author: Powers, J.,

text:
    PHILIP A. BEACH et ux. v. GEORGE J. MUELLER et ux.
    [No. 1247,
    September Term, 1975.]

      Decided June 30, 1976.

    The cause was argued before Morton, Powers and Mason, JJ.

      Avoid H. Rippevgev for appellants.

      George J. Mueller in proper person for appellees.
   Powers, J.,

delivered the opinion of the Court.

This case of ejectment and trespass, brought in the Circuit Court for Anne Arundel County to settle a boundary dispute between adjoining landowners, was removed to and tried in the Circuit Court for Baltimore County. Because the removal was improper, we must vacate the order of removal and all proceedings which followed.

George J. Mueller and his wife filed their declaration against Philip A. Beach and wife in two counts, one in ejectment and one in trespass. After a demurrer had been overruled, and the Beaches had filed pleas in bar, the Muellers filed, on 24 June 1974, a suggestion for removal, duly verified, but stating only “that they cannot have a fair and impartial trial in this Court”, and praying that the court order the removal of the record to some other court for trial.

Mr. and Mrs. Beach filed an answer opposing the removal. They asserted, “That a bare allegation that the Plaintiffs ‘cannot have a fair and impartial trial in this Court’ without a statement of reasons therefore and/or evidence in support thereof, as a matter of law is insufficient to permit the removal requested.” They moved for a hearing.

The court held a hearing, at which no evidence was taken, after which it entered an order on 5 August 1974 “that the record of these proceedings, and a copy of the docket entries in this case, be transmitted to Circuit Court for Baltimore County for trial.” The record was transmitted to Baltimore County, and the trial there resulted in a jury verdict in favor of Mr. and Mrs. Mueller. A judgment absolute was entered on the verdict. Mr. and Mrs. Beach appealed from that judgment.

Appellants assert numerous errors, but we need not, nor indeed could we properly consider anything that occurred after the removal was ordered.

It is perfectly clear that in signing the order for removal the Circuit Court for Anne Arundel County was acting under the provision of the Constitution of Maryland, Art. IV, § 8, which for 100 years has been thought to guarantee a non-discretionary right of removal in most civil actions at law.

In Davidson v. Miller, 276 Md. 54, 344 A. 2d 422 (1975), the Court of Appeals had before it a constitutional contention which the Court said, “raises for the first time the issue of whether the right of removal granted by Article IV, section 8, of the Maryland Constitution violates the ‘Equal Protection Clause’ contained in the Federal Constitution.” At 63. The Court undertook a thorough analysis of the effect of the constitutional right of removal upon parties in civil law cases in the City of Baltimore and in the counties of Maryland. The Court concluded, at 82-83:

“Having considered and rejected the preceding potential justifications for the removal inequality between Baltimore City civil law litigants and those elsewhere in the State as is permitted by Article IV, section 8 of the Maryland Constitution, and since no other rational basis is evident, we must conclude that whatever basis, if any, may have existed originally for the enactment has evaporated such that no reasonable justification now exists. Thus it is in violation of the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution. This constitutional right of automatic removal might be saved from interment were we able to read Article IV, section 8, as requiring that civil common law cases brought in the Eighth Circuit must, upon application, be removed only to a court outside Baltimore City. But such is not possible, as the pertinent part of this constitutional provision is clear in stating that in the discretion of the judge removal may be ‘to some other court having jurisdiction,’ be that court located within or without the City, and Article IV, sections 27 and 28, provide for three civil common law courts in the Eighth Circuit. It is this discretionary factor, which, when considered in light of our previous discussion, renders the pertinent portion of Article IV, section 8, unconstitutional on its face. Consequently, we hold that the portion of Article IV, section 8, which reads ‘and in all suits or actions at law, issues from the orphans’ court, or from any court sitting in equity’ and the other language relating to this (all of which is italicized in the constitutional provision quoted earlier in this opinion) is unenforcible so long as the present multiple civil common law court system exists in Baltimore City.
“The effect of this ruling, we hasten to point out, will in no way deprive or otherwise curtail the circuit courts of the counties or the circuit-level civil law courts of Baltimore City from exercising their common law discretionary power (which is subject to appellate review for abuse) to remove an action to another jurisdiction, within or without the circuit, in order to rid the case of any prejudicial barnacles which, because of local prejudice, passion or interest, may have attached; thus, as near as is reasonably possible, an action’s consideration by a fair and impartial jury can be insured. Shreffler v. Morris, 262 Md. 161, 277 A. 2d 62 (1971); Heslop v. State, 202 Md. 123, 126, 95 A. 2d 880 (1953); Negro Jerry v. Townshend, 2 Md. 274, 278 (1852); Price v. State, 8 Gill 295 (1849).”

Shortly after Davidson was decided, this Court was confronted with a removal question in Firstman v. Atlantic Constr. & Supply, 28 Md. App. 285, 345 A. 2d 118 (1975). Speaking through Chief Judge Orth we noted the effect of the ruling by the Court of Appeals in Davidson. Recognizing that the order of removal then before us was proper under the law at the time it was made, we concluded that in reviewing the propriety of the action of the lower court, we must apply the law as declared in Davidson v. Miller, supra. We applied the Davidson ruling. We said that a constitutional provision that could not be constitutionally enforced was, in legal contemplation, as inoperative as though it had never been adopted. 28 Md. App. at 298. We vacated the order of the Circuit Court for Talbot County removing the case to the Circuit Court for Caroline County for trial.

We referred to the reminder in Davidson, 276 Md. at 83, that the courts retained a common law discretionary power of removal. We said in Firstman, at 299:

“Thus, despite the unenforceability of the automatic, absolute right of removal provided by the Constitution of Maryland, a party to a law action, having made proper suggestion that he cannot have a fair and impartial trial in the court in which the action is pending, is entitled to the opportunity to make it satisfactorily appear to that court that such suggestion is true, or that there is a reasonable ground that it is true. If he succeeds in making it so appear, the case should be removed in the sound exercise of judicial discretion.”

We are mindful of the consequences of vacating the order of removal in this case. There has been a jury trial, proceeding to verdict and final judgment. In Firstman, there had been no trial. If there had been no timely objection below to the removal of this case, we would decline to consider on appeal a contention which involves only venue, not jurisdiction. Maryland Rule 1085. But there was timely opposition below to the removal. The opposition raised squarely the lack of stated reasons for removal, and of supporting evidence.

To call upon a court to exercise its common law discretionary power to remove a case, there must be a showing of reasons and, if necessary, evidence. And, as shown in Davidson, there is no constitutional right to a non-discretionary removal.

One of appellants’ contentions relates to an interlocutory ruling in the Circuit Court for Anne Arundel County before the case was removed. They assert that the court erred when it overruled their demurrer to the declaration filed in the case. As we have said, the declaration was in two counts, one in ejectment and one in trespass.

The demurrer made no attack whatever upon the sufficiency of the allegations of either count of the declaration. The sole basis of the demurrer was a series of factual allegations concerning another case which had been tried in the same court which, it was contended, supported a defense of res judicata. In 1 Poe, Pleading and Practice (Tiffany’s Edition, 1925), § 705, the author says:

“Technically, a demurrer is an admission of the truth of the facts alleged in the opposite pleading, but a denial that the facts thus admitted constitute a good ground of action or defense. By this it is not to be understood that everything contained in the pleading demurred to, no matter what be its character, is admitted to be true, but only that the effect of the demurrer is to concede such matters of fact as are issuable and well pleaded.

The function of a demurrer is stated in Maryland Rule 345, which also requires that a demurrer state in detail the question of law or insufficiency of substance upon which it is founded. A demurrer may not introduce and rely upon facts not already in the record, nor may it raise an issue of fact. A defense of res judicata is raised under a plea or pleas in bar. Maryland Rule 342, §§ b. 2. and c. 2. (g). See also Rule T42. The demurrer filed by appellants was properly overruled.

Order of removal, and all proceedings thereafter vacated.

Case remanded to the Circuit Court for Baltimore County, to be returned to the Circuit Court for Anne Arundel County for further proceedings.

Costs to be paid one half by appellants and one half by appellees.

      . By Acts of 1976, ch. 454, effective 1 July 1976, there will be a statutory right to a non-discretionary removal to another county or to another circuit, 'at the option of the party invoking the right.

      . Such a pleading is known as a speaking demurrer. Black’s Law Dictionary (4th ed. rev.) says, at 520:
      “A speaking demurrer is one which, in order to sustain itself, requires the aid of a fact not appearing on the face of the pleading objected to, or, in other words, which alleges or assumes the existence of a fact not already pleaded, and which constitutes the ground of objection and is condemned both by the common law and the code system of pleading.”

      . Once the pleadings are such as to make the defense of res judicata available, its resolution is not for the jury, but for the court as a question of law. The question should be presented to the court by a properly supported motion for summary judgment, under Rule 610, or by an application for a separate trial of an issue of law, under Rule 502. In Doug-Dun Corporation v. Simms, 31 Md. App. 350, 357 A. 2d 392 (1976), we noted the possibility that an issue of res judicata may be raised by demurrer, citing Moodhe v. Schenker, 176 Md. 259, 4 A. 2d 453 (1939). But this could occur only when the allegations of the pleading demurred to are sufficient to permit resolution of the issue.


source: Caselaw Access Project

author: * Orth, C. J.,

license: Public Domain

text:
    IN RE APPEAL NO. 1258, September Term, 1975 from the District Court of Montgomery County, sitting as a Juvenile Court
    [No. 1258,
    September Term, 1975.]

      Decided June 30, 1976.

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

      Michael G. Trainer and Daniel G. Hall for appellant.

      Michael James Kelly, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Andrew L. Bonner, State’s Attorney for Montgomery County, and Deborah Nalls, Assistant State’s Attorney for Montgomery County, on the brief, for appellee.
   * Orth, C. J.,

delivered the opinion of the Court.

THE JURISDICTION OF THE JUVENILE COURT

Chapter 554, Acts 1975, effective 1 July 1975, repealed former §§ 3-801 to 3-842, comprising Subtitle 8, “Juvenile Causes”, of the Courts and Judicial Proceedings Article, and enacted new §§ 3-801 to 3-833 in lieu thereof. Under the new law, court means “the circuit court of a county or Baltimore City sitting as the juvenile court. In Montgomery County, it means the district court sitting as the juvenile court.” § 3-801 (g). The general jurisdiction of the court is spelled out in § 3-804. Ordinarily, it has exclusive original jurisdiction over a child alleged to be delinquent, in need of supervision, or in need of assistance. § 3-804 (a). But see § 3-804 (d). A child is a person under the age of 18 years. § 3-801 (c). The determination of jurisdiction upon an allegation that a child is delinquent is controlled by “the age of the child at the time the alleged delinquent act was committed”, § 3-805 (a), as distinguished from all other cases, where it is the age of the child at the time the petition is filed which controls the determination of jurisdiction, § 3-805 (b). When a person is subject to the jurisdiction of the court, he may not be prosecuted for a criminal offense committed before he reached 18 years of age unless jurisdiction has been waived. § 3-807 (a). Subsection (b) of § 3-807 then provides:

“The court has exclusive original jurisdiction, but only for the purpose of waiving it, over an adult who is alleged to have commited a delinquent act while a child.”

The provisions of § 3-805 (a), read with the provisions of § 3-807 (b), present problems. They were recognized by the Circuit Court for Kent County in two proceedings recently before it. In each case a person was alleged to have committed a delinquent act when he was under the age of 18 years. He was over the age of 18 years when new § § 3-805 (a) and § 3-807 (b) became effective, when a petition was filed charging him with being a delinquent child and when the petition came on for hearing in the Juvenile Court. The Juvenile Court dismissed the petitions. The State noted appeals and the cases were docketed in this Court in the September Term, 1975, as In Re Appeal No. 1022 and In Re Appeal No. 1081. The Court of Appeals granted certiorari prior to decision by us and docketed the cases as No. 142, September Term, 1975. It issued a Per Curiam Order:

“For reasons to be stated in an opinion to be filed later, it is this 8th day of March, 1976
ORDERED, by the Court of Appeals of Maryland, that the orders of the Circuit Court for Kent County sitting as a Juvenile Court dismissing the Juvenile Petitions be, and they are hereby, affirmed with costs to be paid by the State of Maryland, and it is further
ORDERED that the mandate be issued forthwith.”

In No. 1022 Rasin, J., presiding in the Juvenile Court, explained to the prosecutor why he was dismissing the petition for lack of jurisdiction:

“[Y]ou are faced with a quirk of the law — I didn’t agree with the provision when they rewrote the juvenile statute — but the present law says that Juvenile Court has jurisdiction over people who are 18 when the charges are brought only for the purpose of waiving jurisdiction, if the act was committed before the child was 18. We don’t have any jurisdiction, as we did under the old law, to go ahead and try the case and do anything about it. So, I think you are caught with a technicality here the Court must look at as if the hearing were held at a time when the child was under 18, and would the Court have waived jurisdiction at that time. If the Court would have, okay, we’ll waive it now and you can be treated as an adult. But if the Court would not have, then we don’t waive jurisdiction and we have no jurisdiction — we won’t waive the jurisdiction which we don’t have. It seems to me it is a little ridiculous. But anyway, it is an automatic dismissal of the petition. So I think that is what you are faced with here. Because obviously, if this case had come to me before he was 18, under these circumstances I would not have waived jurisdiction. I would have kept him in the juvenile court.”

In No. 1081 Judge Rasin said in dismissing the petition:

“As a matter of fact, there is a difference of opinion as to whether the Court can do anything but waive, or whether it can proceed with a juvenile hearing if it doesn’t waive. It seems clear to me. . . . Because I think the law is set up as sort of a no-man’s-land which protects a first offender, which I don’t think was really intended by the people who drafted the statute, to provide that one who commits an act before he is 18, and isn’t charged until after he is 18, and if he had no prior record he goes scot-free. That seems to be the concensus on the part of most of the people who have had to deal with this particular part of the law. It is highly unsatisfactory. ... Well, as unfortunate as I think it is, from both the point of view of the interests of the public, and the interests of this Respondent, and considering the fact that there was no prior misbehavior that had been brought to the attention of the authorities or juvenile services, and what we are dealing with is a 17 year-old boy, who is alleged to be involved in a breaking and entering, and under those circumstances the Court would not have waived jurisdiction, and the fact that he is now 18 is insufficient as a fact to waive jurisdiction, because if that had been the intention then the law would have been drafted so that anyone who is found to have committed a crime before he was 18, with discovery being made after he was 18, would automatically be tried as an adult offender, and that would have been the easy answer to the problem. So the Court will deny waiver which in effect terminates the case, because the Court does not have jurisdiction over anyone who is now 18. It has been suggested that in situations like this the State should have at least maybe three years, and would provide that in the event it was detected after 18, that the Juvenile Court, in those situations, could have jurisdiction until the person is 21. That at least gives you three years to cover a situation such as this, so that the Juvenile Court can go ahead and try them. But right now the law says you don’t have any jurisdiction over a person, where the petition is initiated after he is 18.”

It is manifest in the action taken by the Court of Appeals that it is in accord with the court below that in the circumstances the Juvenile Court had jurisdiction “only for the purpose of waiving it” and not for the purpose of determining delinquency vel non at an adjudicatory hearing, See 60 Op. Atty. Gen., filed 30 June 1975.

WAIVER OF JURISDICTION BY THE JUVENILE COURT

The Juvenile Court may waive its exclusive jurisdiction as to a child who is 15 years of age or older after a waiver hearing, held prior to an adjudicatory hearing upon due notice. Courts Art. § 3-817 (a) (1) and (b). To waive its jurisdiction, the court must determine, from a preponderance of the evidence, “that the child is an unfit subject for juvenile rehabilitative measures.” Subsection (c). In making the determination whether to waive, the court is required by subsection (d) to consider:

“(1) Age of the child;
(2) Mental and physical condition of the child;
(3) The child’s amenability to treatment in any institution, facility, or program available to delinquents;
(4) The nature of the offense and the child’s alleged participation in it; and
(5) The public safety.”

See Maryland Rule 913. After a petition has been filed bringing a person under the exclusive jurisdiction of the Juvenile Court, the court may direct a qualified agency “to make a study concerning the child, his family, his environment, and other matters relevant to the disposition of the case.” Courts Art. § 3-818 (a). This report is admissible as evidence at a waiver hearing, but the attorney for each party “has the right to inspect the report prior to its presentation to the court, to challenge or impeach its findings, and to present appropriate evidence with respect to it.” Id. Cf. Rule 913, §§ b and c. Procedures upon a waiver of jurisdiction are provided both by Courts Art. § 3-817 (e) and Rule 913, § e. The statute states: “If the jurisdiction is waived, the court shall order the child held for trial under the regular procedures of the court which would have jurisdiction over the offense if committed by an adult.” The Rule goes into more detail. It provides:

“1. If the Court concludes that its jurisdiction should be waived, it shall:
(a) state the grounds for its decision on the record or in a written memorandum filed with the clerk;
(b) enter an order (i) waiving its jurisdiction and ordering the respondent held for trial under the appropriate criminal procedures; and (ii) placing the respondent in the custody of the sheriff or other appropriate officer in an adult detention facility pending a bail hearing pursuant to Chapter 700 of the Maryland District Rules.”

Under both the statute and the Rule, a petition alleging delinquency shall be considered a charging document for purposes of detaining the respondent pending a bail hearing. Courts Art. § 3-817 (d) and Rule 913, § e 2. In Matter of Trader, 20 Md. App. 1, 14-15 (1974), reversed on other grounds, 272 Md. 364 (1974), we said: “The purpose of a juvenile waiver hearing is to determine the fitness of- the child for juvenile rehabilitative measures giving due consideration for the safety of the public.” We cited Matter of Flowers, 13 Md. App. 414, 416 (1971) and set out the factors to be considered, which under the law then in effect were in substance the same as the present law. We pointed out, giving Hazell v. State, 12 Md. App. 144, 155 (1971), cert. den., 263 Md. 715 (1971), as authority, that not all of the factors, however, need be resolved against the respondent to justify waiver. We explained, 20 Md. App. at 14: “The court is not required to make an arithmetic-type calculation as to the weight it assigns each factor. The general rule is that a waiver will be upheld where a preponderance of the legally sufficient evidence shows that such a determination is proper in the light of the factors to be considered.” See Matter of Barker, 17 Md. App. 714, 721 (1973); Matter of Johnson, 17 Md. App. 705 (1973).

THE CASE SUB JUDICE

Statement of the Case

The respondent in the juvenile proceeding below, who in deference to Rule 1097 shall remain anonymous, but who, for ease of expression shall be hereinafter known as “Albert”, was alleged to have committed certain delinquent acts on two occasions, 22 June 1975 and 14 September 1975. Albert became 18 years of age on 5 October 1975. Two petitions charging him with being a delinquent child were filed on 3 November 1975. The same date the State filed a petition requesting that the Juvenile Court waive its jurisdiction and that Albert be held for action under the regular procedures that would follow if such acts had been committed by an adult. Upon hearing on 1 December 1975 the court ordered that its exclusive original jurisdiction be waived and that Albert be held for action under the appropriate criminal procedures. Albert appealed. Courts Art. § 3-817 (f).

The Waiver Hearing

At the hearing on 1 December 1975 Albert opposed the waiver of jurisdiction. The court read into the record the crimes set out in the petitions which were the bases of the allegations of delinquency. The crimes related to the breaking and entering of certain premises on 22 June 1975 and 14 September 1975. The State proffered the testimony of a police officer. The proffer described the circumstances of the breakings and the personal property stolen. Several days after the last breaking the police, upon receipt of information from a “confidential informant” recovered certain of the stolen articles from Albert’s bedroom. Albert confessed to his participation in the crimes. The first series of offenses were committed three months before Albert reached the age of 18 years and the second series three weeks before he attained that age. The State said: “As to the nature of these offenses, they are both very serious felonies,” with substantial sentences authorized upon conviction. The first series, involving a commercial establishment, was committed at night. It was not certain whether the second series was committed during the day or at night, but it involved a dwelling house. The State summarized its argument in support of the waiver:

“Very close to adult jurisdiction. Time for rehabilitation is over. The State puts primary emphasis on the fact of the age and the seriousness of the offenses and the apparent lack of any mental or physical disabilities on the part of this respondent.”

The court said it wanted to hear from the probation officer and a Mrs. Smith testified. With reference to her testimony, the transcript of the proceedings reads: “(UNCLEAR — TOO FAR FROM MIKE).” The only thing she said which is reflected in the transcript is a reply to a question by the judge:

COURT: You are talking about the current offense? The one before us today?
MRS. SMITH: Right. (UNCLEAR)”

Defense counsel had no questions of Mrs. Smith.

Albert testified in his own behalf. He admitted he had given a statement to the police after his arrest. At the request of his counsel he gave the substance of the statement:

“I told him that, I voluntarily, did breaking to both charges and that there was another person involved. And they did at the time arrest that person. And she wasn’t at the station when I got there. They had let her go. I think that was the information they had against me.”

He gave the name of the other person involved, a girl 17 years of age. Albert said that she had not been arrested for crimes of which he was accused. She was, however, according to Albert, charged as a juvenile for shoplifting. Counsel argued the waiver motion. The court ruled:

“The law that is before us today is not without its difficulties at least as far as this court is concerned. And I believe that it is shared with other courts throughout the State of Maryland. Not necessarily that there is an agreement and that’s one of the difficulties that’s apparently been a disagreement as to the interpretation of the law. The point where the Attorney General has submitted an opinion which happens to coincide with this court’s opinion and that is that the court, when the court has before it a person 18 years of age or older who is charged with committing an offense prior to his/or her 18th birthday, then the law tells us that we have no jurisdiction over that person except to waive. And this court has interpreted that further to say, and as I say the Attorney General has also ruled which obviously isn’t binding, that this means that if jurisdiction is not waived then there is no prosecution available to the State on a delinquency matter. Now this of course does not say that the court has to waive its jurisdiction. To me it simply says that the court either waives its jurisdiction or that’s the end of the State’s capability to present, under the law, to present any evidence to find the person delinquent. As I say this is not necessarily concurred in by other members of the courts. As a matter of fact, another member of this court inteprets it differently. But I have ruled as I say that there is no prosecution available on a delinquency matter if the court denies its waiver, the State’s waiver or petition. Criteria of course are that as indicated that the court in determining whether to waive shall consider the following and the court’s understanding and recollection of the case law does not require that the court has to or that all of these criteria must be met. Consider the age of the child, mental and physical condition, the child’s amenability to treatment in the institution/facility or program available to delinquents, the nature of the offense, and the child’s alleged participation in it and the public safety. And the court must determine in order to waive jurisdiction from a preponderance of the evidence presented that the child is a fit subject for juvenile rehabilitation measures. And as I say this is where the law becomes a little difficult to interpret because under the interpretation that I have just alluded to, the person 18 in theory is not capable of being treated within the juvenile system because the court doesn’t have jurisdiction over him. Unless presumably its a person that the court already has jurisdiction over. In looking at the, first the individual of course, [Albert] is 18 years of age. The offenses of course as set forth which the court must presume have been committed for the purposes of this hearing are serious. Housebreaking, store housebreaking, private dwelling housebreaking apparently one of which in the night time. ,The other may or may not be in the night time. And of course the State has indicated, committed shortly before [Albert] became 18. There is not indication here, of course, obviously the law does allow some delay, deliberate delay if necessary on behalf of the police or the State’s Attorney or both to wait until the person reaches eighteen and then file the petition. But there is no indication here at all. And I don’t suggest that this has happened here. In fact the second offense occurred quite close to the young man’s 18th birthday. And this petition was filed promptly thereafter. And the hearing, of course, came within a reasonable time after that. So there is no indication here. But the law does provide for this. Which I say is an unfortunate thing. Which I say does enable the authorities to delay for some period of time. The court will find however and will sustain the State’s petition that the, in looking at the criteria, the court will conclude that the State has by a preponderance of the evidence proven that he is not a fit subject for juvenile measures, in the light of his age, in the light of his offenses that are charged before the court, and the public safety. The court would rule on all of these (UNCLEAR) that he is thereby an unfit subject for juvenile rehabilitation measures.”

The judge later, in response to remarks by defense counsel, made clear that he had “no preconceived ideas until [I] ruled whether I would waive jurisdiction or not. I think still its my discretion. In this case I elected to waive jurisdiction. .. . I’ve denied waiver and I’ve granted waivers in this type of a case. And, I mean, in the 18 year old category.” The judge denied defense counsel’s assertion that the court did not “really have an option.” “This court feels that it does... . The question is whether this presents a danger to the public and whether the person would otherwise be amenable to treatment as a juvenile.... I made the decision. Its a judgmental thing but I made the decision.”

Issues for Decision

(1)

On appeal, Albert first asks if the hearing judge was correct in holding that a Juvenile Court has jurisdiction over a person who commits an offense prior to his 18th birthday but who is not charged until after his 18th birthday, but that its jurisdiction in such circumstance is only for the purpose of waiving that jurisdiction or not waiving it. The per curiam order of the Court of Appeals which we have discussed above is dispositive of this issue. The judge below was correct.

In any event, applying the general rule that a waiver will be upheld where a preponderance of the legally sufficient evidence shows that such a determination is proper in the light of the factors to be considered, we see no abuse by the judge below of his judicial discretion.

(2)

Albert next asks if the interpretation of the trial court of the statutory law was “violative of the individual’s right to equal protection of the laws as guaranteed by the 14th Amendment to the Constitution of the United States and Article 23 of the Maryland Declaration of Rights”. It seems that what he is urging is that the statutes were unconstitutional as applied. This point was not tried and decided below. We said in Vuitch v. State, 10 Md. App. 389, 398 (1970), cert. den., 261 Md. 729 (1971), 404 U. S. 868 (1971): “Of course, nothing is better settled than the rule that a question as to the constitutionality of a statute will not be considered on appeal when not properly raised and decided by the lower court.” See Hall v. State, 22 Md. App. 240, 245-246 (1974).

(3)

Albert lastly contends that the failure of the court below “to inquire of the State as to the reason for the delay in filing the petition for waiver was error and violative of appellant’s right to due process of the law.” He concedes that the lower court found that there had been no deliberate delay on the part of the State in filing the petition, but complains because the court made no inquiry of the State’s Attorney as to any intentional delay. We cannot say that the court was clearly erroneous in his judgment on the evidence before it. Rule 1086.

Albert asserts that he “was given no notice of the Petition to Waive Jurisdiction filed by the State’s Attorney until the document was in fact filed and the lower court’s determination that jurisdiction of the court had to be waived by terms of the statute. ...” Whatever this may mean, we find full compliance with procedural requisites of notice. Courts Art. § 3-817 (b) provides for notice as prescribed by the Maryland Rules. Rule 909, § c prescribes “a minimum five day notice of the time, place and purpose of any hearing....” The record before us includes a document entitled “Preliminary Hearing”. It is dated 5 November 1975 and indicates it concerns the waiver petition. It shows that Albert received a copy of the Petition, reviewed the charges in the Petition, was advised of his right to an attorney, was referred to the office of the Public Defender, that he entered as a plea “denies”, and that he was “given notice of date of full and just hearing on Dec. 1, 1975, at 9:00 A.M.” The record also contains a copy of a “Notice of Hearing” issued by the Clerk of the Court on 6 November 1975 which reads:

“TAKE NOTICE that a hearing has been set in the above-entitled cause for 9:00 [A.M.] on the 1 day of December, 1975, at 15825 Shady Grove Road, Rockville, Maryland, for the following purpose: (specify) [Albert] charged with Burglary S545-834-to determine whether jurisdiction should be waived.”

Even if a due process question had been preserved for review, we see no error of constitutional'dimension.

We note that when the court concluded that its jurisdiction should be waived, it complied with paragraph a and b, subsection 1, section e, Rule 913, by stating its grounds on the record, and entering a proper order.

CHAPTER 463, ACTS 1976

We have a final observation. Courts Art. §§ 3-805 and 3-807 as enacted by ch. 554, Acts 1975, have been amended by ch. 463, Acts 1976, effective 1 July 1976. Under the 1976 statute, in § 3-805 (a) “person” is used in place pf “child”, so that the subsection reads:

“If a person is alleged to be delinquent, the age of the person at the time the alleged delinquent act was committed controls the determination of jurisdiction under this subtitle.”

In § 3-807 (b), “adult” has been replaced by the phrase “a person 21 years of age or older”, and the subsection reads:

“The court has exclusive original jurisdiction, but only for the purpose of waiving it, over a person 21 years of age or older who is alleged to have committed a delinquent act while a child.”

Order of 1 December 1975 affirmed.

      . Unless otherwise indicated, citation of a statutory section shall be to the section of Courts Art., Title 3, Subtitle 8, as amended by ch. 554, Acts 1975, effective 1 July 1975.

      . A delinquent child “is a child who has committed a delinquent act and requires guidance, treatment, or rehabilitation.” § 3-801 (j). A delinquent act “means an act which would be a crime if committed by an adult.” § 3-801 (i).

      . “If the court obtains jurisdiction over a child, that jurisdiction continues until the child reaches 21 years of age unless terminated sooner.” § 3-806 (a). “Unless otherwise ordered by the court, the court’s jurisdiction is terminated over a person who has reached 18 years of age when he is convicted of [certain crimes].” § 3-806 (e).

      . See Maryland Rule 1097.

      . The proceedings were recorded on a disk record. There are a number of instances reflected in the stenographic transcription as “UNCLEAR”.


author: *Orth, C. J.,

text:
    IN RE APPEAL NO. 1038, September Term, 1975 from the Circuit Court for Cecil County, sitting as a Juvenile Court
    [No. 1038,
    September Term, 1975.]

      Decided July 1, 1976.

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

      John W. Same, Jr., District Public Defender, for appellant.

      John A. Amtin, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Donaldson C. Cole, Jr., State’s Attorney for Cecil County, and Frank T. Howard, Assistant State’s Attorney for Cecil County, on the brief, for appellee.
   *Orth, C. J.,

delivered the opinion of the Court.

In the law pertaining to juveniles, an “adult” means a person who is 18 years old or older, and a “child” means a person under the age of 18 years. Courts Art. § 3-801 (b) and (c). The appellant in this case was the respondent in a juvenile action. In accordance with Maryland Rule 1097, he shall remain anonymous, but for ease of expression shall be hereinafter known as “Thomas”. Thomas was born on 8 September 1957. Therefore, before 8 September 1975 he was a child, but became an adult on that date. While he was yet a child, twelve petitions were filed in the Circuit Court for Cecil County, six on 8 August 1975 and six on 11 August 1975, alleging that he was a “delinquent child”, that is “a child who has committed a delinquent act and requires guidance, treatment, or rehabilitation.” Courts Art. § 3-801 (j). The delinquent acts were designated as having been committed during periods varying between 13 October 1974 and 22 November 1974. They involved the breaking and entering of certain premises and the larceny of personal property therefrom. There was an adjudicatory hearing on 11 September 1975 in the Circuit Court for Cecil County sitting as the Juvenile Court. Courts Art. § 3-801 (g). At that time, Thomas was an adult, but he was found to be a delinquent child under each petition. By its order the same date, the court placed him in the care and custody of the Secretary, Maryland Department of Health and Mental Hygiene, for commitment to Boys’ Forestry Camp for an indeterminate period. A motion for “a partial new trial” was heard and denied on 25 September. On 3 October, Thomas appealed.

The primary issue on appeal challenges the jurisdiction of the court below to determine that Thomas was a delinquent child. As we observed in In Re Appeal, No. 1258, September Term, 1975, from the District Court of Montgomery County sitting as a Juvenile Court, 32 Md. App. 225 (1976), the issue stems from the wording of Courts Art. § 3-805 (a) vis-á-vis Courts Art. § 3-807(b). The general jurisdiction of a juvenile court is ordinarily as provided by § 3-804 (a) which includes that a juvenile court has exclusive original jurisdiction over a child alleged to be delinquent. Section 3-805 (a) refines this:

“If a child is alleged to be delinquent, the age of the child at the time the alleged delinquent act was committed controls the determination of jurisdiction under this subtitle.”

Although § 3-805 (a) gives a juvenile court exclusive original jurisdiction over a person who is alleged to have committed a delinquent act while a child, § 3-807 (b) limits this jurisdiction:

“The court has exclusive original jurisdiction, but only for the purpose of waiving it, over an adult who is alleged to have committed a delinquent act while a child.”

We found in In Be Appeal No. 1258 that when a person is alleged to have committed a delinquent act while a child, and is charged therewith under a juvenile petition filed after he has attained the age of 18 years, the Juvenile Court has jurisdiction only for the purpose of determining whether to waive that jurisdiction. If the Juvenile Court properly waives its jurisdiction, the person then may be tried for the crimes as if he had been an adult when he committed them. If, however, the court determines that its jurisdiction ought not to be waived in the circumstances, then the person could not be tried and would go free. A juvenile court would have no jurisdiction to try him because of the provisions of § 3-807 (b) and a circuit court would have no jurisdiction to try him because § 3-807 (a) prohibits the prosecution of a person subject to the jurisdiction of a juvenile court for a criminal offense committed before he reached 18 years of age unless jurisdiction has been waived.

By express language the limitation on the exclusive original jurisdiction of a juvenile court imposed by § 3-807 (b) applies to “an adult who is alleged to have committed a delinquent act while a child.” (emphasis added) In No. 1258, Albert had attained 18 years of age when the petitions were filed against him. Thus, he was an adult when he was alleged to have committed a delinquent act while a child, and the limitation of § 3-807 (b) was applicable). In the case sub judice, on the other hand, Thomas was under 18 years of age when the petitions were filed against him. Thus, he was not an adult when he was alleged to have committed delinquent acts while a child, and the limitation of § 3-807 (b) was not applicable. In other words, under the juvenile subtitle, we believe that an allegation of delinquency is made by the filing of a petition. §§ 3-810 and 3-812. If the petition is filed after the respondent has attained the age of 18 years, the restrictions of § 3-807 (b) apply. If the petition is filed before the respondent attains the age of 18 years the restrictions do not apply. In short, it is the time of the filing of the petition, not the time of the adjudicatory hearing, which is determinative of the application of § 3-807 (b).

We do not agree with Thomas’s contention that the court below never acquired jurisdiction over him. The court below had exclusive original jurisdiction over Thomas. That jurisdiction was not limited and was not waived. The jurisdiction obtained will continue until Thomas reaches 21 years of age unless terminated sooner. Courts Art. § 3-806 (a). Therefore, the court properly held an adjudicatory hearing on the issue of whether Thomas was a delinquent child.

Courts Art. § 3-812 (c) provides that pleadings in juvenile causes and the procedures to be followed by the court shall be as specified in the Maryland Rules. Rule 907, § b provides:

“If a respondent child has filed a pleading admitting the allegations of the juvenile petition or indicates to the court his intention not to deny those allegations, the court, before proceeding with an adjudicatory hearing, shall, in open court and on the record, advise the respondent child of the nature and possible consequence of his action or intented action. The court shall neither encourage nor discourage the respondent child with respect to his action or intended action, but shall ascertain to its satisfaction, in open court and on the record, that the respondent child understands the nature and possible consequence of failing to deny the allegations of the juvenile petition, and that he takes that action knowingly and voluntarily."

Thomas filed an Answer, signed by him, his mother and his father, and witnessed by his attorney, which went to all twelve petitions. It expressed an understanding of his rights, which were set out in detail, and concluded:

“WHEREFORE, being satisfied that we have received fair notice of the allegations in the petition and that we understand the allegations and our rights as set forth above, we, the undersigned, voluntarily and of our own free will:
waive the right to a hearing on the allegations in the petition; admit that the statements in the petition are true and correct; and, consent to have the Court make a finding of delinquency and make an appropriate disposition in this case.”

At the adjudicatory hearing on 11 September 1975, the court fully complied with the requirements of Rule 907, § b. The transcript of the proceedings reflects a careful and thorough personal inquiry of Thomas by the judge. The judge ascertained that Thomas understood the nature and possible consequence of admitting the truth of the allegations of the juvenile petitions, and that he made the admissions knowingly and voluntarily. Having ascertained this to his satisfaction, the judge called for and received a statement from the State of the facts and circumstances of the delinquent acts admitted. Thomas expressly declared that he agreed with the statement of facts as given and that there was nothing he wanted to add or change. The judge said:

“Based upon your answers to the Court’s questions concerning your knowledge and comprehension of the answer in this case and its effect, [the State’s] statement with regard to the circumstances, the Court will accept the answer in each of these answers.
Mr. Clerk, you can say that the finding of the Court in each case is delinquent.”

A disposition hearing then followed.

As we read Thomas’s brief on appeal, he does not dispute that the record is sufficient to show that, represented by counsel, he voluntarily admitted committing the acts alleged in the petitions, that he “was advised of, understood and waived his constitutional rights against compulsory self-incrimination and to confront his accusers,” and that he was aware of the sanctions which could be imposed upon him by the Juvenile Court. See In Re Appeal No. 544, September Term, 1974, 25 Md. App. 26 (1975) cert. granted, 2 June 1975, and dismissed 6 November 1975 as improvidently granted. He urges, however, that there was no factual basis for the criminal conduct he was admitting. We do not agree. Courts Art. § 3-812 (a) requires that a petition alleging delinquency “shall set forth in clear and simple language the alleged facts which constitute the delinquency, and shall also specify the laws allegedly violated by the child.” Each petition here met these requirements. Each set out that Thomas, during a certain period, did break into the dwelling house, specifically located, of a named person, with intent to steal, or did steal, personal property. During the personal inquiry of Thomas by the judge, Thomas admitted committing the offense alleged in the petitions “because, in truth and fact,” he “did commit them.” In the statement given by the prosecutor, it appeared that there were breakings and enterings — “jimmied locks or something” — of dwellings in the KOA Campgrounds in Perryville, Maryland, which were closed for the winter season. The prosecutor said that Thomas “has admitted his involvement in these petitions. He has taken the police officers and described the particular buildings involved in these petitions and shown them rather clearly which ones he was talking about that he was involved in.” Even if the admissions by Thomas were “tantamount to a plea of guilty in a criminal case”, they were properly supported by a sufficient factual basis.

Thomas finally claims that there was insufficient evidence to permit his commitment. At the disposition hearing, Judith Ann DeAnglis, Intake Consultant for the Maryland Department of Juvenile Services, had done “intake consultation work” with Thomas. Based upon the intake consultation and her knowledge of the circumtances, it was her opinion that Thomas was in need of “care, treatment... and supervision.” He had first been referred to the Department on 5 May 1971 for breaking and . entering a workshop. The incident was handled informally and restitution made. On 11 November 1974, he was referred for possession of marijuana and was placed on “informal supervision.” The next contact with the Department was in the case subjudice. Ms. DeAnglis thought that Thomas was in need of supervision from the Department for two reasons. “He’s out of school. He dropped out in the eighth grade at age sixteen. He admits to me that he has never done well in school. He had repeated both the first and the third grade and, by the eighth grade, felt that he would just rather be working.” The second reason seemed to be that although Thomas was successful in obtaining jobs, he was unsuccessful in keeping them. Nevertheless, Ms. DeAnglis felt that Thomas had made a change in his life after his arrest on the current charges and that he would benefit by staying in the community. She said: “I feel that, with supervision from the Department of Juvenile Services, he can continue employment, can possibly move out of his home so he can get away from some of the bad influence there, yet still have access to some of the benefits that he can derive from his home.” She recommended that Thomas “be placed on probation for an indefinite period, in the community, and that his full share of restitution be paid to the victims of these twelve petitions.” After further inquiry by the court, argument of counsel, and a continuance, the judge made disposition based on his belief that it was “dangerous to put [Thomas] out in the community again unless some type of rehabilitation is exercised.... Now, after giving this considerable thought and having Ms. DeAnglis check with the forestry camp, I think in this case that I just can’t conscientiously turn this boy back out on the street on probation.”

We see no abuse of judicial discretion in the court committing Thomas to the custody of the Department of Health and Mental Hygiene as authorized by Courts Art. § 3-820 (b) (2). Section (b) of § 3-820 declares:

“The overriding consideration in making a disposition is a program of treatment, training, and rehabilitation best suited to the physical, mental, and moral welfare of the child consistent with the public interest.”

We think it manifest that in making disposition of Thomas, the court was motivated by the prescribed “overriding consideration.” We observe that the commitment was the subject of a “Motion for a Partial New Trial” filed 16 September 1975 and heard on 25 September. The judge made clear that he could not believe that “a boy who would set out and commit that many offenses suddenly becomes trustworthy.” He thought Thomas “needs some type of program to make him realize that he’s got to conform.” Based on his knowledge of the background of Thomas’s family, the judge believed that “they’re not the type of people that, in my judgment, are able to give this boy the kind of advice and counsel and supervision that he should have in order that he can conduct himself properly. I just don’t think he’s got it in the home. I think there’s got to be some changes.” This was a fair and reasonable conclusion from the evidence before the court. We shall not disturb the disposition made.

Commitment order of 11 September 1975 affirmed.

      . Title 3, subtitle 8, is entitled “Juvenile Causes”. Chapter 554, Acts 1975, effective 1 July 1975, repealed former §§ 3-801 to 3-842 and enacted new §§ 3-801 to 3-833 in lieu thereof. The repealed sections derived from Acts 1973, 1st Sp. Sess. ch. 2, § 1, as amended. Hereinafter, reference to sections of title 3, subtitle 8, shall be to the new law unless otherwise indicated.

      . “Delinquent act” means an act which would be a crime if committed by an adult. Courts Art. § 3-801 (i).

      . At one stage of the proceedings below, the State told the court: ‘This case involves twelve petitions, all basically arising out of the same offense. ... If it were not for the fact that it was twelve different victims involved, it would have been one petition....”

      . The court also ordered on 11 September 1975 that Thomas be delivered to the Maryland Training School for Boys pending transfer to the Camp.

      . In all cases except an allegation that a child is delinquent, in which case the age of the child at the time the alleged delinquent act was committed controls the determination of jurisdiction of the juvenile court, § 3-805 (a), the age of the child at the time the petition is filed controls, § 3-805 (b). The problems posed in Appeal No. 1258 and in the case sub judice arose when ch. 554, Acts 1975 repealed former §§ 3-801 to 3-842 arid enacted new §§ 3-801 to 3-833 in lieu thereof. See note 1 supra. The 1975 § 3-807 (a) was the same as former § 3-809 but the provisions of the 1975 § 3-807 (b), which created the problem, did not appear in the former statute. The 1976 General Assembly recognized the confusion created by the 1975 statute. As we noted in Appeal No. 1258, §§ 3-805 and 3-807 were amended by ch. 463, Acts 1976, effective 1 July 1976. In most instances, “person” is used in the amendments where “child” and “adult” were used before, and the new § 3-807 (b) spells out that the limitation of the exclusive original jurisdiction to the waiving of that jurisdiction, applies “over a person 21 years of age or older who is alleged to have committed a delinquent act while a child.”

      . In the case before us, waiver of the jurisdiction of the Juvenile Court did not arise below. The court on its own motion did not waive its jurisdiction and there was no separate waiver petition filed by the State’s Attorney. Rule 913, § a. In the proceedings below the State indicated that there was no basis for it to request a waiver of the jurisdiction of the Juvenile Court. The prosecutor said: “We can’t move to waive someone and we wouldn’t if we didn’t have any testimony in support of it. And the only way we have is when Juvenile Services is in agreement concerning the question of waiver. When waiver’s not a factor, as it wasn’t in this case under the circumstances, the State’s primary concern in this thing is restitution for these victims____” The court observed: “Restitution’s one thing, but protection of the community is another.”
      The question'as to the jurisdiction of the lower court, however, may be raised and decided in this Court whether or not raised and decided in the lower court. Rule 1085.

      . Rule 907, § b further provides: “If the respondent is an adult, the provisions of Chapter 700 (Criminal Causes) shall apply.” Although Thomas was an adult at the time of the adjudicatory hearing, he was a child, as we have indicated, at the time of the commission of the alleged delinquent acts and at the time the petitions were filed against him. We do not consider him to have been an “adult” in the contemplation of the provisions above quoted. He was not an “adult” as a “respondent”.


author: Lowe, J.,

text:
    DOROTHY B. TROSCH v. MARYLAND NATIONAL BANK et al.
    [No. 1263,
    September Term, 1975.]

      Decided July 1, 1976.

    The cause was argued before Menchine, Lowe and Melvin, JJ.

      MaxE. Blumenthal for appellant.

      William A. Snyder, Jr., with whom were Ober, Grimes & Shriver on the brief, for appellee Maryland National Bank.
   Lowe, J.,

delivered the opinion of the Court.

Such immediate attraction as appears in appellant’s argument derives more from its beguiling articulation than from inherent merit. The sole question is whether a trust executed by Ivan E. Trosch simultaneously with his will was in existence at the time of his death, because the residuary clause of his will was subject to that condition precedent:

“I give, devise and bequeath all the rest, residue and remainder of my estate, real, personal and mixed, wheresoever situate and howsoever acquired, unto JEANETTE LEVY and the MARYLAND NATIONAL BANK and their successors, Trustees under Declaration of Trust from me dated [no date appears], to be held, administered and ultimately distributed in accordance with the terms and provisions of said trust as if originally a part thereof. In the event that at the time of my death there is no such trust in existence, then I give, devise and bequeath said rest and residue of my estate, unto my beloved wife, DOROTHY TROSCH, if she is then living.” (Emphasis added).

The language emphasized gave rise to this dispute. Appellant, Dorothy Trosch, based her claim to the residue of the estate upon the common law premise that a requisite to the existence of a valid trust is that there be some trust property, i.e., a corpus, even if a nominal one. For that proposition she cites I Scott on Trusts, §§ 54.3, 57.3 (3rd ed); I Casner, Estate Planning, 282 (3rd ed.) and the Restatement, Trusts 2nd, § 57, comment f and § 54, comment f. From this premise she argues that the testator intended that the trust have an independent existence at the time of his death, that the trust instrument was never fully executed and consequently never existed, and even if the trust instrument was executed, it was never consummated as a trust since there was never a trust corpus. Even if created, she contends that the trust was revoked by later conduct of the testator in recalling from the bank certain life insurance policies to which he had alluded in the preamble to the trust instrument.

The preamble to which she alludes designates what property is to comprise the trust corpus;

“WHEREAS, the Settlor has designated, or is about to designate the said Trustees as the beneficiaries or assignees of the policies of insurance on his life described in the schedule marked ‘Schedule A’ attached hereto as part hereof, and the Settlor may hereafter designate the Trustees as beneficiaries or assignees of other policies on his life, and may add other property to this trust estate by grant in trust, or by Last Will and Testament, and the Settlor desires the proceeds of said policies and any other property which may be added to the said trust estate by his Last Will and Testament, or by grant, or which may be added in any other manner permitted hereunder, to be held in trust for the uses and purposes hereinafter set forth.”

The trial court held that a valid trust was created by the execution of the trust instrument and was given testamentary vitality by incorporation by reference into Trosch’s will.

Estates and Trusts Art., § 4-107 provides:

“The terms of any writing which is in existence when a will or trust instrument is executed, including but not limited to a statement of administrative provisions and fiduciary powers recorded in a record office of this state, may be incorporated into the will or trust instrument by reference to it to the extent the language of the will or trust instrument manifests an intent to do so and describes the writing sufficiently to permit its identification....”

Item Three of the will gave the residue of Trosch’s estate after specific bequests

“unto JEANETTE LEVY and the MARYLAND NATIONAL BANK and their successors, Trustees under Declaration of Trust from me dated--...”

We think that this sufficiently describes the trust instrument which was executed on the same day and depicted prefatorily as “This Declaration of Trust....” Moreover, the will names as residuary recipients of his estate, the same trustees as he named in the trust instrument. The absence of the date of the trust in the incorporation is not fatal since the trust instrument is otherwise adequately described.

Significantly, we note that the Maryland Legislature has enacted a statute conditionally abrogating the common law rule upon which appellant relies, i.e., that a trust must have a corpus to be in existence. Estates and Trusts Art:, § 4-411 permits legacies to unfunded inter vivos trusts:

“§ 4-411. Legacy to inter vivos trust.
(a) Legacy to trust. — A legacy may be made in form or in substance to the trustee in accordance with the terms of a written inter vivos trust, including an unfunded life insurance trust although the settlor has reserved all rights of ownership in the insurance contracts, if the trust instrument has been executed and is in existence prior to or contemporaneously with the execution of the will and is identified in the will, without regard to the size or character of the corpus of the trust or whether the settlor is the testator or a third person.”

Appellant points out that, although Estates and Trusts Art., § 4-411 permits such legacies to inter vivos unfunded trusts, it is conditioned upon the trust instrument having been executed and “in existence prior to or contemporaneously with the execution of the will, . ...” She contends that the trust instrument was not in existence when the will was executed and, therefore, did not comply with § 4-411 because Schedule A, which was recited as scheduling the insurance policies, had not been prepared. We do not infer from the uncompleted schedule, nor from the missing date, as appellant would have us do, that testator executed his will before, rather than after, execution of the trust.

Citing Bircher v. Wasson, 133 Ind. App. 27, Professor Casner points out in I Estate Planning, p. 283, that when such a will and trust are executed on the same day, the trust agreement will be regarded as having been executed first because:

“If the trust instrument is executed prior to the execution of the will, it should not make any difference whether the trust comes into existence technically before or after the will is executed. In either case, a beneficiary is described in the will that is capable of receiving a gift from the will at the time the will takes effect. Resort to incorporation by reference should not be necessary to uphold the gift as long as the described trust is in fact in existence when the testator dies. A court which did not choose to recognize this result should, at the very least, treat the instrument as incorporated by reference, even though the will contains no specific language about incorporation by reference.” Casner, supra, at 687 of 1975 supplement.

Undiscouraged by that seeming set back, appellant rebounds with the contention that because § 4-411 states it should apply “without regard to the size or character of the corpus,” those words presuppose some corpus and the common law principle upon which she relies (i.e., that a trust must have a corpus to have existence) is not abrogated by the statute. We note, however, that the statute is not conditioned upon the existence of a trust but upon the existence of a trust instrument, and we agree with the trial judge that such instrument did exist.

We hold that the trust was in existence as provided in § 4-411 and was identified sufficiently to incorporate it into the will in conformance with § 4-107, so as to permit the distribution of the residue of Trosch’s estate to it both under the law and under the terms of his will. Since the trust was in existence at the time of Trosch’s death under the provisions of § 4-411, only a formal revocation of the trust as provided by the instrument could have prevented distribution of the residue to the trust under Trosch’s will.

Backed to the wall, appellant finally contends that the settlor did indeed exercise the right of revocation which he had reserved in the trust instrument, by a letter to the bank recalling certain life insurance policies which he had entrusted to it. This letter stated:

“At the present time, you are holding life insurance policies in trust for me in your Trust Department. They were delivered to you some 5, 6, or seven years ago and I would like to have said policies returned to me. There would be Mutual of New York Policies, Sun Life of Canada, Veterans policy, etc. Whatever you have on my file, please return to me at 4022 Fallstaff Road, Baltimore, Maryland, 21215. My lawyer of record is J. William Martin, One Charles Center, Baltimore, Maryland.”

However, we note that the trust instrument clearly set forth the sole means of revocation as being:

“... by an instrument or instruments in writing, signed and acknowledged by him and delivered to the Trustees....”

The trial court found, as a fact, that the letter was not a revocation of the trust, nor even an attempt to do so, and we do not view that finding as clearly erroneous. Md. Rule 1086.

Although appellant’s arguments show ingenuity, they also show signs of strain. The simple question here is what did the testator intend when he executed the will and trust on the same day. While we are, upon occasion, concerned when highly technical interpretations are used to ascertain a layman’s intent, here not only was the testator a lawyer, presumably knowledgeable regarding the instruments he executed, but he was represented by another lawyer as well. It is not unreasonable to assume that these two lawyers were cognizant of statutes then extant, enacted and reenacted. Nor is it unreasonable to view a letter asking for custody of insurance policies from a banker-trustee as something less than a revocation of a trust containing formal provision for revocation. We will not upset the planning of an estate by interpreting a clause of the will too technically and in accordance with an old common law rule which has been superseded by statutes enacted in light of contemporary estate and inheritance tax considerations.

Judgment affirmed.

Costs to be paid by appellant.

      . See Hageman v. Cleveland Trust Company, 343 N.E.2d 121, wherein the Supreme Court of Ohio reached a similar result solely on the basis of incorporation by reference bf the trust instrument.

      . We find it unnecessary to respond to one other contention between the parties. Because Estates and Trusts Art., § 11-105 appears dispositive of the case if the definition therein, of “death benefits” includes testamentary bequests, appellees would have us interpret the definition in § 11-105 (a) broadly enough to include such bequests. Appellant, apparently anticipating that argument, contends in her brief that the Legislature intended the section to apply only to those benefits payable to trusts as a result of death that were derived from collateral sources such as insurance, pensions, retirement annuities, profit-sharing plans, etc. Since the result we have reached does not require our answer, it will await another day. Hopefully, by then, the Legislature will have reviewed § 11-105 in light of 8 4-411 and coordinated the two sections to provide a single standard and procedure for leaving “death benefits,” however defined, to unfunded inter vivos trusts.