and McDonald v. Finseth, 32 N. D. 400, 155 N. W. 863, L. R. A. 1916D, 149, in which a very able opinion was filed by Bruce, J., reviewing nearly all of the authorities. Plaintiff's Exhibit No. 1 purports to be an agreement to lease certain premises, known as No. 103 East Baltimore street, by John B. Thomas and Kate Thompson, trustee, to the Thomas & Thompson Company. It is dated May 10, 1910, and appears to have been intended as a lease of the cellar and first floor of 103 East Baltimore street, for a term of 5 years, at a rental of $3,600 per annum, for the half interest of the appellant herein, and further to be a lease for 10 years, commencing at the expiration of the 5 years, at an annual rental of $4,000, for the same half interest. This agreement was not acknowledged by either John B. Thomas or the Thomas & Thompson Company until the 21st day of March, 1917, and was never acknowledged at any time by Mrs. Kate Thompson, as trustee. The appellant claims that the paper referred to is not a valid lease, because not in accordance with section 1 of article 21 of the Code. There is no allegation that the rent stipulated is inadequate, or that any of the conditions embodied are unjust or unfair to the appellant. It is unnecessary to consider whether the paper was a valid lease for the original 5year term, from June 1, 1910, to June 1, 1915, for the reason that that term has fully expired, the rent been paid and accepted, and that question would at this time be purely academic. All that this case can properly deal with, therefore, is as to the effect of Plaintiff's Exhibit No. 1 as creating a lease, or an agreement to lease, for the ten-year period beginning June 1, 1915. That it does not comply with the provisions of the Code, supra, necessary to constitute it a valid lease, is perfectly plain. At the same time, if the paper is adequate in other respects, it may constitute a perfectly good agreement to enter into a lease in accordance with the terms set forth, an agreement such as a court of equity will specifically enforce. [1, 2] Mention has already been made of the fact that this agreement, though signed by Mrs. Thompson, was never acknowledged by her. Mr. Thomas and Mrs. Thompson, as life tenant and trustee under the will of her husband, were tenants in common of the property. As such, Mr. Thomas, of course, had no right to bind the interest of his cotenant by any lease of the premises. This What actually took place in this case was a notice, dated December 2, 1916, from Kate Thompson, trustee, to the Thomas & Thompson Company, to vacate the premises on the 31st of May, 1917. This notice referred to the agreement, Plaintiff's Exhibit No. 1, already mentioned, and by inference ratified that agreement as a lease for 5 years, and then seeks to treat the appellee company as being a tenant holding over, and therefore a tenant from year to year. The communication of Mr. Boyd, which accompanied the notice, speaks of the agreement as a “supposed lease," for a period of 15 years. The instrument to which this refers makes no mention of a term of 15 years; that duration can only be arrived at by combining the two terms named therein, and for which terms the amount of rental payable was not the same. the appellee, on the 30th of April, 1917, filed the bill in this case, by the prayers of which the following relief was asked: An injunction against the appellant to restrain any proceedings at law for the recovery of the premises, and a decree for a specific performance or execution of a lease, in conformity with the terms of Plaintiff's Exhibit No. 1. The answer, after admitting a number of the allegations contained in the bill, relies mainly upon two grounds: First, that under the terms of the will of her husband, Albert E. Thompson, she was without power to enter into such an agreement as that proposed; and the second ground of defense was as to the proper rule of law applicable to such cases. This notice having been served, [3] The will of Mr. Thompson, in so far as it places a limitation on the power of his executrix and trustee to deal with the property, is as follows: "I hereby confer upon my executrix, or her successor in charge of my estate, full power and authority for the purpose of changing the investments of my estate so left, or for the purany part or all of the property so held, subject, pose of making division thereof, to sell and lease however, to the approval of the court.' The defendant claims that, no authority Carter, 18 Md. 108, there had been a modiof the court having been given, such an agreement of lease as that now involved would be an ultra vires act. This, however, is a misconception of the plain intent of the testator. The approval of the court was evidently intended to apply only to the sale of property for the purpose of reinvestment, or a partition of the estate. The proposed agree ment is neither; it looks only to obtaining a proper and adequate return from the estate, as it had been held by the testator, without any reference to a change of investment or partition. [4] The legal requirements for the maintenance of a bill for specific performance have been so frequently repeated in this court that it would be a work of supererogation to again recite them. They were tersely stated in King v. Kaiser, supra, when it was said: "To maintain a bill for specific performance it is requisite * that the agreement, which the court is asked to require to be performed, must be fair, just, reasonable, bona fide, certain in all its parts, and made upon a good and valuable consideration." * * Tested by these requirements, and the evidence given at the trial of this case, there is not an element lacking upon which to base a refusal of a decree such as that asked for. [5] Much of the contention at the trial of this case below grew out of an application for leave to amend the answer of Mrs. Thompson, as trustee, and the amendment desired was the insertion in that answer of the following language: "And that at and before the time of the signing of the alleged lease she asked the said John B. Thomas if it was all right to sign the said paper, and he said, 'Kate, you know I would not ask you to do anything that was not right, and this paper is all right to sign,' and that in reliance upon the aforementioned intimate relationship between the said Thomas and herself, and ignorant of the contents of said paper, and be cause of said statement from Thomas to her, she was fraudulently induced to sign the same.' The application for leave to amend was refused by the court, and the correctness of that ruling has been sought to be raised in this court. In the case of McKim v. Thompson, 1 Bland, 162, the learned Chancellor said: "It is with great difficulty permitted to a defendant to make any alteration in his answer, even upon a mistake, and there is no instance of its having been allowed for the purpose of retracting a clear and well-understood admission. It should appear due to general justice to permit the issue to be altered.' The case is referred to by Mr. Miller in his work on Equity, in section 189, and that au thor adds: "A special case must be shown to allow the amendment. Before the court will permit the issue to be changed in this way, the defendant must show that it is due to justice that the amendment should be made." fication in the phraseology of the section relating to amendments, and it was claimed in that case that the effect of the amendment had been to relax somewhat the strictness of the rule governing amendments to answers. That decision, however, sustained the prior rule, and went even further, holding in effect that the propriety of a proposed amendment lay in the discretion of the court to which the application for leave to amend was made, and that no appeal lay from its action in regand thereto. This case was later followed in Glenn v. Clark, 53 Md. 602. Without passing at this time upon the question of the right of appeal from an order refusing an amendment, there is another consideration which is necessarily controlling in this case. It is said by Miller (section 94) that: "A bill must be consistent with itself and must not contain averments which are repugnant to each other." Manifestly that which is true of a bill of complaint in this respect applies with equal force to an answer. What, then, would have been the effect of permitting the amendment asked to be made? It would have placed the defendant in one part of her answer in the position of affirming an agreement, under which she had received the benefits, and in another of repudiating it as null and void ab initio, because of fraud in procuring her assent thereto. It is difficult to conceive of any diametrically inconsistent positions than a granting of the application to amend would have permitted the defendant to occupy. Nor is this all. This application was made to the court after the defendant Mrs. In her evidence Thompson had testfied.. more she was asked and answered as follows: "Q. What, if anything, was said to you by him about the signing of that paper immediately prior thereto? A. Nothing was said to me about the signing of the lease at all." If the application for leave to amend had been granted, there would have been a direct conflict between the allegations of the answer and that to which the defendant had then testified. It follows that, if it be assumed, though the question is not now decided, a refusal to amend an answer may be made a ground of reversal in this court, nevertheless the facts as shown by the record fully sustain the action of the trial court, and the decree appealed from should be affirmed. Specific objection has been made by the appellant to having imposed upon her the cost of the insertion in the record of certain exhibits, and under the rule of this court (12a) the position is well taken. of the insertion of the following exhibits will therefore be chargeable against the appellees: Plaintiff's Exhibits A, B, C, D, E, F, and I. The cost The same doctrine was announced in Williams v. Savage Mfg. Co., 3 Md. Ch. 418. Be- Decree affirmed, costs to be paid by the the record of Plaintiff's Exhibits A, B, C, D, E, F, and I; the same to be ascertained and taxed by the clerk of this court. (132 Md. 406) McCOMAS et al. v. WILEY et al. (No. 15.) (Court of Appeals of Maryland. April 2, 1918.) 1. COURTS 202(2) PROBATE COURT PLEADING. Although formal pleadings are not required in the orphans' court, a petition that is vague, indefinite, and ambiguous is subject to demurrer. 2. PLEADING 18-PETITION-UNCERTAINTY. A petition filed in the orphans' court against administrators by the heirs of the wife of the deceased, stating that deceased and his wife died on same day without stating which survived the other, and asking for proceeds of insurance policy without specifying who is assured on the policy or whether it was a regular policy on life benefit certificate, held vague and indefinite. 3. COURTS 2001⁄2 PROBATE ORPHANS' COURT JURISDICTION-REAL ESTATE. The orphans' court has no jurisdiction to hear and determine an action involving title to real estate. 4. COURTS 201-ORPHANS' COURT-JURIS DICTION-DETERMINING HEIRSHIP. The orphans' court, having authority to supervise the accounts of an executor or administrator of deceased person, has the authority, incident thereto, of determining who are deceased's next of kin. Charles L. Wiley, and are now the legal owners of the farm in Harford county, consisting of about 119 acres of land, on which the testator resided, and of which he died seised; that the petitioners are desirous of being possessed of said farm as soon as they reasonably can, without in any way interfering with the gathering of the crops growing at the time the petition was filed; and, lastly, that the personal estate of the testator consisted of various chattels used in farming, the crops, and a certain life insurance policy, the amount of which was unknown to them. No copy of Mr. Wiley's will was filed with the petition. It was to this petition that the administrators c. t. a. of Charles L. Wiley filed a demurrer, assigning eight grounds of alleged defect, as follows: "(1) Because this court has not jurisdiction to determine the title to personal property; (2) because this court has not jurisdiction to determine the title to real estate; (3) because the petitioner does not set forth sufficient facts to enable this court to determine the validity or effect of the said will of Charles L. Wiley, deceased; (4) Because the petitioner does not set forth sufficient facts with reference to the deaths of the said Charles L. Wiley and of his wife, Mary Edith Wiley, nor the order in which the same occurred to enable this court to deter mine whether or not said will was revoked by the death of the said Mary Edith Wiley; (5) because it does not appear from said petition Appeal from Orphans' Court, Harford who are the heirs at law or distributees of said County. Action by Charles H. McComas and others against Thomas H. Wiley and others, administrators of Charles L. Wiley, deceased. From a ruling sustaining defendants' demurrer to the petition, plaintiffs appeal. Affirmed. Argued before BOYD, C. J., and BRISCOE, THOMAS, PATTISON, URNER, STOCKBRIDGE, and CONSTABLE, JJ. Wm. Pinkney Whyte, Jr., of Baltimore, for appellants. S. A. Williams, of Bel Air (Philip H. Close, of Bel Air, on the brief), for appellees. STOCKBRIDGE, J. This appeal is from the orphans' court of Harford county, sustaining the demurrer to a petition filed by Charles H. McComas and others against the administrators c. t. a. of Charles L. Wiley, deceased. The allegations of the petition may be briefly stated as follows: That on June 28, 1917, the orphans' court of Harford county appointed Thomas H. Wiley and others administrators c. t. a. of the estate of Charles L Wiley; that the testator by his will gave to his wife, Mary Edith Wiley, all of his estate, both real and personal; that Mary Edith Wiley died on the same day as the testator, leaving no child, children, or descendants of any child, but only her five brothers, as her heirs at law and distributees, and no child or children of any deceased brother or sister; that the petitioners have become entitled to recover all of the personal estate of the said Charles L. Wiley; (6) because it does not appear that the said petitioner and his said brothers were the heirs at law and distributees of the said Mary Edith Wiley at the instant of her said death, nor how they became such; (7) because this court has no power to adjudicate questions of title dependent upon the operation and effect of a will; (8) because the said petition lacks necessary parties, to wit, the heirs at law of the said Charles L. Wiley, who are the said defendants Thomas H. Wiley, Richard H. Wiley, Harry F. Wiley, and Robert L. Wiley, in their individual capacities, and ElizaCaroline B. Anderson, widow, their sisters." beth A. Slade, the wife of Asbury Slade and After hearing the orphans' court of Harford county sustained the demurrer, and dismissed the petition on the ground of lack of jurisdiction. This action of the orphans' court must be affirmed. At the argument in this court facts were alleged and conceded which do not appear in the record, but to which it seems necessary to make some reference, in order that this opinion may be properly understood. In June, 1917, Mr. and Mrs. Wiley, with their only child, Ruth, were crossing the tracks of the Northern Central Railway, when the automobile in which they were riding was struck by an express train, and all three killed, apparently instantaneously. [1] The statement of the petition in regard to Mrs. Wiley that she "departed this life intestate on the same day as the testator, leaving no child or children or descendant of any child," is by no means a full disclosure of the facts, such as the petitioners now concede them to have been. It is not stated or |