text:
    BOARD OF COUNTY COMMISSIONERS OF CECIL COUNTY, et al. v. ELWOOD RACINE
    [No. 303,
    September Term, 1974.]

      Decided February 13, 1975.

      The cause was argued before Thompson, Powers and Menchine, JJ.

      Edwin B. Fockler, III, for appellant Board of County Commissioners of Cecil County, with whom was Daniel H. Bathon on the brief, for other appellants.

      Harry J. Goodrich for appellee.
   Menchine, J.,

delivered the opinion of the Court.

Elwood Racine, (Racine) was the owner of a mobile home subdivision, known as Mansion Heights, in Cecil County, Maryland. The subdivision consisted of 7 lots of about one half acre each as shown on a duly approved plat, recorded among the plat records of the Circuit Court for Cecil County in March, 1967, in Plat Book W.A.S. No. 2, folio 77. The seven lots were laid out on the north and south sides of Mansion Drive. Mansion Drive entered the development from Route 272. The tract was within the “Highway Commercial Zone C-2.” On July 26, 1973 Racine filed an application for a zoning and sanitary permit with the zoning department for the use of lot 2 in the mobile home subdivision for a mobile home without a permanent foundation. The zoning officer denied it. Racine’s appeal to the Cecil County Board of Appeals (Board) also resulted in a denial of the requested permit. Racine’s appeal to the Circuit Court produced reversal of the Board’s decision. An appeal to this Court by the Board of County Commissioners of Cecil County and by other aggrieved persons followed.

For reasons hereafter stated, we conclude that use of lot 2 of Mansion Heights for a mobile home without a permanent foundation in a mobile home subdivision is an authorized use of land within the C-2 zoning. We find this conclusion not dispositive of the litigation however, because of the contention by appellants that a doctrine akin to res judicata, arising from an earlier, identical decision by the Board in prior litigation, bars Racine’s requested use.

The Interpretation of the Ordinance

The Cecil County zoning ordinance essentially is of the cumulative type, with quite limited exceptions. Otherwise stated, such uses as were authorized in residential zone R-3 generally continued to be authorized uses in local commercial zone C-l and such uses as were authorized in the latter generally continued to be authorized uses in highway commercial zone C-2. The pertinent portions of zone R-3, zone C-l and zone C-2 (together with the pertinent limiting exceptions applying in C-l and C-2 zones) read as follows:

“Subsection 3. Residential Zone R-3 (High-Density)
This zone is residential in character, but permits the wide variety of dwelling types suitable to urban living.
a. The following uses are permitted:
1) all uses permitted in Residential Zone R-2 (Medium-Density);
2) multiple dwellings;
3) apartment hotels;
4) fraternity or sorority houses;
5) boarding houses and rooming houses;
6) mobile home subdivisions;
* * * ”
“Subsection 7. Local Commercial Zone C-l This zone is meant to provide for the daily shopping and business needs of nearby residences, and contains those retail, service, and office uses which serve primarily the local population,
a. The following uses are permitted:
1) all uses permitted in the Residential Zone R-3 (High Density) but not special exceptions permitted therein;
* * * 11
“Subsection 8. Highway Commercial Zone C-2 This zone contains uses catering to highway travelers and also uses which serve the shopping and business needs of the local and regional population.
a. The following uses are permitted:
1) all uses permitted in Local Commercial Zone C-l, except dwellings;
* * * 1

To recapitulate, mobile home subdivisions are specifically authorized in the R-3 zone; continue to be authorized by blanket authorization in zone C-l; and continue to be authorized by blanket authorization in zone C-2, unless such use is prohibited by the limiting words in Section 5, subsection 8 a (1), supra.

Section 18 of the Cecil County zoning ordinance provides the following pertinent definitions:

“Dwelling, One-Family — A detached residence on a permanent foundation designed for or occupied by one family only.
Dwelling, Two-Family — A residence on a permanent foundation designed for or occupied by two families only, with separate housekeeping and cooking facilities for each.
Dwelling, Multiple-Family — A residence on a permanent foundation designed for or occupied by three or more families, with separate housekeeping and cooking facilities for each.
Dwelling Unit — A group of rooms located, within a building and forming a single habitable unit with facilities which are used or intended to be used for living, sleeping, cooking and eating purposes.
Mobile Home — A movable or portable residence at least 34 feet in liveable length built on a chassis connected to utilities and designed without a permanent foundation for year-round living.
Mobile Home Camp — Any plot of ground which two or more mobile homes may be placed temporarily for not more than six (6) months of any year.
Mobile Home Park — Any plot of ground of at least four (4) acres upon which a minimum of five mobile home spaces are located.
Mobile Home Subdivision — A mobile home park, except that lots and streets must conform to subdivision regulations for single-family dwellings.”

The Board of Appeals had denied Racine’s application. In doing so it had in substance adopted the interpretation of the ordinance as expressed in a decision by a predecessor board on December 6, 1967 upon an identical application by Racine for permits as to other lots in the same subdivision. That board in rejecting the earlier application had said, inter alia:

“In perusing sub-section 8 a (1) which permits, as aforesaid, ‘All uses permitted in local commercial zone C-l, except dwellings’, the Board notes that in Local Commercial Zone C-l all uses are permitted in the Residential Zone R-3 (high density) but not special exceptions permitted therein. Residential Zone R-3, permits, as a matter of right, certain uses among which are mobile home subdivisions.
“Fundamentally, in the final analysis, the Board feels that the legislative intent rather than any technical niceties written into the Ordinance should govern the interpretation of the section in question. Thus in view of the very plain and obvious purposes for which the Highway Commercial Zone C-2 is designed, it does not appear to the Board that it will be consistent with these purposes to permit the location of a permanant residential development therein, be the same ‘dwellings’, or ‘residences’, or ‘mobile homes’.
“That the Board has the authority to interpret the Ordinance is amply supported by the Provisions of Section 9, Paragraph 1 when read in conjunction with the provisions of Section 8, Paragraph 2. It is therefore the opinion of the Board that the decision of the Zoning Inspector granting the permits to locate the mobile homes as aforesaid be reversed and the applicant be required to remove said mobile homes within thirty (30) days of this Opinion.”

The sections referred to in the last quoted paragraph of the Board’s 1967 decision read as follows:

“SECTION 8. BOARD OF APPEALS: PROCEDURE
* * *
2. Hearings; Appeals; Notice — Appeals to the Board of Appeals concerning interpretation or administration of this ordinance may be taken by any person aggrieved or by any officer or bureau of the governing body of the county affected by any decision of the zoning inspector. Such appeals shall be taken within a reasonable time of such decision, not to exceed 10 days, by filing with the zoning inspector and with the Board of Appeals a notice of appeal specifying the grounds thereof. The zoning inspector shall forthwith transmit to the Board all papers constituting the record upon which the action appealed from was taken.
‘The Board of Appeals shall fix a reasonable time for the hearing of appeals, give public notice thereto as well as due notice to the parties in interest, and hold the public hearing within forty-five (45) days from the date of the decision of the Zoning Inspector. At least fifteen (15) days notice of the time and place of such hearing shall be published in a paper of general circulation in the County. At the hearing any party may appear in person or by agent or attorney. The Board shall then decide the appeal within fifteen (15) days from the time of hearing.”

“SECTION 9. THE BOARD OF APPEALS: POWERS AND DUTIES

The Board of Appeals shall have the following powers and duties:
1. Administrative Review. — To hear and decide appeals where it is alleged there is error in any order, requirement, decision, or determination made by the zoning inspector in the enforcement of this ordinance.”

In reversing the Board, the Circuit Court for Cecil County in the course of its written opinion said:

“While both a mobile home and a dwelling may be resided in and used as a residence, the distinguishing feature between them is the permanency by which they are attached to the land; if it has a permanent foundation, it is a dwelling; if not, it is a mobile home. Dwellings, that is, structures with permanent foundations, are not permitted in a C-2 Zone; mobile homes, so called because they are without a permanent foundation and are readily moveable, are permitted in such a zone. Once a mobile home is placed on a permanent foundation, it would lose its character as a mobile home and become a dwelling as defined in the Zoning Ordinance. Therefore, mobile homes are permitted in a C-2 Zone.”

We agree that a mobile home in a mobile home subdivision is an authorized use in a C-2 zone. The language of the ordinance, supra, is not susceptible of an interpretation that it was intended to exclude mobile home subdivisions from within the C-2 zone. To conclude that there was a legislative intent to prohibit all residential uses in the C-2 zone would require complete rejection as meaningless verbiage of the cumulative phrases authorizing “all uses permitted in the Residential Zone R-3” (High Density) (appearing in the C-l section of the Ordinance) and “all uses permitted in Local Commercial Zone C-l” (appearing in the C-2 section of the ordinance).

An analogous suggestion was rejected by the Court of Appeals of Maryland in Clarke v. County Commissioners, 270 Md. 343, 311 A. 2d 417, wherein it was said at 348 [420]:

“Although Article 6 includes several principal permitted and conditional uses which one would normally expect to find in the agricultural zone, the legislative intent to limit the district to agricultural uses cannot be found in the body of that Article. As we peruse the permitted and conditional uses, we observe a number of them, apart from subsection (d), that negate any intent to restrict the zone to agricultural pursuits such as farming.” (Footnote omitted.)

We find nothing in Sections 8 or 9 that would prevent application to this ordinance of the legal principle that:

“In the absence of a specific provision to the contrary in the zoning ordinance, the law generally is that zoning districts having less restricted uses permit the uses of the more restricted use districts.”
Martin and Burch v. Annapolis, 248 Md. 551, 560, 237 A. 2d 728, 732-33.

Without hesitancy we declare that the December 9, 1967 decision of the Board was the product of an erroneous interpretation and application of the zoning ordinance and thus was arbitrary and capricious in a legal sense. An appeal to the Circuit Court from that 1967 decision had been dismissed as not timely taken. Thus there never has been a judicial determination of the issue before us.

Although it is plain that the Board in its present decision in substance adopted the earlier and, we think, erroneous interpretation of its predecessor, it chose.also to rely upon a doctrine akin to that of res judicata to buttress its decision. The Board’s decision in the subject case had declared, inter alia:

“On the 6th Day of December, 1967, this Board filed an opinion denying the similar request by the Applicant on the grounds that permanent residential development could not be construed as being permitted within the Highway Commercial C-2 Zone. The evidence submitted by the Applicant at the present hearing has shown no change of condition or circumstances which would justify the Board in altering its initial opinion.
“This holding of the Board is further reinforced by the decision of the Maryland Court of Appeals in Whittle vs. Board of Zoning Appeals, 211 Md. 36, which held that the Board may reconsider a previous decision only if a change in circumstances is clearly indicated. For the Board to alter its opinion on the evidence provided would, under the Doctrine of Whittle, be clearly arbitruary [sic] and caprecious [sic].”

We shall, accordingly, address ourselves to the question whether the order of December 6, 1967 is entitled to such finality between the parties as to cause Racine’s present claim of right to be barred.

The Effect of the 1967 Decision

Appellants urge that the 1967 decision of the Board operates to bar Racine’s right in subsequent litigation to contest it.

In the subject case it is uncontroverted that the issue presented is identical; the parties are identical. The sole question for our decision is the issue whether final decision by the Cecil County Board of Appeals on December 6, 1967 prevents subsequent litigation upon the identical subject by Racine under a doctrine akin to res judicata.

We have pointed out that an appeal from that decision had been dismissed as not timely filed. Thus there was no decision by a court upon the merits of the controversy. At one point in time, such a circumstance would have prevented application of the doctrine of res judicata. In Knox v. Baltimore, 180 Md. 88, 23 A. 2d 15, it was firmly stated at 93 [17]:

“The Board of Zoning Appeals not being a court of competent jurisdiction or judicial tribunal, it cannot be held that the resolution passed by that Board on February 28, 1939, was res judicata as to whether appellant had a non-conforming use in the lot in question.”

Continued viability of Knox, supra, was left in doubt by Whittle v. Board of Zoning Appeals, 211 Md. 36, 125 A. 2d 41, the case relied upon by the Board as controlling its 1973 decision. Whittle is not, of course, a precise authority for the reason that the earlier decision of the Board of Zoning Appeals in that case had been affirmed on appeal by the Circuit Court for Baltimore County. This circumstance was stressed in Whittle when it was said at 45 [46]:

“In the instant case we have, of course, a prior court determination and the question of res judicata is directly involved.”

Whittle did, however, declare at 45 [46]:

“The general rule, where the question has arisen, seems to be that after the lapse of such time as may be specified by the ordinance, a zoning appeals board may consider and act upon a new application for a special permit previously denied, but that it may properly grant such a permit only if there has been a substantial change in conditions. This rule seems to rest not strictly on the doctrine of res judicata, but upon the proposition that it would be arbitrary for the board to arrive at opposite conclusions on substantially the same state of facts and the same law.” (Interior citations omitted.)

In the later case of Woodlawn Ass’n. v. Board, 241 Md. 187, 216 A. 2d 149, it was said at 193 [153]:

“In light of the administrative procedures and adjudications which the District Council is required to follow and make in the process of rezoning, the principles of public policy which underlie the rule of res judicata logically would seem to be applicable to its actions in this respect. See 2 Davis, Administrative Law Treatise. Ch. 18 (1958); 2 Cooper, State Administrative Law, Ch. XV, §§ 1 and 4 (1965); 2 Am. Jur. 2d Administrative Law §§ 496-97 (1962); Cohen, Some Aspects of Maryland Administrative Law, 24 Md. L. Rev. 1, 20 (1964); Hollywood Circle v. Department of Alcoholic Bev. Con. (Cal., In Bank), 361 P. 2d 712, 714; Evans v. Monaghan (N. Y.), 118 N.E.2d 452, 458 (‘Any general relaxation of the rule of res judicata is inadmissible even in strictly administrative matters’).”

In the course of his opinion in Woodlawn, supra, Hammond, J. (later C. J.) said at 194 [154]:

“Professor Davis, op. cit. supra, Ch. 18 (§§ 18.02, 18.03 and 18.08 in particular), finds it completely clear on principle that ‘* * * the reasons behind the doctrine of res judicata as developed in the court system are fully applicable to some administrative proceedings’ and that ‘the courts generally follow this sound view * * * ’ He finds Dal Maso to have been based on a clear misunderstanding that an agency can never perform a function sufficiently judicial for the principles of res judicata to become applicable. Although he finds the result in Dal Maso to have been right on the theory there had been a change in conditions, Professor Davis says of the case in Sec. 18.08 of Volume 2 of his work on Administrative Law at pp. 601-02:
‘Worst of all is what the Maryland court has done — to lump together all agencies, to say that they are “arms and instrumentalities of the Legislature and are not judicial at all,” and to conclude that therefore administrative action can never be res judicata. The unfortunate results of this type of thinking are rather clearly brought out in the Maryland zoning cases. * * * Happily, however, the Maryland court has seemingly retreated from its extreme position, for it has specifically acknowledged that “innumerable controversies are decided today, by boards of legislative creation, of a character that traditionally fell within the scope of judicial inquiry.” ’ (citing Hecht v. Crook, 184 Md. 271, 277.)”

It is quite plain, accordingly, that at least some of the principles of the doctrine of res judicata are applicable to decisions by zoning boards. The fundamental principles of that doctrine are well established. An early Maryland definition of the doctrine appears in McKinzie v. B. & O. R.R. Co., 28 Md. 161, wherein it is said at 174-75:

“A judgment, to operate as an estoppel, must be upon the same subject matter and between the same parties. The term ‘parties,’ however, is not restricted to those who appear as plaintiff and defendant upon the record. It includes those who are directly interested in the subject matter of the suit, knew of its pendency, and had the right to control, and direct, or defend it. The law, in dispensing even-handed justice to all, has wisely taken care ‘ut sit finis litium; and if matters, which have been once solemnly decided, could be again drawn into controversy, there would be no end of litigation and disputes. Mr. Greenleaf has happily said, ‘justice requires that every cause be once fairly and impartially tried; but the public tranquility demands, that having been once so tried, all litigation of that question and between the same parties should be closed forever.’ ” [Interior citations omitted.)

A later Maryland definition appears in Pat Perusse Realty v. Lingo, 249 Md. 33, 238 A. 2d 100, wherein Hammond, C. J. speaking for the Court of Appeals, said at 35 [102]:

“The basic rule of res judicata is that facts or questions which were in issue in a previous action and were therein determined by a court which had jurisdiction of the parties and the subject matter are conclusively settled by a final judgment in the first case and may not again be litigated in a subsequent action between the same parties or their privies even though the subsequent suit takes a different form or is based on a different cause of action.”

There is substantial authority that the doctrine of res judicata itself should not be rigidly applied where the prior judgment or decree was the product of error of law. In 46 Am.Jur.2d, Judgments, § 416, it is said:

“There are cases stating that the doctrine precluding the relitigation of issues previously adjudicated in an action on a different cause of action, is confined to issues of fact or, at least, to mixed questions of fáct or law, and thereby excluding questions of law from the operation of the doctrine. Under this rule, the doctrine does not extend to erroneous propositions of law applied by the court in reaching its decision.”

An analogous rule is announced in Restatement of the Law of Judgments, § 70, at 318, where it is said:

“Where a question of law essential to the judgment is actually litigated and determined by a valid and final personal judgment, the determination is not conclusive between the parties in a subsequent action on a different cause of action, except where both causes of action arose out of the same subject matter or transaction; and in any event it is not conclusive if injustice would result.”

In comment f of the above quoted Restatement rule it is said at 324:

“Where injustice would result. The determination of a question of law by a judgment in an action is not conclusive between the parties in a subsequent action on a different cause of action, even though both causes of action arose out of the same subject matter or transaction, if it would be unjust to one of the parties or to third persons to apply one rule of law in subsequent actions between the same parties and to apply a different rule of law between other persons. ” (Italics supplied.)

Maryland, however, appears to have rejected any distinction between determinations of questions of fact and errors of law in the application of the doctrine of res judicata to judgments of courts of competent jurisdiction. The comprehensive force and effect of res judicata in Maryland is thus stated in DeMaio v. Lumbermens Mutual Casualty Co., 247 Md. 30, 34, 230 A. 2d 279, 281:

“If there is an identity of parties, an identity of subject matter, jurisdiction over both and a final decision on the merits, there arises the classic situation for the application of the doctrine of res judicata. Restatement, Judgments Ch. 3, Introductory Note at pp. 158-59, and § 48; Seaboard Terminals Corporation v. American Oil Co., 169 Md. 369; Horowitz v. Horowitz, 175 Md. 16; Sterling v. Local 138, Liberty Ass’n of Steam and Power Pipe Fitters and Helpers’ Ass’n, 207 Md. 132. The doctrine as stated above applies without regard to the kind of court which rendered the earlier final judgment. It has been applied to a final determination of the Circuit Court, Whittle v. Board of Zoning Appeals of Baltimore County, 211 Md. 36, the Orphans’ Court, Shultz v. Houck, 29 Md. 24, and the People’s Court, Vane v. C. Hoffberger Co., 196 Md. 450; and without regard to the form of the earlier action, Christopher v. Sisk, 133 Md. 48. A final judgment on the merits in favor of the garnishee in an attachment proceeding is conclusive as between the plaintiff and the garnishee in a subsequent action as far as the issue decided in the garnishment proceeding is concerned. 6 Am. Jur. 2d, Attachment and Garnishment § 393; 2 Shinn, Attachment and Garnishment, § 726; Henderson v. Hall (Ala.), 32 So. 840; Roman v. Montgomery Iron Works (Ala.), 47 So. 136; Regan v. First Nat. Bank of Arizona (Ariz.), 101 P. 2d 214; Johnson v. Stockham, 89 Md. 368, 376.
“In the case before us every test is met. The parties were the same, the issue was the same, the courts had jurisdiction of parties and subject matter and the judgment of the City Court was on the merits and final.
“If, as here, the court rendering the earlier judgment had jurisdiction of the parties and the subject matter, the fact that its final judgment was erroneous or irregular will not prevent that judgment from acting as a bar to a relitigation of the cause of action which was merged in the judgment. ” (Italics supplied.)

Should such an inflexible rule of law be made applicable to errors of law by administrative bodies? We think not.

We recognize, as indeed we must, that an unreversed final decision by a zoning board, passed in the exercise of its discretion upon issues of fact or upon mixed issues of law and fact are fully binding upon the parties to the cause and their privies as to all issues determined thereby. It is only when there has been a substantial change of conditions or it is shown that the decision was the product of fraud, surprise, mistake, or inadvertence, that such an administrative body may reverse its prior decision in litigation between the same parties. Whittle v. Board of Appeals, supra; Woodlawn Ass’n. v. Board, supra; Gaywood Association v. MTA, 246 Md. 93, 227 A. 2d 735.

The Court of Appeals indicated in Gaywood, supra, however, that the legal doctrine giving binding effect to decisions by zoning boards should not be fully equated with the doctrine of res judicata, saying at 100 [738-39]:

“The protestants rely on Woodlawn Area Citizens Association v. Board of County Commissioners of Prince George’s County, 241 Md. 187, 216 A. 2d 149 (1966), to support their contention that res judicata applies to debar the MTA from changing the former PSC finding of facts. In so doing, however, the protestants seem to have overlooked the fact that it was the decision of a court and not an administrative agency that found the principles of res judicata controlling in that case. This alone distinguishes that case from this one. The point is well established. See M. & C. C. of Baltimore v. Linthicum, 170 Md. 245, 183 Atl. 531 (1936); Bensel v. M. & C. C. of Baltimore, 203 Md. 506, 101 A. 2d 826 (1954); Chatham Corporation v. Beltram, 243 Md. 138, 220 A. 2d 589 (1966); Alvey v. Hedin, 243 Md. 334, 221 A. 2d 62 (1966). While the action of an administrative agency reversing itself or a predecessor agency may resemble res judicata, it is not, as the cases show, the same ar the final decision of a proceeding on its merits by a court of competent jurisdiction.”

In the subject case we are called upon to determine whether the rule giving binding effect as between the parties, to a final decision of a zoning board extends to a decision by such a body that solely is the product of an error of law.

A comprehensive discussion of a relaxation of the doctrine as applied to administrative bodies will be found in Davis, Administrative Law, § 18.03 (1958), where it is said at 566:

“The desire for repose on which res judicata rests relates primarily to findings of fact; repose on lively problems of law may even be affirmatively objectionable. A tribunal ought not to be barred from using trial-and-error methods of feeling its way into an undeveloped frontier of law and policy. Even when the principle of res judicata should be rigidly applied to findings of fact, some relaxation of its application to rulings of law may be indicated. Many factors may argue against conclusive effect of an administrative decision of a question of law — the function may be somewhat non-judicial, law, and policy may be in state of flux, substantive reasons may require that the agency’s authority to protect the public interest should remain unfettered, the administrative procedure may not have been geared to a careful consideration of the question of law, the agency may have been poorly staffed for deciding the question, or the legislative intent may have been that the agency’s decisions of law should not be binding.”

We conclude that where, as in the subject case, a condition is created whereby property similarly situated but owned by others, could be used for purposes that would be denied a prior litigant, the principle of res judicata should not apply to an erroneous determination of law by an administrative body. Any other course would approach, if it did not reach, a deprivation of constitutional dimension. In any event, unrelaxed application of the doctrine would constitute a manifest unfairness to Racine.

We are guided to our conclusion by the language used in a very recent decision of the Court of Appeals of Maryland, Criminal Injuries Compensation Board v. Joseph D. Gould, 273 Md. 486, 331 A. 2d 55 (1975), wherein it was said at 521 [76]:

“Mistaken interpretation of law, however honestly arrived at, are held not to be within the exercise of sound administrative discretion and the legislative prerogative, but to be arbitrary and illegal.”

Perpetuation of illegality by an administrative body by inflexible application of the principle of res judicata is impermissible.

Order affirmed.

Costs to be paid by appellants.

      . It will be noted that mobile home subdivisions are specifically authorized in the R-3 zone and are not in express terms excluded in C-l and C-2 zones.

      . It will be noted that each of those three dwelling definitions includes the words “a residence on a permanent foundation.”

      . It will be noted that this definition includes the words “within a building.”

      . It will be noted that this definition avoids use of the word “dwelling” and includes the words “without a permanent foundation.”

      . In its turn, the decision in Woodlawn, supra, was criticized by Professor Davis in Davis, Admin. Law Supp. § 18.12 (p. 623) as follows:
      “The Maryland court is interesting in its movement from the unsound extreme that ‘administrative action can never be res judicata’ to the opposite unsound extreme that once a zoning agency has chosen a policy it can never change it as long as the facts are unchanged.”
      Professor Davis prior to that criticism on the same page had stated his position as to application of the principles of res judicata to administrative determinations as follows:
      “The unsound idea that res judicata does not apply to administrative determinations is gradually being replaced by the sound idea that res judicata properly applies to some administrative determinations and that degrees of relaxation of res judicata are often appropriate. The Supreme Court’s explicit rejection of the notion that res judicata is inapplicable to agencies is helpful. United States v. Utah Construction & Mining Co., 384 U. S. 394, 421-22, 86 S. Ct. 1545, 1559-60, 16 L.Ed.2d 642 (1966).”


source: Caselaw Access Project

author: Orth, C. J.,

license: Public Domain

text:
    HILDA MAE MOATS et al. v. JACQUELINE SCHOCH & MARY ANN BERRY, Personal Representatives of the Estate of Lillie W. Pomphrey
    [No. 392,
    September Term, 1974]

      Decided February 13, 1975.

      The cause was argued before Orth, C. J., and Morton and Gilbert, JJ.

      Steny H. Hoyer for appellants.

      Richard J. Clark and Edward S. Digges for appellees.
   Orth, C. J.,

delivered the opinion of the Court.

The issue to be decided on this appeal is whether the Circuit Court for Charles County was correct in ordering on 21 May 1974 that a writing executed 19 November 1957 by Lillie W. Pumphrey, sometimes known as Lily W. Pumphrey, be admitted to probate as her last will and testament. We find that the court was correct and affirm its judgment.

I

The case comes to us on appeal by Hilda Mae Moats and Frances Geneva Bell (daughters) from the order issued 21 May 1974 by the Circuit Court for Charles County. It reached that court on appeal from an order issued 5 October 1973 by the Orphans’ Court for Charles County whereby the Court admitted the 1957 writing to probate as the last will and testament of Lillie and appointed Jacqueline Schoch and Mary Ann Berry (granddaughters) the personal representatives of the estate. The facts are not in dispute. On 22 May 1942 William B. Pumphrey and Lily W. Pumphrey executed a writing styled their “Joint and Several WILL.” William died 1 November 1949. Lily filed for letters of administration and offered the 1942 will for probate. It was admitted to probate by the Orphans’ Court for Charles County in June of 1950. There is indication that it was subsequently probated also in an ancillary proceeding in the District of Columbia. What property passed under the will and to whom are not reflected in the record before us.

On 19 November 1957, Lily, under the name “Lillie W. Pumphrey”, executed another writing entitled her “LAST WILL AND TESTAMENT” by which she revoked “all other Wills by me heretofore made.”

Lily W. Pumphrey died on 1 September 1973. On 6 September, granddaughters filed a “Petition for Probate” with the Register of Wills for Charles County asking that they be granted letters of administration and that the 1957 will be admitted to judicial probate. On 28 September daughters filed opposition to the appointment of granddaughters as personal representatives. Among the reasons stated were that by the joint and mutual will of 1942 and “the contractual obligations arising thereunder”, the testatrix’s property rightfully belonged to her three living children and that any will subsequently executed was “totally invalid.” They suggested that Thomas C. Carrico be appointed personal representative. The minutes of the Orphans’ Court reflect that a special session was held on 5 October to consider the petition for judicial probate and the opposition to the appointment of appellees as personal representatives. The court ruled to proceed on the petition to appoint appellees and did so. The minutes read:

“No testimony was given to prove that Mrs. Pumphrey profited from her husband’s death. She paid all his bills according to Court records and proceeded to accumulate an estate which the Court feels she could rightfully dispose of. For that reason we accept the 1957 will as her Last Will and Testament and we appoint the two legatees as personal representatives in accordance with the Maryland law [Estates & Trust Art. § 5-104 (3)].”

The court issued an order dated 5 October appointing granddaughters personal representatives of the estate and admitting the 1957 writing to probate as the will of the decedent.

On 17 October daughters notéd an appeal from the order of 5 October to the Circuit Court for Charles County. See note 1 supra. See also Pattison v. Firor, 146 Md. 243; Wright v. Nugent, Personal Representative, 23 Md. App. 337. The case was docketed in that court as Law No. 7604.

On 15 November daughters moved to consolidate the case with a case filed in that court entitled “Hilda Mae Moats, et al. v. The Estate of Lily W. Pumphrey, deceased, et ah”, Equity No. 3343. The motion averred that Equity No. 3343 was “concerned with enforcement of certain provisions of the said 1942 will by means of equitable relief of specific performance and also involves construction of the terms of said will, as well as requests for other equitable relief, all pertaining to the issues in controversy from the handling of the Estate of Lily W. Pumphrey, deceased.” The motion also prayed that the hearing on Law No. 7604 be continued until Equity No. 3343 came on for trial. The motion was opposed by granddaughters and denied by order of the court issued 7 December. On 7 December the appeal from the Orphans’ Court was heard de novo and on 21 May 1974 the court gave judgment according to its determination of the equity of the matter. Courts Art. § 12-502 (a). It ordered that “the paper writing of Lily W. Pumphrey dated the 19th day of November, 1957, be and the same is hereby admitted to probate as the Last Will and Testament of Lily W. Pumphrey.” On 10 June daughters noted an appeal therefrom to this Court.

II

Daughters would have us decide the issue of the propriety of the order of 21 May 1974 in the frame of reference of this question which they present:

“Is a Joint and Mutual Will, contractual in nature, irrevocable and therefore entitled to probate to the exclusion of later purported testamentary documents, where said Will was not revoked prior to the death of one of the parties thereto and the survivor caused said Will to be probated as the Will of the deceased party and accepted benefits thereunder?”

We accept on the record before us that the will of 1942 was not revoked prior to the death of William B. Pumphrey, one of the parties thereto, and that the surviving party, Lily W. Pumphrey, caused the will to be probated. We assume for the purpose of decision, but expressly do not decide, that it was a joint and mutual will, contractual in nature, and that Lily W. Pumphrey accepted benefits thereunder. In other words, we are assuming arguendo, for the determination of this appeal only, that the will of 1942 was a joint, mutual, reciprocal will binding William and Lily to dispose of their property in the manner therein set out, each in consideration of the other, and that there was a contract between them that the will would remain in effect. Even on these assumptions, which accept the premises in the question as presented by daughters, the answer to the question is no, the will of 1942 is not irrevocable. The authorities are not entirely uniform on the point, but Annot. 169 A.L.R. 9, 24, states a rule which it characterizes as in accordance with sound theory:

“[0]ne of two testators who have made wills which are reciprocal in the circumstance that each will makes provision for the testator of the other will may revoke his will even after the death of the other testator, notwithstanding the wills were drawn and executed pursuant to a contract.” (footnotes omitted)

The annotation explains the effect of such revocation, at 24-25:

“This does not mean that the obligation of the contract is escaped by revoking the will. It means that on the issue of will or no will with which the probate court is concerned a will is to be regarded as revocable notwithstanding it was executed pursuant to contract. The question whether a revocation constitutes a breach of contract for which relief may be had in law or in equity is of no concern, strictly speaking, to a probate court. Therefore a later will which revokes a prior will which was jointly executed, or one of two separate wills containing reciprocal bequests, is admissible to probate, though the testator violated his contract by executing it; and a jointly executed will or one of two separate wills which are reciprocal in their provisions is not admissible to probate as the will of one of the testators who revoked it, notwithstanding the revocation was a breach of contract. Concisely stated, it is the contract and not the joint will which is irrevocable.” (footnotes omitted)

Vaughn, supra, note 6 hereof, reached the same conclusion. After rejecting the theory of irrevocability, he said, at 170:

“The last theory, and, in the writer’s opinion, the only tenable one at this time is that of contract. It can be stated as follows: The joint and mutual will is based on a contract between the parties. While the will itself is wholly revocable at any time, the underlying contract will be enforced. * * * Shawver v. Parks [239 S.W.2d 188] clears up many questions about this creature — partly will and partly contract. According to it, the true rule is that the will is a testamentary instrument, ambulatory and revocable, and it cannot be made irrevocable. Even though the testamentary portions are revocable, the contract portions are irrevocable. Therefore, the underlying compact is enforceable — or in a loose sense irrevocable — notwithstanding the revocability of the will.”

We believe this to be the majority view in other jurisdictions. See Tutunjian, et al. v. Vetzigian, et al., 299 N. Y. 315, 87 N.E.2d 275 (1949). It is also in accord with the decisions of this State.

It was early recognized in this jurisdiction that “Wills are ambulatory; they can operate only after the death of the party; and are liable to be changed at any time.” Mundorff v. Kilbourn, 4 Md. 459, 464. In Ottaviano v. Lorenzo, 169 Md. 51, 63, the Court said: “A testamentary paper is in nature ambulatory until the death of the maker, and, so, is generally revocable at pleasure, and becomes operative only at its executant’s death.” See Cowman v. Classen, 156 Md. 428, 442; Alexander v. Worthington, 5 Md. 471, 480; 2 Blackstone, Commentaries *502. In Wilks v. Burns, 60 Md. 64, the Court of Appeals had the question, at 68 whether a person could “fetter and clog himself by the terms of a contract in the execution of the power given him by his father’s will”, the donor of the power intending that it should be executed by the will of the donee. It said, at 68-70:

“The word ‘will’ has a technical meaning, and implies an instrument executed in conformity with prescribed formalities, but subject to alteration or cancellation at the volition of the maker. It is his will, because his own mind, untrammeled and free, has determined to give the disposition of his property a certain designated direction. It does not take effect until his mental and physical powers have been destroyed by disease and dissolution, and while ever he has a disposing mind it is under his control. This control over property until the last moment of life, is said by some elementary writers, to be derived from the sanction of the sovereign power; while others declare it to be a natural right existing ‘prior to all positive institutions and civilized refinements; and one of the old English jurists, in his quaint phraseology, says that ‘Last Wills and Testaments, as to their Use, End and Substance, (though not as to the Solemnities thereof,) were known in the world long before Time had one gray Hair; indeed not long after the World came out of Nothing.’ Godolphin’s Orphans’ Legacy, I.
The right to make a testamentary disposition of property being of such ancient origin, and existing coevally with the right to hold it, must have been exercised anterior to the ages when the knowledge of writing was acquired. Originally such disposition must have been by oral declarations, subsequently verified by the testimony of witnesses. As the intention of the testator might be influenced and changed by a mutation of circumstances, so could he make another declaration indicating the effect of the influences thus operating on his mind. This he could continue to do until the last moments of his existence. He could revoke his declared intention and alter his will, until the indication of his wishes had been rendered impossible by disease and dissolution. Although the policy of the law has long since prescribed certain solemnities, tending to produce more certainty in the authentication of last wills and testaments, there has never been any interference with the right of revocation. The untrammeled enjoyment of this right has never been inhibited by the sovereign power in the exercise of legislative control; and the testator’s own declaration, in the body of the instrument, that it is not to be revoked, has no more effect than the usual formal phraseology that it is his last will and testament, which, literally interpreted, is tantamount to a solemn announcement that no other will is to be executed by him at any future period. Notwithstanding this apparent intention the testator may, by alteration or cancellation, at some subsequent period, give an entirely different direction to the disposition of his property; the instrument being inchoate with respect to its operation. It is merely the evidence of the incipient intention of the testator, reduced to writing, and authenticated by prescribed formalities; to take effect after his death but exclusively under his control during the whole period of his life. If this incipient intention in relation to the disposition of his property, should, at any subsequent period, undergo a change, having the exclusive control of the written evidence of which was once his intention, he can obliterate and destroy such evidence.”

In O’Hara v. O’Hara, 185 Md. 321, the Court, again holding that the donee of a general power of appointment by will has no right to enter into a contract that fetters such power, summarized, at 325, what it said in Wilks:

“As this Court stated in Wilks v. Burns, 60 Md. 64, 69, the declaration' of a testator that his will shall be ‘irrevocable’ has no more effect than a declaration that his will is his ‘last will and testament.’ These words literally mean that he does not intend to execute another will. And yet it is beyond question that he has the legal right to make a different disposition of his property at any time. A will is evidence of the testator’s incipient intention, authenticated in accordance with the requirements of the law, to take effect after his death, but remaining under his control during the entire period of his life. The testator can revoke his declared intention and alter his will as long as he possesses testamentary capacity. The untrammeled right to revoke a will has never been abridged by the State.”

It is clear, therefore, that there is no restriction on the right of a person with the capacity to make a will to revoke it.

It is also clear that a will may be drawn and executed pursuant to a contract, the meaning of which is that the will shall not be revoked. The Court of Appeals said in Wilks v. Burns, supra, at 70:

“There can be no doubt of the legal right of one, having the exclusive ownership of property, to enter into a contract to execute a will in favor of the other contracting party; but such transaction cannot be properly termed a testamentary disposition of property; two or more contracting parties having concurred and bound themselves by reciprocal obligations, founded on good and valuable considerations. The testamentary document is nothing more than a part of the contract, which has been determined by mutual stipulations, controlling the mind of the testator.”

The Court, at 70-71, explained what redress could be had if a will so executed were revoked:

“If a will executed under these circumstances, is subsequently cancelled, the aid of a court of equity can be invoked. But how does equity intervene? By an inquiry into the terms of the contract, which must be established by the adduction of proper and adequate evidence. If the proof fails, there can be no application of the remedy, and the cancelled will remains without vitality. If the proof is sufficient, the court decrees a specific performance of the contract; the will being examined merely to ascertain the terms of such contract, of which it has become a part. The mode of enforcing a specific performance is by the appointment of a trustee to execute a deed of conveyance of the estate.”

In White v. Winchester, 124 Md. 518, the holding was that a valid contract, based upon sufficient consideration, that a will of one of the parties will not be changed, may be specifically enforced, as well as a contract to make a will according to agreement. The Court found it obvious in Hughes v. McDaniel, 202 Md. 626, 635 “that when parties enter into a contract by which one of them agrees to execute a will in favor of the other for sufficient consideration, and thus the parties bind themselves by reciprocal obligations, the will made in pursuance of the contract is an integral part of the contract.” Thus, it concluded, if the agreement for the execution of the will were void, the will must also be declared void. In Scott v. Marden, 153 Md. 1, writings testamentary in form and ambulatory in effect, by which the decedent undertook to bequeath to another, in consideration of services rendered by the other, certain property, were held to be enforceable as contracts in a court of equity as against persons to whom the decedent subsequently conveyed the property. Such a contract to execute a will, of which the testamentary document so executed becomes a part, “is enforceable against heirs, devisees or representatives just as though the deceased obligor were a party to the suit, by treating the heirs as trustees and compelling them to convey the property in accordance with the terms of the contract.” Wilson v. Safe Dep. & Tr. Co., 183 Md. 245, 252. In accord is Mannix v. Baumgardner, 184 Md. 600. See Hamilton v. Thirston, 93 Md. 213.

We think it patent that Maryland follows the great weight of modern authority that “an instrument is not to be denied probate as a will for the reasons that it was executed by two or more persons purporting to sign as testators, contains bequests which are reciprocal, and was executed pursuant to a contract, provided the instrument is not dependent upon the death of the survivor for effectiveness as the will of the first to die, but can be admitted to probate successively upon the death of each testator as his separate will.” Annot., 169 A.L.R. 14-15. Such a will, however, may be revoked in a manner provided by Estates & Trusts Art. § 4-105, and a subsequent will, validly executed, and which is the last will of the testator, shall be admitted to probate. But, the contract upon which the prior will was executed, upon proof of its validity, may be specifically enforced in equity, or damages recovered upon it at law. See P. Sykes, Maryland Probate Law and Practice, § 12 (1956).

We hold that the Circuit Court for Charles County was correct in ordering that the 1957 will of Lillie W. Pumphrey be admitted to probate.

Ill

Daughters contend that regardless of the weight of authority elsewhere, the law of this State is that found in Dufour v. Pereira, 1 Dick. 419, 21 Eng. Reports 332 (1769). They suggest that it was part of the common law of England to which the inhabitants of Maryland are constitutionally entitled. Art. 5, Declaration of Rights, Constitution of Maryland. In Dufour, a husband and wife made a mutual will. The husband died, the wife proved his will, and afterwards made another will. The question was whether it was in the power of the wife to revoke the mutual will. Lord Camden found that the mutual will was a contract between the parties, which could not be rescinded but by the consent of both. “The first that dies carries his part of the contract into execution. Will the Court afterwards permit the other to break the contract? Certainly not.” 1 Dick, at 421. He declared that the wife, “having proved the mutual will, after her husband’s death; and having possessed all his personal estate, and enjoyed the interest thereof during his life; hath by those acts bound her assets to make good all her bequests in the said mutual will; and therefore let the necessary accounts be taken.” Id.

Assuming that the holding in Dufour was part of the common law of England to which the inhabitants of Maryland were entitled in 1776, our holding is not changed. First we note that Dufour was an action in chancery. As such it is not in real conflict with the law of this State. We have seen that in Maryland a mutual will may be enforced as a contract in equity and this is precisely the effect of Dufour, that the wife could not break the contract, the mutual will being binding. In this context, loosely stated, the mutual will may be said to be irrevocable, although it is actually the underlying compact which is enforceable. Concisely stated, of course, it is the contract and not the mutual will which is irrevocable.

In any event, we observe that the common law is not static but adapts itself to changing conditions and increasing knowledge. It may be changed by judicial decision, Latz v. Latz, 10 Md. App. 720, and by legislative enactment, In re Davis, 17 Md. App. 98. See Jackson v. Jackson, 15 Md. App. 615. Therefore, if the present law of Maryland is deemed to be not in accord with Dufour’s reflection of the old common law, Dufour is not now controlling.

IV

All that we have been called upon to do on this appeal, and all that we have done, is to determine the propriety of the order of the Circuit Court for Charles County that the 1957 will of Lillie W. Pumphrey is to be admitted to probate rather than her 1942 will. Any other questions which must be resolved to enable the administration of the estate to proceed were not before us. Some, as for example, whether the 1942 will was a “mutual” will, that is one executed pursuant to an agreement between Lillie and her husband, and whether it is specifically enforceable as a contract, are determinable in the pending equity action below. We reiterate that we have decided only that there was no error in admitting the 1957 will to probate.

Judgment affirmed; appellants to pay costs.

      . The Court of Special Appeals of Maryland has exclusive appellate jurisdiction over any appeal from an appealable judgment in any case over which an orphans’ court has original jurisdiction. Courts Art. § 12-308 (a) (15). We observed in Jennings v. Jennings, 20 Md. App. 369, n. 4 at 371, cert. den.:

      “Under the present status of the law, except for Montgomery County, there may be an initial appeal from a final order of an orphans’ court either to the Court of Special Appeals, Courts Art. § 12-501, or to the circuit court for the county (or to the Superior Court of Baltimore City), Courts Art. § 12-502(a). If a party first appeals to the circuit court (or in Baltimore City to the Superior Court of Baltimore City), under § 12-502(a), a further appeal by a party from the final order of that court, acting in an appellate capacity, is authorized to the Court of Special Appeals under § 12-301. This was expressly set out in the former law. Code, Art. 5, § 9, authorized appeals from a final judgment of an orphans’ court to the Court of Appeals. Code, Art. 5, § 5 c (b) (15) gave the Court of Special Appeals exclusive initial appellate jurisdiction in any case over which an orphans’ court has original jurisdiction. Code, Art. 5, § 25, provided that, except in Montgomery County, instead of a direct appeal to the Court of Appeals pursuant to § 9, a party could appeal to the circuit court for a county or the Superior Court of Baltimore City, where the appeal shall be heard de novo. Section 25 continued: ‘From the final judgment or determination of said circuit court or superior court there shall be a further right of appeal to the Court of Appeals pursuant to the provisions of § 1 of this article.’ Section 1, as amended, provided for appeal to the Court of Appeals, unless the suitor action or prosecution is subject to the appellate jurisdiction of the Court of Special Appeals, in which event any party may appeal to the Court of Special Appeals from such judgment or determination (except as to appeals heard by ‘a court of law’ from a judgment of the District Court).
      The code revisions which now appear as Courts Art. §§ 12-501 and 12-502 (a) made only stylistic changes. Although the express provision for further right of appeal to the Court of Special Appeals does not appear in the statutes as revised, the substance of the former law was not intended to be changed. The revisor’s note to Courts Art. § 12-502 (a) says: ‘This subsection is the substance of Article 5, § 25, giving effect to recent legislation regarding appellate jurisdiction.’ This intention is effectuated by the ‘appeal from final judgment’ language of § 12-301, combined with the fact that § 12-302 does not except from § 12-301 the type of case here under consideration.”

      . The will was couched in terms of the two parties acting jointly — “We .. . hereby make, publish and declare this to be our Joint and Several Last Will and Testament. . . “After the payment of all our just debts and funeral expenses and costs of administration .. “We give and bequeath . . . “We jointly and severally and individually bequeath and devise, after the death of both of us, the survivor having had a life interest therein....”; “We nominate, constitute and appoint our daughters, Frances Geneva Pumphrey, and Lillie Belle Pumphrey, executors of this our Joint and Several Last Will and Testament.” There were separate attestation clauses. In one, two witnesses attested that William signed, sealed, published and declared in writing as his Last Will and Testament in their presence and in the presence of Lily, and that they subscribed their names as witnesses at William’s request, in his presence and in the presence of each other. In the other, the same two witnesses attested that Lily signed, sealed, published and declared the writing as her Last Will and Testament in their presence and in the presence of William and that they subscribed their names as witnesses at Lily’s request, in her presence and in the presence of each other.
      The legatees and devisees under the will were three daughters of William and Lily — Frances Geneva Pumphrey, now Bell; Lillie Belle Pumphrey, later Dries, now Bastían; Hilda Mae Pumphrey, later Sanford, now Moats.
      Frances Geneva Bell and Hilda Mae Moats are parties to the appeal before us. Lillie Belle Bastían moved this Court on 22 November 1974 to permit her to intervene as a party to the appeal. We denied the motion 12 December. See Maryland Rule 1012 b.

      . The 1957 will gave “the sum of One Dollar” to each of the testatrix’s three daughters. The rest and residue of her estate was bequeathed and devised to two of her grandchildren, Jacqueline Dries (now Schoch) and Mary Ann Dries (now Berry), share and share alike, absolutely. There were provisions for the sale of certain personal property, the proceeds to be delivered to the two grandchildren if they were of age, otherwise, to be deposited in a bank until they obtained legal age. She provided for her burial with meticulosity, to the point of designating by name two hymns “to be played on a pipe organ in the funeral home” and directing that one Gus Keys dig her grave for which he was to be paid “the sum of $25.00 for his labor.” She appointed Rudolf A. Carrico to be the Executor and excused him from giving bond.

      . The petitioners claimed to be entitled to letters because the “Executor named in the will is deceased and they are the residuary legatees.” The petition estimated the value of the estate to be $100,000.00 and the debts to be $25,000.00. They listed as “all persons interested in the estate” the three daughters of the testatrix and themselves.

      . When the case came before us on appeal, daughters moved to have further appellate proceedings stayed pending the outcome of Equity 3343 below. Upon hearing we denied the motion by order of 9 September 1974.

      . The courts have not been discriminate in defining the terms “joint”, “mutual”, and “reciprocal” wills. We think the best definitions are those found in Vaughn, “The Joint and Mutual Will”, 16 Bay. L.R. 167 (1964):
      “A joint will is a single testamentary instrument which contains the wills of two or more persons, is executed jointly by them, and disposes of property owned jointly, in common, or severally by them. A mutual will is one executed pursuant to an agreement between two or móre persons to dispose of their property in a particular manner, each in consideration of the other. If the testators name each other as beneficiaries, the wills are reciprocal. Two or more wills may be mutual without being joint. A joint and mutual will must be the will of two or more persons contained in a single testamentary instrument, jointly executed by them pursuant to an agreement to dispose of their respective estates to each other or to third parties. Although the initial execution of the will may categorize it as joint and mutual; nevertheless, it cannot be given effect as such while one party survives, but, as to him, it will be given effect as his separate will.” (footnotes omitted)

        See Annot., 169 A.L.R. 9, 12-14 (1947); G. Thompson, Wills, § 34 (3rd ed. 1947); 57 Am. Jur. Wills, § 681.

      . How a will may be revoked is circumscribed by legislative enactment. Estates & Trusts Art. § 4-105. The section formerly appeared as Code, Art. 93, § 4-105. Changes were made only in style and language. Art. 93, § 4-105 adopted, without change of substance, former § 351 of Art. 93. Estates & Trusts Art. § 4-105 declares that “A will, or any part of it, may not be revoked in a manner other than as provided in this section.” See Syfer v. Dolby, 182 Md. 139; Hunter v. Baker, 154 Md. 307. Subsection (a) includes as a manner of revocation: “By provision in a subsequent, validly executed will which (1) revokes any prior will or part of it.. . expressly .. ..” As we have indicated, the 1957 will executed by Lillie W. Pumphrey expressly revoked “all other Wills by me heretofore made.”

      . We observe that Sykes cites Dufour as authority for his statement in § 12 of his Maryland Probate Law and Practice that “If in violation of the ‘agreement’ so made [by a mutual will] one of the parties to the joint or mutual wills executes a new will the latter is recognized as his last testament, but the courts will require the executor and the beneficiaries to perform the contract of their decedent, on the theory of a resulting trust in favor of the beneficiaries of the joint or mutual will.”


author: Powers, J.,

text:
    LEWIS SALLIE a/k/a Louis Sallies v. STATE OF MARYLAND
    [No. 175,
    September Term, 1974.]

      Decided February 14, 1975.

    The cause was argued before Orth, C. J., and Powers and Moore, JJ.

      Victor J. D’Avella, Assigned Public Defender, with whom was Henry C. Engel, Assigned Public Defender, on the brief, for appellant.

      Alexander L. Cummings, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Edwin H. W. Harlan, Jr., State’s Attorney for Harford County, and Edward Lilly, Assistant State’s Attorney for Harford County, on the brief, for appellee.
   Powers, J.,

delivered the opinion of the Court.

The dwelling house of Mr. and Mrs. Eugene Monger, in Aberdeen, Harford County, was burglarized in the nighttime on 15 August 1973. A sum of money and a wallet, valued at less than $100, were stolen.

Louis Sallie, the appellant here, was indicted for the crimes. He was tried before a jury in the Circuit Court for Harford County, and was convicted of burglary and petty larceny. After sentences were imposed, he appealed.

In this Court he contends first that the trial judge erred in denying his motion to suppress any evidence identifying him as the burglar because a pretrial viewing of photographs by Mr. Monger was so impermissibly suggestive that it tainted any possible identification in court. He contends further that the judge erred in denying his motion for judgment of acquittal, because the evidence was not sufficient to permit the jury to find that he was the criminal agent.

Ashe concludes in his brief:

“The Appellant would concede that the State had proven all the necessary elements of the crime of burglary, but they failed in establishing that necessary relationship between the offense committed and the person who committed that offense.”

Around 10:00 o’clock on the evening of 15 August 1973 the Mongers were visiting with neighbors across the street. They had left their two small children at home, asleep upstairs, and had left their front door closed, but unlocked. Mr. Monger intended to return to the house from time to time to check on the children. Another neighbor called and told the Mongers’ host that two men had just entered the Mongers’ house through the front door. Mr. and Mrs. Monger and others ran across the street. Mr. Monger found that his front door was locked, and he could not get in. He lifted the mail slot, and through the opening he could see most of the living room, a hall, and part of the kitchen. Lights were burning. He saw two men. One was going from the living room to the kitchen. Mr. Monger had a side view of him, and observed his clothing. He then saw the second man, backing out of a corner of the living room. The man turned, and ran into the kitchen. Mr. Monger observed his clothing, and also saw what he described as a diamond shaped scar on the man’s right cheek.

Both men left the house through the glass sliding doors which opened to the rear from the kitchen. Mr. Monger ran around the end of the building, and saw the two men running. Someone called the police, who arrived within three or four minutes. Officer Buck attempted to follow the trail of the fugitives with a police dog, but the dog lost the trail when it crossed a paved highway. Mr. Monger described both men to Officer Buck, in considerable detail as to clothing, and mentioned the diamond shaped scar or mark on the right cheek of one of the men.

Aaron Stanley, a 12 year old boy who was riding his bicycle up and down the street, told Officer Buck that he had seen two young men, both of whom he knew, at the curb in front of the house next to Mongers’, and when he next rode down the street a very short time later, the police wagon was coming. He said that the young men he saw were Vivan Dennis and “Fuzzy”. He described the clothing each was 'wearing. Officer Buck knew both of the young men. He knew that “Fuzzy” was a commonly used nickname for Louis Sallie. He had seen Sallie and Dennis together a half hour before the burglary, a few blocks away, dressed as described by Mr. Monger and by Aaron Stanley.

Appellant’s motion to suppress identification testimony was heard by the trial judge after the jury was selected and sworn, but out of the presence of the jury. Appellant offered evidence at that hearing through Detective Gruber, Officer Buck, and Mr. Monger. The day after the burglary, Officer Buck asked Detective Gruber to make up a group of photographs, including Sallie and Dennis, and show them to Mr. Monger. The group consisted of 12 black and white “mug shots” of young Negro males. Each subject is shown full face, from the top of the head to approximately the breast line. We have examined all of the photographs carefully, and we can find nothing other than face and hair which would distinguish one from the other. It appears that three or four of the 12 were wearing a mustache. Sallie was not. None had a beard. Five or six, including Sallie, wore what is called a bush, or modified bush, hair style. There are easily distinguishable variations among the 12 photographs in the skin shade, eyes, foreheads, lips, and general facial contours of the subjects. On Sallie’s photograph can be seen a diamond shaped mark on his right cheek.

We need not relate the details of the procedure by which Detective Gruber showed the book of 12 photographs to Mr. Monger the next evening, except to say that there was not even a hint of anything suggestive about it. Mr. Monger readily identified Sallie. He did not identify Dennis. He noted the mark on Sallie’s cheek as part of the reason for identifying him. Appellant relies heavily upon that mark, as well as upon differences in age, height, and weight of the subjects in contending that the very selection of the photographs making up the group was impermissibly suggestive.

Whatever differences a viewer of these photographs may discern in the age, height, and weight of the subjects are, to say the least, not significant, and are as likely as not to be incorrect. The issue of suggestiveness narrows down to the diamond shaped mark which could be seen on Sallie’s face in his photograph.

That mark was indeed an identifying characteristic. Observation of identifying characteristics is the core of any identification process. Differences among individuals are the very means by which one may be distinguished from all others. Similarities can lead to confusion, and even to mistake. The not-unheard-of trick of planting a look-alike in the courtroom surely is not employed to aid in the search for truth, but to thwart that search.

Appellant argues that his mark is unique. Every individual is unique. The mouth, the lips, the teeth, the chin, the cheeks, the nose, the eyes, the forehead, the ears, the hair, or any combination of two or more of those and other features, make every individual unique. They make him different from all others. They are the basis upon which any person is visually distinguished from other persons. The more subtle the distinctions, the more difficult the identification, and the greater the potential for error. If the burglar in this case had not had such a distinctive mark, then Sallie’s mark would have cleared him forthwith as a suspect. The fact that the burglar had the mark, and that Sallie had it, and that the mark is unique, made his identification inevitable indeed, but also made it more rather than less reliable.

In 1 Wharton’s Criminal Evidence § 188 (Torcia 13th ed. 1972) the author says:

“The identification of the accused by the witness may be based on a recognition of his physical characteristics and appearance, or by some mark on, or peculiarity of, the accused.”

We do not find suggestive the photographic viewing by Mr. Monger, nor do we see in it any deviation from the principles expressed in Simmons v. United States, 390 U. S. 377, 88 S. Ct. 967,19 L.Ed.2d 1247 (1968), where the Supreme Court said, at 384:

“* * * we hold that each case must be considered on its own facts, and that convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.”

In Smith and Samuels v. State, 6 Md. App. 59, 250 A. 2d 285, cert denied, 254 Md. 720, 255 Md. 743 (1969), cert, denied, 397 U. S. 1057, 90 S. Ct. 1402, 25 L.Ed.2d 674 (1970), Judge Orth analyzed the law relating to photographic identifications, and outlined the procedure to be followed when they are questioned. Among the many other cases in which we have considered allegedly impermissible suggestiveness in a photographic viewing are Jordan v. State, 19 Md. App. 283, 310 A. 2d 575 (1973); Cousins v. State, 18 Md. App. 552, 308 A. 2d 692, cert, denied, 270 Md. 738 (1973); King v. State, 18 Md. App. 266, 306 A. 2d 258 (1973); Dorsey v. State, 9 Md. App. 80, 262 A. 2d 591, cert, denied, 258 Md. 727 (1970); and Nance v. State, 7 Md. App. 433, 256 A. 2d 377 (1969), cert, denied, 256 Md. 747, cert, denied, 398 U. S. 954, 90 S. Ct. 1881, 26 L.Ed.2d 296 (1970). The Nance case is cited in Annot., “Photographic Identification — Suggestiveness”, 39 A.L.R.3d 1000 (1971), at 1011 as stating:

“* * * that the rule to be followed with regard to photographic identifications is that if it is shown that a pretrial identification by photograph, on the totality of the circumstances surrounding it, was so unduly suggestive as to give rise to a very substantial likelihood of irreparable misidentification, the admission of evidence of such identification or a subsequent in-court identification is determined pursuant to the exclusionary rules * * *.”

We hold that there was nothing about the photographic viewing by Mr. Monger that would reduce the trustworthiness of a subsequent courtroom identification by him. The trial judge correctly denied the motion to suppress.

Appellant next argues that even though the judge’s ruling permitted a courtroom identification by Mr. Monger, the identification made by the witness in court was not sufficient to stand up against a motion for judgment of acquittal. He refers to that phase of Mr. Monger’s testimony before the jury which he says constituted the identification. The transcript reads:

“Q [By Mr. Lilly, Assistant State’s Attorney] Now, this second man that you saw, do you remember what he was wearing?
A He was wearing a sweat shirt with green plaid pants.
Q Do you know what color the sweat shirt was?
A Gray.
Q Now, was there anything else unusual about this man that you saw, this second man? Could you describe him for the jury?
A He was about five foot-seven or five foot-eight, kind of hard to tell, through the mail slot, how tall he actually was. And when he turned and started to run away I noticed that on his right cheek he had a diamond-shaped scar.
Q On his —
A Or a diamond shape on his right cheek.
Q A diamond-shape scar, did you say?
A Right.
Q Do you remember anything else about this man? What kind of hair did he have, do you remember?
A He had a — it wasn’t really a big Afro, it was Afro style but it was close, it was not clipped close but it was packed in close.
Q And do you know what race this man was?
A He was a black male.
Q What about the first man, what race was he?
A He was black also.
Q Now, at this time, I would ask you to look around the courtroom and see if you can identify the second man who you saw. Is he in fact present in the courtroom now?
MR. D’AVELLA [Defense counsel]: I am going to have to object * * *
THE COURT: Overruled. You may answer.
Q (MR. LILLY) You may answer the question.
A He is sitting there in the blue shirt.
Q I see four men in blue shirts there in the courtroom.
A He is sitting with both hands stuck around the side of his face.
Q Would you walk over and indicate?
A This man here.
Q The man seated next to the lady with the white blouse?
A Right.”

Appellant refers also to the testimony of Aaron Stanley, who made an identification in court which appellant likewise says was not sufficient to enable the jury to find the necessary criminal agency. The testimony of Stanley at that point was:

“Q [By Mr. Lilly] Aaron, I will ask you again, what was the identity of those two people that you saw, one standing up and one sitting down?
Q Now, do you know their names, the names of these two boys or men?
A Uh-huh.
Q What are their names?
A Vivan and Fuzzy.
Q Now, this Fuzzy that you saw sitting there, was he standing or sitting?
A Looked — if I could picture right, it looked like he was sitting.
Q He was sitting and Vivan was standing. Do you know Vivan’s last name?
A (Witness nodding in the affirmative.)
Q What is his last name?
A Dennis.
Q Right. Now, this Fuzzy, that you said you saw there with Vivan Dennis, is he present in the courtroom today? Do you see him?
A Uh-huh.
Q Where is he?
A Right here.
Q In the blue coat and the green shirt?
A (Witness nodding in the affirmative.)
Q Now, what did you do when you saw the two men?
A I just rode around in a circle on the bike and I left.
Q Okay, Aaron, did there come a time when you returned back to where you saw Vivan and Fuzzy?
A Yes.
Q How long were you gone before you came back?
A About less than a minute.
Q Less than a minute. And what if anything happened when you got back?
What was happening when you got back to that area?
A Well, Mr. Buck was taking the dog out of the car.
Q Who is Mr. Buck?
A The officer.”

During cross examination of the witness Stanley by defense counsel the transcript shows:

“Q Now, I think you said, when Mr. Lilly asked you a question, that you rode by and you saw Fuzzy on the sidewalk, right?
A Yes, I seen him on the sidewalk and I just turned around in a circle.
Q And then another minute I think you had said another minute later he was gone, and the policeman was there with the dog, is that right?
A No, when I was going home, when I was about ready to stop, my sister seen a car, come up the road. She thought it was an ambulance but it was a wagon and we just followed it.
Q What did you say — to Mr. Lilly about a minute later and then the police were theie? What do you mean by that?
A As soon as I left there, about a minute later, there was — they were coming up the road.
Q How much time was it from the time you first saw Fuzzy until you saw the policeman? Was it right away or a long time go by?
A It was about less than a minute.”

And further, in recross:

“Q Aaron, how do you know Fuzzy?
A Because usually he be around the way, hearing a lot of people saying the name.
Q How do you know it was him?
A Him?
Q Uh-huh.

A Because when the car came by then we seen both of them walking over to the apartments.

Q What do you mean when you saw the car come by?
A A Mustang.
Q You said we, who is we?
A Me, my brother, and my sister.
Q Uh-huh. And do you know somebody by the name of King Rat?
A (Witness nodding in the negative.)
Q Do you know — you know Vivan Dennis though?
A (Witness nodding in the affirmative.)
Q And the only way you know Louis is because you hear his name?
A I be close by.
Q Do you live near Louis?
A Witness nodding in the negative.
Q You don’t live near him?
A (Witness nodding in the negative.)
Q And how do you know him then?
A Because then when I would be riding by I hear people say his name and that is how I know his name.”

Officer Michael C. Buck, of the Aberdeen Police, was a witness for the State. He related that he had responded immediately to the call, and talked to Mr. Monger. The officer testified:

“A He advised me that he immediately went to his residence, found the front door locked. He looked in the mail slot, which is cut in the door, and observed two subjects inside his residence. He gave me a description of these two subjects. Both of them were black males. One had a sweat shirt on, green plaid, green and white plaid pants, had a diamond tattooed on his cheek. Another subject wearing red pants, white shirt, white belt and carrying a white hat.
Q (MR. LILLY) All right. This description that you received, of the clothing and the diamond tattoo on the face of one of the individuals, did this have any particular significance to you?
A I had observed two subjects approximately one-half hour before this incident on South Philadelphia Boulevard or U.S. Route 40.
Q And did you recognize these individuals that you observed?
A Yes, sir.
Q Who were they?
A Louis Sallie and Vivan Dennis.
Q Now, what was this scene where you saw these two individuals?
A South Philadelphia Boulevard just by Dunkin Donut, Platter Street intersects.
Q How far would that be from the Monger home?
A My judgment would be six to seven blocks, sir.
Q What were Vivan Dennis and Louis Sallie doing at that time?
A Talking together on the street.
Q Do you remember what they were wearing at that time?
A Yes, sir. Louis Sallie had a gray sweat shirt on, a green and white plaid pants. Vivan Dennis had a pair of bright red pants on, white shirt, white belt and was wearing a white open top cap.
Q Was anyone else with Vivan Dennis and Louis Sallie when you saw them there?
A No, sir.”

One witness was called by the defense. She was Carlotta Sallie. She said that Louis Sallie was her brother. She said that on the evening of 15 August 1973 her brother was at home about ' 9:00 o’clock, that he watched a television program with her from 10:30 to 11:30, and that he did not go out again after that. During her testimony she referred to her brother sometimes as Louis and more frequently as Fuzzy. She said he was also known as Fuzzy Louis.

In Rife v. State, 9 Md. App. 658, 267 A. 2d 326 (1970), we considered a courtroom identification and expressed the view that it was insufficient. The net effect of the testimony in Rife by the only witness who was asked in court to make an identification of a perpetrator of a robbery was similar in effect to the testimony of Mr. Monger which we have quoted. After disposing of the case on the basis of an unreasonable seizure of evidence, we said in Rife at 664:

“Despite our holding we think it advisable to discuss briefly the other two contentions made by appellant. Urging that the evidence was not sufficient to sustain the conviction, appellant centers on the proof of his criminal agency, claiming that none of the State’s witnesses identified him as one of the robbers. We consider this contention so we may point out that what is apparent to those in attendance at the trial, may not be revealed by the record.”

We then quoted from the transcript of the trial in that case. It showed that the witness walked around the courtroom, walked up to one person, and said, apparently pointing, “This fellow here”. We alluded to several inferences that might be arguable, but said, at 666:

“But to leave the identification of a defendant as the criminal agent to these types of speculations and inferences can hardly be said to be a proper manner for the State to fulfill its burden of proving an accused guilty beyond a reasonable doubt. On the record all that is directly shown is that the witness identified a person in the courtroom. All the State had to do was to state for the record, if that was the fact, that the person identified was the defendant.”

We indulged in that dictum in Rife for the declared purpose of emphasizing “that what is apparent to those in attendance at the trial, may not be revealed by the record.” Not all evidence which reaches the eyes and ears of a judge and jury is, or can be, recreated for appellate review. What might have been clear and certain to the trier of facts, and to all persons involved in a trial, may appear in a transcript on appeal to depend upon speculation and inference. But speculation may vanish, and inference may be supported, if recorded words describe what has been presented as physical evidence before the very eyes of the jury and the judge.

For these reasons we expressed in Rife the admonition that when a witness makes an identification in court of a person on trial by pointing, touching, describing, or otherwise indicating the person in a manner clear to observers, the prosecutor sb juld state for the record that the person identified is the defendant.

It may be said that a prosecutor’s saying what he perceives to be a fact does not make it so, and is not evidence. Yet such a “statement for the record” is accepted universally for the very realistic and very sound reason that it records what he, and all others, have seen, just as the court stenographer records what has been heard and seen by all.

We cannot conceive that such a statement would be permitted to stand unchallenged if it were not true. It would be utterly unrealistic to suppose that a jury or a trial judge would convict a defendant when some other person has been pointed out at the trial as the criminal, and the discrepancy remains unexplained.

Thus we shall continue to consider recorded statements, by any participant in a trial, describing non-verbal evidence, and not disputed, as being reliable and trustworthy for the purpose of appellate review. Although we do not say that the absence of such a descriptive statement in the record necessarily renders identification evidence too speculative to be a trustworthy basis for conviction, we reemphasize the need to let the record reflect, for appellate review, all evidence conveyed, by non-verbal means, to the trier of the facts.

The ideal of our system of justice and its administration in the courts is to practice fundamental fairness to all litigants and to society alike, and to afford to every person accused of crime the protection of due process of law. In the case before us we do no violence to that ideal by using common sense and common experience to say that the evidence was sufficient to show that Louis Sallie was a criminal agent in the Monger robbery. Any other view would lend credence to the feeling, by no means rare, that the laws and the courts are sometimes out of touch with reality. The feeling is not a new one.

Here it is not necessary to rely upon the identifications of Louis Sallie made before the jury by Eugene Monger and Aaron Stanley. Even if no witness physically identifies a defendant in the courtroom, identification by name is enough. 1 Wharton’s Criminal Evidence § 103 (Torcia 13th ed. 1972) says:

“Identical names give rise to a presumption of identity of person. This presumption is slight when the name is common and there are- many persons having the same name. It increases in strength with circumstances indicating the improbability of there being two persons of the same name at the same time and place, and where there is no evidence that there is any other person bearing that name. Identity, then, can be presumed from names coupled with other circumstances.”

Louis Sallie was the name of the defendant on trial. It is significant that before the jury was selected, in the absence of the witnesses but in the presence of the prospective jurors, the court identified the defendant, as Louis Sallie, to the entire jury panel. In' Mr. Monger’s' testimony he described in detail the two men he saw in his house. Another witness similarly described two men he saw at the curb in front of the house only minutes before the burglary. He also named the two men, as “Fuzzy” and Vivan Dennis. A police officer who knew both of the men saw them a half hour before a few blocks away, together, clothed as described by the other witnesses. The officer knew that “Fuzzy” and Louis Sallie were the same person. Sallie’s sister confirmed that her brother Louis was known as “Fuzzy”.

The motion for judgment of acquittal was properly denied.

Judgments affirmed.

      . In the indictment the name of the victims is spelled Munger. Throughout the transcript it is spelled Monger. There is nothing in the record which resolves the discrepancy. We shall use the spelling in the transcript.

      . The record comes to us as containing two appeals. In the first, Lewis Sallie and a codefendant were indicted for larceny of a motor vehicle and for its unauthorized use. Sallie pleaded guilty to unauthorized use. The burglary indictment is against Louis Sallies. It is clear from the record that his correct name is Louis Sallie, and we shall so refer to him. Sentences in both cases were imposed at the same time. The appeal is so worded as to include both cases. No error in the unauthorized use case is asserted here. We shall affirm that judgment without further discussion.

      . See Metallo v. State, 10 Md. App. 76, 267 A. 2d 804, cert denied, 259 Md. 734 (1970), which involved the separate trial of Rife’s codefendant, whose conviction we affirmed.

      . Charles Dickens, through a character in Oliver Twist, expressed that feeling when he wrote, “If the law supposes that,” said Mr. Bumble .... “the law is a ass — a idiot.”