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proach so far as his integrity was concerned, of the executors, but Mr. Wirt requested him had been such as to facilitate the devastavit to act, and he consented to do so with the unby his cotrustee. derstanding already stated as to the division of duties. He had no communication on this subject with any of the persons interested under the will. He felt justified in reposing implicit confidence in his cotrustee because of the bigh respect in which the latter was held as a lawyer of ability and integrity down to the time of his death. It was urged by the appellant that the allotment to Mr. Wirt of the exclusive administration of the personal assets of the trust was.natural and proper on account of his business experience, and that the appellant was not required to deal with his associate as an object of sus

ply the funds committed to his care. It was claimed that a provision in the will confer ring upon the "executors or the survivor of them" the right "generally to do all things necessary to the proper management" of the

It appears from the testimony of the appellant that at the inception of the trust he entered into an arrangement with his associate, Mr. Wirt, by which the latter was to have exclusive management of the personal estate, while the appellant was to have charge of the real property; that he accordingly left the entire administration of the personalty to his cotrustee, and took no part in the duties of the trust, except as to the renting and repair of the three houses belonging to the estate and the collection of income from that source, which he regularly remitted to Mr. Wirt; that he permit-picion, and to assume that he would misapted his cotrustee to make investments upon his sole discretion, never asked to see any of the securities, and did not know whether any were taken; that Mr. Wirt sent him at his request in 1901 a statement purporting to show investments of the personal estate, but | estate authorized the trustees to make the arhe made no further inquiry after that time; that he joined in releasing mortgages, but did not receive any of the money repaid, and knew nothing about its further disposition; that the bank account of the trust was kept in the name of Mr. Wirt as executor and was checked on by him exclusively, this being done by virtue of a written authorization from the appellant addressed to the bank; that he never examined the bank account or the checks drawn upon it, or the income accounts filed by Mr. Wirt in the orphans' court in the joint names of the trustees; and that, if he had inspected the latter accounts, he would have observed discrepancies which would have caused him to believe that the estate was being improperly administered. He testified that there was no loss, to his knowledge, from unsuitable investments, but that the amount represented by the deficiency was squandered by his cotrustee. He also stated that he received commissions on the income from the whole estate, except the receipts indicated in the trustee's fifth account. His candor with respect to his attitude towards the trust is illustrated by the following quotation from his cross-examination: "Q. And I understand from you that you didn't have any hand in squandering it, but could, by the exercise of reasonable care in looking after the personal estate, have ascertained and prevented this loss. That is correct, is it? A. Yes; that is correct."

rangement in question. Attention was also called to another provision that the "executors and the survivor of them shall not be held responsible for the depreciation of any property so held by them in accordance with my directions, it being my intention that my said executors, or the survivor of them, shall only be responsible for such money as they shall actually receive by virtue of the trust hereby reposed in them"; and it was argued that this indicated a design that each of the trustees should be liable only for his own dereliction. The appellant, therefore, insists that having properly performed the duty of managing the realty, as imposed upon him in the division of the administration of the trust, he should not be held accountable for a default with respect to a portion of the estate of which his associate had complete and separate control.

We have no doubt as to the appellant's good faith in his conduct towards the trust, but we must concur in the conclusion of the learned court below that his defense is not sufficient to exempt him from the liability with which he is charged in this case. It is apparent from his own showing that he voluntarily relinquished to his cotrustee the custody of all the assets of the estate that were at all susceptible of misappropriation. While accepting the joint trust created by the will, the appellant by his affirmative act invested his associate exclusively with a power of control which the testator intended should be exercised by both the fiduciaries he appointed. It was in evidence that the apa man of practical business experience, a cousin of the testator, and the head of a corporate enterprise with which the latter was officially connected. It appeared, also, that the appellant received $4,000 from two life insurance policies transferred to him by the testator shortly before his death. The relations between these two

[1] The appellant contends, however, that under the circumstances of the case "he is not liable," to use the language of his brief, "for the acts of his cotrustee, particularly | pellant was in view of the fact that he acted with perfect good faith, without any connivance in or knowledge of the wrongdoing of his cotrustee, and in strict conformity with what he conscientiously believed to be his strict duty under the will." He testified that because of strained relations between the beneficiaries

an intimate and confidential character, and follows: "If, therefore, a trustee or executhey are sufficient to account for the appel-tor, by any act, omission, supine negligence, or lant's selection as a trustee. It was optional with him to accept or decline the trust, but, having undertaken the duty imposed by the will, it was not competent for him to limit his obligation or divest himself of any part of his fiduciary discretion. The estrangement of the appellant from the beneficiaries would only have been pertinent as an inducement for refusing to assume the trusteeship. It certainly could not be a material consideration in defining his responsibility when the trust had been actually accepted. As this circumstance did not interfere with his administration of the real estate of the trust, we are unable to understand how it could embarrass his participation in the management of the personalty.

undue confidence abandons any portion of the fiduciary estate to his companion, so as to tend to its jeopardy or final loss, this per se is a breach of trust and subjects such trustee or executor to all losses consequent on such crassa negligentia, without any regard to acts of direct co-operation, such as receipts, conveyances, etc." In Glenn v. McKim, 3 Gill, 366, the court observed: "It has been said (and in many cases of trust it should be remembered) that cotrustees are bound to watch the conduct of each other; and in a former case in this court it was stated to be the received doctrine that if the trustee, 'who wasted the estate, was in any degree facilitated therein by the acts and omissions of the other, they are both equally liable.'" Ringgold v. Ringgold, supra. To the same general effect is the case of Latrobe v. Tiernan, 2 Md. Ch. 475. The principle applied in the cases already cited was recognized, also, in the case of Barroll v. Forman, 88 Md. 199, 40 Atl. 883, where it was said that "one trustee may so commit the execution of the trust to his cotrustee, or so ratify his acts, as to make him responsible to third parties for the defalcation of the latter."

[2] There is nothing in the will to sustain the contention that an apportionment of the duties of the trust was intended to be authorized. On the contrary, it is clear that the testator, in conferring the trust upon the executors named "and the survivor of them," understood that he was reposing in them a discretion to be jointly exercised so long as they should both continue in the trust. The provision quoted as to the trustees being held responsible only to the extent of the money In the case before us the confidence of the actually received is plainly shown by the testator and the duties of the trust were context to refer only to a possible deprecia-reposed in two trustees whose joint administion in the value of property which the testa-tration was contemplated as desirable for the tor directed should be held until it could be due management and protection of the essold to advantage. It cannot be construed tate. In accepting the appointment the trus to mean that each of the trustees should be tees assumed the joint and equal obligation relieved of all liability as to any portion of of exercising their discretion and control with the estate he might find it convenient to sur- respect to the trust in its entirety. The arrender to the sole custody of his associate. rangement which they effected, for their in[3] As a general rule a trustee is respon- dividual convenience, to divide and separate sible only for his own acts or defaults; but their functions, was essentially different from if by any affirmative conduct or any omis- the policy of united action indicated in the sion of duty he facilitates, though innocently, will by which they were to be governed. If a breach of trust, which a due attention to the testator had desired to commit the perhis duty would have prevented, he is liable sonalty to one trustee and the realty to the for the resulting loss to the beneficiaries other, he would have doubtless so provided. whose interests were confided to his protec- When the appellant surrendered to the abtion. 2 Pomeroy, Eq. Jur. § 1082. It is well solute control of his cotrustee the personal settled that such a liability exists where "by assets of the estate, he created an opportuniany positive act, direction or agreement of one joint executor, guardian or trustee, the ty for misappropriation which would not trust money is paid over and comes into the have existed if the obvious purpose of the hands of the other when it might and should will had been observed. When he authorized have been otherwise controlled or secured by the deposit and disbursement of the trust both," as "if it is mutually agreed between money by his associate alone, there was noththem that one shall have the exclusive man- ing further that could be done to facilitate agement of one part of the trust property any wrongful disposition which the latter and the other of the other part" (2 Story's might wish to make of the funds. It is eviEq. Jur. [13th Ed.] § 1284), or if one of the dent that this is not a case of mere passive trustees permits the trust funds to be de- omission to exercise proper care and vigiposited in bank to the sole credit of his co-lance, but it is a case of affirmative action, trustee (1 Perry on Trusts [3d Ed.] § 419). It was held in Maccubbin v. Cromwell, 7 Gill & J. 157, that where one trustee delegates to another important duties of the trust, and under such circumstances funds have been wasted, he is liable to account to the parties injured. The rule was stated in Ringgold v.

induced by undue confidence, making possible and easy a defalcation by the cotrustee. The liability of the appellant is therefore fully established upon the well-settled principles to which we have referred.

In accordance with this conclusion, the order of the court below will be affirmed.

(115 Md. 156)

HORPEL et al. v. HAWKINS.

(Court of Appeals of Maryland. Feb. 23, 1911.) APPEAL AND ERROR ($ 628*)-RECORds-DeLAY IN TRANSMISSION-EXCUSE.

Warburton v. Robinson, supra; Steiner v.
Harding, 88 Md. 343, 41 Atl. 799; Mason v.

Gauer, 62 Md. 263; Ewell v. Taylor, 45 Md.

573; N. C. R. R. Co. v. Rutledge, 48 Md. 262. The appeal in this case was entered on Excuse for the record on appeal not be- September 2, 1910. It appears by an affidaing transmitted to the court of appeals with- vit of William L. Seabrook, deputy clerk of in three months from the time of the appeal, the court below, that the record was fully as required by Code Pub. Gen. Laws 1904, completed and ready for transmission to the art. 5, § 33, delay occasioned by the neglect, Court of Appeals on November 10, 1910, and omission or inability of the clerk or appellee," which section 40 provides shall not be pre- that he thereupon gave notice to the attorsumed, but being shown by appellant shall pre-neys of record for the appellants that the vent dismissal of the appeal is not shown by record was ready to be forwarded to this the fact that the clerk, who withheld it, as was his right, till the costs for its preparation were court upon the payment of the costs of its paid, omitted to demand the costs within the preparation, amounting to $55, and that it time prescribed for the transmission, and that would not be transmitted until the costs were it had been the practice of the prior clerk, who had gone out of office a year before, to trans- paid, that the costs were not paid until Demit records without such prepayments. cember 6, 1910, and on the same day the record was sent by express to the clerk of the Court of Appeals.

Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 2750-2764; Dec. Dig. § 628.*]

Appeal from Circuit Court, Carroll County, in Equity; Wm. H. Thomas, Judge.

Suit between Lewis Horpel and another, mortgagors, and Walter L. Hawkins, assignee. From an adverse decree, the former parties appeal. Dismissed.

Argued before BOYD, C. J., and BRISCOE, PEARCE, SCHMUCKER, PATTISON, and URNER, JJ.

There can be no question as to the right of the clerk to withhold the transcript until

his costs for preparing it are paid (Steiner v. Harding, supra); and the affidavit to which we have referred shows distinctly

that the record was ready in ample time, and that the delay in its transmission was not due to the fault of the clerk or appel

lee. It is contended, however, that an additional affidavit of the same deputy, supplemented by the deposition of Mr. George

Guy W. Steele, for appellants. Jno. Milton A. Miller, a previous incumbent of the office, Reifsnider, for appellee.

shows that the clerk was in fact responsible. Mr. Miller's affidavit states that he was either clerk or deputy clerk of the court below from December, 1867, to December, 1909, and during that period had charge of the prep

that it was the practice of the office during his incumbency for the clerk upon an order for appeal being given to make up and transmit the record within the time prescribed by law without requiring payment of the costs, unless delay was desired by the attorneys, except in a few cases where costs were demanded; that this practice was uniform during the period mentioned, and the record was invariably transmitted unless the payment of costs was refused. It is to be observed that this deposition refers to a period which terminated nearly a year before the record in this case was prepared, and there is nothing to show that the practice indicated was adopted or continued by the present clerk. It is therefore not necessary to consider how far such a practice would be material in determining the responsibility for delay in sending a record to this court on appeal.

URNER, J. The view expressed by the court at the argument of this case that the motion to dismiss the appeal would have to be granted has not been modified upon fur-aration of records for the Court of Appeals; ther consideration. We have not been able to reach the conclusion that the appellants have met the burden, imposed upon them by the law, of showing that the failure to transmit the record within three months from the time of the appeal as required by Code, art. 5, § 33, was due to the neglect of the clerk or appellee. While an appeal may be entertained notwithstanding the prescribed limit of time for the transmission of the record is exceeded, if it appear that the "delay was occasioned by the neglect, omission or inability of the clerk or appellee," yet this is not to be presumed, but must be shown by the appellant. Code, art. 5, § 40; Warburton v. Robinson, 113 Md. 24, 77 Atl. 127; M. D. & V. Ry. Co. v. Hammond, 110 Md. 124, 72 Atl. 650; Estep v. Tuck, 109 Md. 528, 72 Atl. 459; Parsons v. Padgett, 65 Md. 356, 4 Atl. 410; Willis v. Jones, 57 Md. 362; Duvall v. Md. Electric Ry. Co. (October Term, 1910), 114 Md. 298, 79 Atl. 192. It is well settled that, "in the absence of proof that the clerk or appellee was delinquent, the presumption is that the appellant was responsible for the delay, and he must satisfy the court that by proper diligence the record could not have been prepared and transmitted in time."

The additional affidavit of Mr. Seabrook, the deputy clerk, states that upon the order for appeal being filed he began work upon the record, but was unable to complete It until November 10th; that shortly before the appeal was entered he was requested by the local counsel for the appellants to estimate the cost of the record; that after its

that it reached this court within the statutory period (Parsons v. Padgett, supra); and the statement of the appellants' attorney to the deputy clerk that he did not care to examine the record is not of itself sufficient to prove that the clerk or appellee was accountable for the subsequent delay. In Steiner v. Harding, supra, it was said: "The prima facie evidence requiring the court under its rules to dismiss an appeal is furnished when the fact appears that more than three months have elapsed between the date of the entry of the appeal and the date of the transmission of the record; and this prima facie evidence must be rebutted and overcome by the appellant. He can overcome its effect by showing that the delay was due (first) to the neglect, (second) to the omission, or (third) to the inability of the clerk. If he fails to establish at least one of these exculpatory circumstances, there is no discretion given this court to entertain the appeal; and the appellee's right to have it dismissed, secured as it is by the positive terms of the rule, becomes fixed and indefeasible. The rule has the binding force of a statute and its observance is obligatory on this court. We have no power to relax it, or to disregard it so long as it remains unrevoked. Cases falling under it are not within the domain of a judicial discretion, but they are govern

completion he told the local counsel that it appellants from their responsibility to see was finished and asked if he desired to see it, to which the latter replied: "No; I am sure it is all right," or words to that effect; that this was during the November term of the court below; that, having decided that the costs should be paid before the record was forwarded, he later spoke to the local counsel about the costs, and, seeing that he had no time to give to the matter, asked him whether the deponent should write to the associate counsel in Baltimore city for the costs; that, having received a reply in the affirmative and being furnished with the address of the attorney in Baltimore, he wrote to the latter on the subject and received the costs in due course of mail, whereupon the record was transmitted. The affiant further stated that he believed the appellants paid the costs as promptly as possible after the receipt of his letter, and that the only bill or statement of the amount of the costs made by him to the appellants or their attorney was that contained in the letter referred to in which they were stated to be $55, and in which notice was given that they must be paid not later "than Tuesday next, the last day for sending up the record to the Court of Appeals," and that the costs were paid within that time. It appears, how ever, that the deputy was in error in reference to the date of the expiration of the time for sending up the record, as it actual-ed by its imperative provisions." ly expired on December 2d, the day on which the letter was written.

The court has no alternative under the circumstances of this case but to apply the plain provisions of the law and to dismiss the appeal.

Appeal dismissed.

(115 Md. 182)

LONGLEY et al. v. McGEOCH et al. (Court of Appeals of Maryland. Feb. 23, 1911.) 1. COURTS (§ 18*)-JURISDICTION SUBJECTMATTER INJUNCTION-ACTING IN PERSON

AM.

Injunction operates in personam, and, if the person is within the jurisdiction, it is not material that the subject-matter is without the jurisdiction.

[Ed. Note.-For other cases, see Courts, Dec. Dig. § 18.*]

There is also before us an affidavit of William Penrose, Esq., the attorney for the appellants in Baltimore city, and one by Lewis Horpel, one of the appellants, showing that the costs were paid as soon as they were notified by the clerk that the payment would be required. It is urged that there is an inconsistency between the two affidavits by the deputy clerk to which we have referred, in that the first indicates that upon the completion of the record on November 10th the deputy "thereupon" gave notice to the appellants' attorney that the record would not be transmitted until the costs were paid, while the second states that, the record being completed, the deputy "later" spoke to one of the attorneys in reference to the costs. It was also argued that, if the depositions In a complaint for an injunction against were not inconsistent, the second affidavit blasting operations, filed by parties residing should be regarded as defining what was near a quarry, a prayer for relief for themmeant by the term "thereupon" as used in selves and all others interested, and who may the first. But, if we should adopt either of be made parties to the proceeding, for a perpetual injunction against the defendants prohibthe theories suggested, we would neverthe-iting them from casting rocks upon the premisless be unable to conclude that the appellants es of complainants and others similarly situated, had discharged the burden of showing affirm- and from so conducting the quarry as to interfere with the free use of the roads through such atively that the clerk or appellee was respon-premises by the complainants and any others ensible for the failure to forward the record within the time prescribed by law. The mere omission of the clerk to demand the costs within the time prescribed for the transmission of the record would not exonerate the

2. NUISANCE (§ 32*)-INJUNCTION-PLEADING -PRAYER FOR RELIEF AND PROCESS.

titled to use them, is definite and certain as to the plaintiffs named and is good on demurrer; and under Code 1904, art. 16, § 147, relating to prayer for process, a prayer which contains the name and residence of an individual defendant and the name and place of the principal office

of a corporation defendant is likewise good on demurrer.

[Ed. Note. For other cases, see Nuisance, Cent. Dig. §§ 77-83; Dec. Dig. § 32.*]

3. NUISANCE (§ 19*)-NUISANCES SUBJECT TO INJUNCTION.

A blasting of rocks in a quarry so as to cast stones upon premises near it and to keep persons residing thereon in fear and danger while using the premises and the avenues and roads giving access to them is a nuisance which may be enjoined.

[Ed. Note. For other cases, see Nuisance, Cent. Dig. § 55; Dec. Dig. § 19.*]

4. NUISANCE (§ 3*)-NOISE AS "NUISANCE." Noise alone, if it be of such a character as to be productive of actual physical discomfort and annoyance to a person of ordinary sensibility, may create a nuisance, the subject of a remedy at law or in equity.

[Ed. Note. For other cases, see Nuisance, Cent. Dig. §§ 4-25; Dec. Dig. § 3.*

For other definitions, see Words and Phrases, vol. 5, pp. 4855-4864; vol. 8, p. 7734.] 5. NUISANCE ( 30*)—INJUNCTION-LIABILITY OF LESSOR.

An owner of property cannot escape liability for a nuisance thereon by leasing it, since the lessor of premises which are a nuisance or which become so by their use and who receives rent for them is liable therefor, whether in or out of possession of the premises, and hence a lessor of a quarry is a proper party to an action

to enjoin it as a nuisance.

[Ed. Note. For other cases, see Nuisance, Cent. Dig. § 69; Dec. Dig. § 30.*]

6. NUISANCE (§ 26*)-INJUNCTION-PERSONS ENTITLED TO INJUNCTION.

The fact that a complainant has moved to a location where he is damaged by an existing nuisance is no defense to his action to enjoin it. [Ed. Note. For other cases, see Nuisance, Cent. Dig. §§ 64-66; Dec. Dig. § 26.*]

7. EVIDENCE (§ 586*)—WEIGHT-POSITIVE AND NEGATIVE TESTIMONY.

The affirmative testimony of one credible witness as to a fact in issue must outweigh a dozen equally credible witnesses whose testimony is merely negative.

William A. Wheatley, for appellants. Alfred J. Carr, for appellees.

PEARCE, J. This is an appeal from a decree of the circuit court of Baltimore city making perpetual an injunction previously granted by that court, and also adjudging both defendants to be guilty of contempt in violating the terms of the preliminary injunction outstanding, and ordering that the defendant corporation forfeit and pay a fine of $100 as a penalty for having violated said injunction. The three plaintiffs are residents of a suburban settlement in Baltimore county, called Rognel Heights, just beyond the western limits of Baltimore city, and are owners of real estate located there. The defendant Wm. M. Longley is a resident of defendant the W. M. Longley Quarry ComBaltimore city, and is president of the other pany, a body corporate, with its principal office in Baltimore city. Wm. M. Longley is the owner of a tract of land adjacent to the property of the plaintiffs, upon which is a quarry of stone which is operated by the W. M. Longley Quarry Company. The amended bill of complaint alleges that this quarry is distant about 900 feet from the dwelling of the complainant Harry N. McGeoch, and from the dwelling of the complainant Lewis Bihy, and about 600 feet from the waterworks of the complainant Wm. T. Pfeiffer; that there are a considerable number of other dwellings on said Heights occupied by the families of the owners or tenants; that prior to February 15, 1909, Wm. M. Longley was operating said quarry under the name of the W. M. Longley Quarry Company, blasting and exploding by dynamite large quantities of stone for sale for various uses, and that frequent complaints had been made to him of the consequence of such blasting, and that he had

[Ed. Note.-For other cases, see Evidence, Cent. Dig. §§ 2432-2435; Dec. Dig. § 586.*] 8. NUISANCE_(§ 33*) - INJUNCTION - SUFFI-been notified that, unless he desisted from CIENCY OF EVIDENCE.

Evidence in an action to enjoin the blasting of rocks in a quarry so as to cast stones upon the complainant's premises near it, and to keep persons residing thereon in fear and danger, held sufficient to sustain a decree for a perpetual injunction.

[Ed. Note. For other cases, see Nuisance, Cent. Dig. §§ 84-89; Dec. Dig. § 33.*]

Appeal from Circuit Court of Baltimore City; Alfred S. Niles, Judge.

blasting in such a way as to throw rocks and stones upon complainants' premises, proceedings would be taken to enjoin him, but he nevertheless continued to blast and to throw rocks and stones upon complainants' property, injuring the same, and endangering the lives of them and their families; that on February 15, 1909, said Longley leased said quarry to said quarry company, which has ever since continued blasting in the same manner and with the same results almost every day in the week except Sunday, and frequently at intervals during the whole day, rendering it necessary at times for those in the neighborhood to seek some secure and

Bill for an injunction by Harry N. McGeoch and others, made parties plaintiff by order of court, against William M. Longley, with an amended bill making the William M. Longley Quarry Company a codefendant. From a decree making perpetual a preliminary injunction, and adjudging both defend-protected place when the blastings are about ants guilty of contempt in violating the preliminary injunction and imposing a penalty therefor, defendants appeal. Affirmed.

Argued before BOYD, C. J., BRISCOE, PEARCE, SCHMUCKER, and URNER, JJ.

to occur; that injury has been done to the property of complainants and others at the Heights, and workmen there engaged in work have been compelled to quit their labor to avoid personal injury; that sometimes, both

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