author: Ross, J.,

text:
    BYRON LASKY & ASSOCIATES, INC. et al. v. CAMERON-BROWN COMPANY et al.
    [No. 1329,
    September Term, 1975.]

      Decided October 6, 1976.

    The cause was argued before Frederick J. Singley, Jr., and Marvin H. Smith, Associate Judges of the Court of Appeals, and David Ross, Associate Judge of the Eighth Judicial Circuit, all specially assigned.

      Ronald Hirschel, with whom were Ira C. Wolpert and Deckelbaum, Wolpert & Ogens on the brief, for appellants.

      D. Clifford Crook, III, with whom was Robert L. Gorham on the brief, for appellee Cameron-Brown Company. David MacDonald, with whom were MacDonald & Manoogian on the brief, for other appellee.
   Ross, J.,

delivered the opinion of the Court.

Resolution of the central issue in this case requires the first appellate construction of Rule 582 which was added to 'the Maryland Rules July 1,1974 and reads as follows:

“RULE 582. VOLUNTARY DISMISSAL.
a. Court Order When Notice Required.
A party may dismiss his action, claim, counterclaim, cross-claim or third-party claim only with leave of court. The order of court shall specify whether the dismissal is with or without prejudice. Notice of an opportunity to object to the dismissal shall be given to any other party who has separately appeared. The notice shall be in the manner the court directs or approves.
b. Costs.
Subject to the provisions of § 7-202 (b) of the Courts Article and unless otherwise provided by order of court, the dismissing party is responsible for all costs as to the action or part dismissed.”

After hearing on plaintiffs’ (appellants’) motion to dismiss without prejudice, the bill of complaint was dismissed with prejudice over plaintiffs’ objection on the theory that § a gave the chancellor discretionary power to do so even though there had been no hearing and determination on the merits. We hold that § a does not give the chancellor discretionary power and therefore reverse.

The appellant corporations are general partners in a partnership which executed a deed of trust securing loans made to the partnership by the appellees to finance development of and residential construction on the entrusted land in Crofton, Maryland. The appellants also executed agreements guaranteeing completion of and payment for the residential construction. The bill of complaint sought an injunction against foreclosure under the deed of trust, a declaration that the deed of trust was null and void, and general relief. It was alleged in the bill that following a default under the deed of trust the appellees had “entered into an oral modification of said construction lending agreement resulting in a joint venture * * * for profit” pursuant to which development and construction were to continue and that the appellees had precipitated the default for which the foreclosure was sought by withholding payments they had agreed to make.

A petition for ex parte and interlocutory injunctions was filed with the bill of complaint on May 15,1975. On the same day an order was entered ex parte enjoining foreclosure and setting the case for hearing on the ex parte injunction on May 23,1975. See Maryland Rules BB72 and W76 b. Hearing on the ex parte injunction and the application for an interlocutory injunction began on Friday, May 23, and concluded Monday, May 26, 1975. On May 27, 1975 an order was entered dissolving the ex parte injunction and denying the application for an interlocutory injunction. Over appellees’ opposition the chancellor, on June 10, 1975, entered a stay of the May 27 order on condition that a bond in the amount of $129,162.00 be filed. No bond was filed.

There were no further proceedings until September 26, 1975 when appellants filed a “Motion To Dismiss Without Prejudice Or In The Alternative To Stay Proceedings.” The memorandum of points and authorities filed with the motion explained that appellants had filed an action at law in the Circuit Court for Montgomery County seeking damages from appellees for breach of contract and fraud and the appellees had moved to dismiss on the ground that the instant action, which involved the same subject matter, was pending in Anne Arundel County. The appellees’ motion in the Montgomery County action was taken under advisement pending action by the Anne Arundel County Court on the appellants’ application for dismissal or stay. The appellants’ motion was expressly filed pursuant to Maryland Rule 582. and requested that the “Court dismiss this action only without prejudice.”

In their “opposition” to the motion to dismiss the appellees alleged that appellants had filed three law actions in Montgomery County all involving “essentially the same causes of action as alleged in this case.” At the hearing on the motion November 21, 1975, they urged the chancellor either to dismiss with prejudice or to set the case for prompt trial on the merits. An order dismissing the action “with prejudice” was entered November 24.

At the core of appellees’ position is the contention that Maryland Rule 582 a gives an equity court discretionary power to dismiss an action with prejudice over a plaintiffs objection even though there has been no hearing on the merits. A careful reading of the rule discloses no express grant of such a power. Therefore, the question is whether the power is granted by implication.

A dismissal with prejudice is a final adjudication and it is fundamental that an action can be finally adjudicated over objection of the plaintiff only after a hearing on the merits or through imposition of sanction for default or conduct proscribed by law. Cross v. Cohen, 3 Gill 257 (1845); Royston v. Horner, 75 Md. 557 (1892); Fledderman v. Fledderman, 112 Md. 226 (1910); Mendelis v. Broening, 168 Md. 488 (1935); Bailey v. Bailey, 181 Md. 385 (1943); Wooddy v. Wooddy, 270 Md. 23 (1973); Corey v. Tuttle, 144 N. E. 230 (Mass. 1924); Bissell v. Village of Williamsville, 254 N.Y.S. 33 (1931); Mayflower Industries v. Thor Corp., 86 A. 2d 293 (N.J. Super. 1952); Kelley v. Mallory, 277 P. 2d 767 (Ore. 1954); Ensher v. Ensher, Alexander & Barsoom, Inc., 9 Cal. Rptr. 732 (Dist. Ct. of App. 3rd Dist. 1960).

A rule expressly authorizing discretionary dismissal with prejudice over objection of the plaintiff and before there has been a hearing on the merits or some default or proscribed conduct by the plaintiff would be open to serious constitutional challenge. Consider Articles 20 and 23 of the Maryland Declaration of Rights and the Due Process Clause of the Fourteenth Amendment to the United States Constitution. Certainly such a power should not be lightly read into a rule by implication.

Maryland Rule 2 a provides that “[t]hese Rules shall be interpreted as declaratory of the practice and procedure as it existed prior to their adoption except insofar as is otherwise expressly provided or they are inconsistent therewith, or as may result from necessary implication.” The practice and procedure with respect to voluntary dismissal in equity as it existed prior to adoption of Rule 582 was succinctly stated in Camden Sewer Co. v. Mayor and City Council, 157 Md. 175 (1929) at 184:

“It appears, therefore, to be well settled that when equity proceedings have progressed to such a point as to entitle the defendant to affirmative relief, or where, as stated by Chancellor Bland, [Hall v. McPherson], he becomes virtually clothed with the rights of an actor, the right of the complainant to dismiss as a matter of course ceases. We are of the opinion that ordinarily and as a general rule the complainant is master of his own litigation and has the right to dismiss his proceedings at any time up to a final determination of the case, by following the approved practice of making application to the court for leave so to do; but that when at any point of the proceedings the defendants become entitled to affirmative relief which it is proper for them to enforce in the proceedings then pending, the complainant no longer, as of course, has the right to dismiss * * *.” (Emphasis added.)

Maryland Rule 582 is no more than a codification of this long standing practice. The first sentence of § a merely reiterates the rule that leave of court is necessary for voluntary dismissal. Camden Sewer and Potomac Edison Co. v. Public Service Commission, 165 Md. 458 (1933), make it clear that the requirement of prior court approval does not in itself limit the right of the plaintiff to dismissal. The obvious reason for the requirement is to prevent unilateral dismissal of cases in which a defendant has acquired a right to affirmative relief. In any event, the most that can be implied from a requirement of court approval is the power to deny the requested relief. It is clear that discretionary power to dismiss with prejudice cannot be implied from the first sentence of § a.

The purpose of the second sentence of § a, which requires that the order “specify whether the dismissal is with or without prejudice,” is to eliminate the doubt which sometimes arises when the order of dismissal fails to state whether it is with or without prejudice. See, e.g., Fledderman v. Fledderman, supra. Not all dismissals prior to hearing on the merits are without prejudice. Voluntary dismissal with prejudice is the traditional entry upon settlement before trial. See the first note to Maryland Rule Appendix Form 21 b. There may be other circumstances in which a party may wish to dismiss his claim with prejudice. See, e.g., Murphy v. Board of County Commissioners, 13 Md. App. 497 (1971). Thus, there is no basis for implication of a discretionary power to dismiss with prejudice from the second sentence of § a. No other part of Maryland Rule 582 is even arguably suggestive of such an implied power. The notice provision complements the requirement of court approval and is part of the scheme to avoid unilateral dismissal of cases in which a party other than the dismissing party has a right to affirmative relief which he wishes to pursue in that action.

There has been no healing on the bill of complaint in this case. Before the chancellor the appellants argued that the foreclosure proceedings had rendered moot their requests for purely equitable relief and that the remaining claims for damages could more suitably be litigated in the law action in Montgomery County. The appellees countered that the remaining claims could be litigated under the prayer for general relief or an amended bill of complaint and insisted they had “a right to a final determination on the merits in this suit” which would serve to bar prosecution of the Montgomery County actions. They argued that the favorable rulings made by the chancellor at the two-day preliminary injunction hearing demonstrated that appellants’ claims were without merit and gave them rights which would be prejudiced by voluntary dismissal; therefore under Camden Sewer, Potomac Edison, and Shapiro v. Ryan, 283 Md. 82 (1963) the appellants no longer had the right to dismiss without prejudice.

The appellees’ trial court argument suggests two points. The first point, which they have not pursued on appeal, is that an equity court may make a final adjudication on the basis of testimony taken at a preliminary hearing without holding a further hearing on the merits. See the cases, collected in 89 A.L.R. 33 and 126 A.L.R. 288. The order of dismissal, which was prepared by appellee Cameron Brown Investment Group’s attorney, contains the recitation, inter alia, that the order was entered “upon all other proceedings herein.” We need not decide whether Maryland law permits final adjudication on the basis of preliminary hearing evidence because the question was not raised on appeal, Pride Mark Realty v. Mullins, 30 Md. App. 497 (1976), and, in any event, the transcript of the injunction hearing was not included in the record transmitted from the trial court. McAlily v. Bailey, 18 Md. App. 413 (1973); Callahan v. Dean, 17 Md. App. 67 (1973).

The second point is that the preliminary injunction hearing conferred rights on the appellees which would be prejudiced by dismissal before final adjudication and thus the appellants no longer have the right to dismiss without prejudice. Even if appellees’ position were sound, at most they would be entitled to denial of dismissal, not to dismissal with prejudice. Their position, however, is not sound; a defendant in an equity action may prevent a voluntary dismissal only when he has acquired a right to affirmative relief or, in the language of Chancellor Bland, has become “virtually clothed with the rights of an actor.” Camden Sewer Co. v. Mayor and City Council of Salisbury, supra; Potomac Edison Co. v. Public Service Commission, supra; cf. Shapiro v. Ryan, supra, at 91. The appellees acquired no right to affirmative relief as a result of the injunction hearing. The only prejudice they will suffer is the possible inconvenience and additional expense of defending another action concerning the same subject matter. Under the present practice, this is not sufficient to defeat a plaintiffs right to dismissal. Allied Chemical and Dye Corporation v. Steel and Tube Co. of America, 127 A. 414 (Del. Ch. 1925) is directly in point and the language of that court at page 416 is apposite here:

“These exceptions are based upon the principle that a complainant should not be permitted to dismiss his bill when such action would be prejudicial to the defendant. But this does not mean that it is within the discretion of the court to deny the complainant this privilege under any circumstances, where it might think such dismissal would work a hardship to the defendant, as, for example, where it might burden him with the trouble and annoyance of defending against a second suit; but it means that if, during the progress of the case, the defendant has acquired some right, or if he seeks or has become entitled to affirmative relief, so that it would work an actual prejudice against him to have the case dismissed then, the complainant will not be permitted to dismiss his bill.”

In this Court the appellees contend that the dismissal with prejudice was proper because all issues raised by the bill were finally determined in the separate foreclosure case. They now take the position that the only relief sought by the bill was (1) an injunction against the foreclosure sale and (2) a declaratory decree that the deed of trust was null and void. Their argument is that the prayer for injunctive relief was rendered moot by the foreclosure sale which took place after dissolution of the ex parte injunction and that final ratification of that sale was a final determination of the validity of the underlying deed of trust. In essence the appellees ask us to uphold the final adjudication below on the ground that the foreclosure case is res judicata as to all issues in this case.

The record in the foreclosure case was not introduced in evidence and although the appellees argue here that the chancellor had the power to take judicial notice of those proceedings, they did not ask him to do so. But even had the request been made, the chancellor could not have taken judicial notice of the separate foreclosure proceedings. It is stated in Fletcher v. Flournoy, 198 Md. 53 (1951), at 60-61 that:

“ ‘The general rule undoubtedly is that a court will not travel outside the record of the case before it in order to take notice of the proceedings in another case, even between the same parties, and in the same court, unless the proceedings are put in evidence; and the rule is sometimes enforced with considerable strictness. * * * But in exceptional cases, as high authority shows, the dictates of logic will yield to the demands of justice, and the courts in order to reach a just result, will make use of established and uncontroverted facts not formally of record in the pending litigation.’ ”

As was true in Fletcher v. Flournoy, “[i]n the instant case, the demands of justice do not suggest an exception to settled rules.” 198 Md. at 61; cf. James v. State, 31 Md. App. 666 at 685. If properly asserted and proved the appellees are entitled to use the final order in the foreclosure case as a defense to all claims barred by that adjudication under the rule of res judicata. Their ultimate objective is to bar further prosecution of the Montgomery County cases. The final order in the foreclosure cases can just as easily be pleaded in the Montgomery County cases as a final order from this case. There is no additional burden placed on the appellees by requiring them to assert the foreclosure order directly in the Montgomery County cases.

On the other hand, it would be unjust to enter a final order in this case based solely on the foreclosure order and thereby adjudicate without hearing any issues which were or could have been raised but which are not barred under the rule of res judicata by the foreclosure order. In the bill of complaint in this case the appellants allege a contract with the appellees and a breach of that contract by the appellees. The appellees did not test the legal sufficiency of the bill of complaint by demurrer but instead filed an answer denying the factual allegations. Appellants contend they are entitled to trial on the merits of the issues joined on the bill and answer but that since their request for injunctive and declaratory relief has been rendered moot, it would be more practical to try the claims for damages at law than in equity. On the record in this case, we cannot say as a matter of law that the foreclosure action is res judicata to all claims made in the bill of complaint. We express no view as to the merit of appellants’ claims against the appellees. We hold only that the chancellor lacked power to dismiss the bill of complaint with prejudice on appellants’ motion to dismiss “only without prejudice.” See Sargent v. Lady, 244 Md. 552 (1966).

The appellees complain that they are being harassed by the filing of the Montgomery County actions and that the appellants have ulterior motives in keeping litigation open between the parties. Appellants vigorously deny these assertions. We express no view with respect to these conflicting allegations. However, nothing in this opinion should be read as an expression of approval or condonation of unnecessary filing of multiple actions involving the same subject matter. Existing law permits voluntary dismissal of this case at the present stage of the proceedings. The remedy for actions brought in bad faith or without substantial justification is provided by Maryland Rule 604 b. If present rules too freely permit dismissal, the remedy is amendment of the rules.

Although appellants are entitled to dismissal without prejudice, they did not insist on this right but sought alternatively a stay of further proceedings. On remand the chancellor may dismiss without prejudice or he may grant the stay requested.

Reversed and remanded for further proceedings in accordance with this opinion, costs to be paid by appellees.

       Appellee Cameron-Brown Company stated at page 16 of its brief that Camden Sewer “is merely a reaffirmation of the standard equity practice * ** * that a complainant was free to dismiss his cause of action against a defendant without leave of court when the equity proceedings had not progressed to such a point as to entitle the defendant to affirmative relief * * On the contrary, in Camden Sewer the defendant had not become entitled to affirmative relief and the Court of Appeals said: “The proper practice requires that the complainant make application to the court for leave to dismiss, and this practice should be followed; * * * ” 157 Md. at 182. The dismissal was upheld on the basis of the chancellor's subsequent ratification of the order which had been filed by the plaintiff without the requisite prior leave of court.


source: Caselaw Access Project

author: Gilbert, C. J.,

license: Public Domain

text:
    BRUCE EDWARD WENTWORTH v. STATE OF MARYLAND
    [No. 1352,
    September Term, 1975.]

      Decided October 7, 1976.

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

      Jack F. McGarvey, Assigned Public Defender, for appellant.

      Donald R. Stutman, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Sandra A. O’Connor, State’s Attorney for Baltimore County, and Brian C. Covahey, Jr., Assistant State’s Attorney for Baltimore County, on the brief, for appellee.
   Gilbert, C. J.,

delivered the opinion of the Court.

The direct and indirect legal assault upon the Patuxent Institution concept continues like the never ending beating of the surf upon the shore. In this case, we are called upon to decide whether error was committed when certain challenged evidence was admitted into a defective delinquency hearing held in the Circuit Court for Baltimore County.

At a jury trial to determine the defective delinquency vel non of Bruce Edward Wentworth, the State, over objection, was permitted to elicit from a Patuxent staff psychologist, (1) that, in the psychologist’s opinion, Wentworth was a defective delinquent, (2) the extent of Wentworth’s arrest record, including those offenses for which he had been convicted, and (3) Wentworth’s juvenile involvement with the law.

We agree with the appellant Wentworth that the evidence was improperly admitted, and for the reasons stated infra we reverse the judgment of the circuit court and remand the matter for a new hearing.

The record reveals that the psychologist read to the jury the contents of the “Diagnostic Staff Report” that had been submitted to the Court by the Patuxent Institution. The witness was then asked: “What is your opinion today within a reasonable degree of certainty as to whether . . . the Defendant, Bruce Wentworth, is an individual who has demonstrated a persistent, aggravated, antisocial, or criminal behavior, so as to evidence a propensity for criminal activity, and is either of such intellectual deficiency, or emotional unbalance, or both, so as to clearly demonstrate an actual danger to society?” The witness responded, “I believe he meets that definition.”

Subsequently, the psychologist was asked by the Assistant State’s Attorney, “In your opinion then, can you state whether or not the Defendant ... is a defective delinquent as defined by the applicable law in Maryland today?” After the trial judge overruled an objection, the witness responded, “In my opinion, Mr. Wentworth does meet the definition of a defective delinquent.”

Recently, in State v. Williams, 278 Md. 180, 361 A. 2d 122 (1976), the majority of the Court of Appeals, while seemingly sanctioning the practice of permitting a psychologist “to relate to the jury the recommendation in the Patuxent report that . . . [the alleged defective delinquent’s] confinement be continued,” flatly held:

“.. . [A] psychologist, though otherwise qualified as an expert witness, may not render an opinion on the ultimate issue of defective delinquency, whether it be at the initial hearing or for the purposes of redetermination.” 278 Md. at 187.

Williams is dispositive of the first issue presented by Wentworth and requires reversal of the instant case.

Because it is apparent that this case will, in all probability, be retried, we shall, for the guidance of the trial court, pass upon the other two issues raised by appellant.

As we have previously indicated, the psychologist was allowed, despite appellant’s strenuous objection, to read to the jury the full extent of the appellant’s involvement, as an adult, with the police. The “record” of the appellant as related at trial shows the following:

Date Disposition
Aug., 1969 Armed Robbery & Conspiracy Not Guilty
Sept., 1969 Burglary No Disposition Shown
July, 1970 Disorderly Conduct Probation Before Verdict and Fined $10 & Costs
Feb., 1971 Possession of Deadly Weapon & Assault by Threat No Disposition Shown
March, 1972 Assault by Threat 9 Months
Feb., 1973 Assault, Openly Carrying Deadly Weapon Year
July, 1973 Grand Larceny Nol Pros.
Nov., 1973 Larceny after Trust Nol Pros.
Jan., 1974 Manslaughter 8 Years

In addition, the witness recounted that appellant had “allegedly” been “. . . involved in an incident . . . where several lockers were broken into.”

Counsel for the appellant objected to the revelation of the prior arrests which admittedly did not result in convictions. The trial judge, in overruling the objections, stated in pertinent part:

“And I will overrule . . . [the objection] because this is a very interesting point, there has been no case to our knowledge that has ruled on it. Some have skirted the issue, but I think it is proper to put it on, because they are items on which the people at Patuxent based their determination on [sic], and I think if there is any danger, it could easily be cured by a simple question or cross examination . . . .”

This Court, in Arbaugh v. Director, 27 Md. App. 662, 341 A. 2d 812 (1975), cert. denied, November 3, 1975, condemned the use of a pending indictment as evidence in a defective delinquency case. Moreover, in Arbaugh, we interpreted the statement from Weeder v. State, 274 Md. 626, 632, 337 A. 2d 67, 70 (1975), that “. . . the report of the staff should include relevant information from the study made by the social worker, a summary of the inmate’s prior arrests and convictions ...” (emphasis added) to mean “. . . arrests upon which convictions have been grounded.” 27 Md. App. at 664.

Judge Lowe, writing for the Court in Chenault v. Director, 28 Md. App. 357, 350-61, 345 A. 2d 440, 443 (1975), stated:

“. . . [E]vidence of an arrest (as distinguished from actual acts of misconduct) is not relevant, 3A Wigmore on Evidence, sec. 980 a, and if admitted is not harmless error because of its potentially prejudicial effect upon a jury.”

The State, in the instant case, notes, however, that the Court of Appeals, in Davis v. Director, 243 Md. 734, 736, 223 A. 2d 262, 263 (1966), a short per curiam opinion, said:

“With respect to the arrest for homosexuality which appeared in the medical report read by Dr. Boslow, in view of the civil nature of these proceedings and the admissibility of evidence of prior antisocial behavior (see Rice v. Director, 238 Md. 137, 207 A. 2d 616 .. . [(1965)]), and since the arrest did in fact occur and applicant had ample opportunity to show that he was found innocent of the charge, there is no showing of prejudice here.”

From the quoted language, the State concludes that evidence of arrest, even sans convictions, is admissible. We, however, have a different view. Initially, we do not read Davis in the same light as does the State. In Davis, there was but one arrest which the Court concluded did not prejudice the jury, while in the case now before us, there were several arrests upon which there was no conviction, and, in fact, one instance where there was not even a charge, but merely a bald allegation. We think the totality of the “police record” could not help but inflame the jury against appellant.

We further note that the above-quoted statement from Davis relies for its support upon Rice v. Director, supra. Rice, however, does not speak of arrests but rather the admission of “juvenile offenses” which we infer were findings of juvenile delinquency under the then existing juvenile law. Nowhere in Rice does it appear that the Court held that all prior arrests, with or without convictions entered thereon, are admissible in a defective delinquency proceeding.

Further examination of the case law by the Court of Appeals compels us to conclude that the language we have quoted from Davis simply did not mean what the State takes it to mean. See, e.g., Schlatter v. Director, 238 Md. 132, 207 A. 2d 653 (1965), wherein it is said a juvenile record (again, inferentially, one of juvenile delinquency) is admissible. Schlatter cites Bullock v. Director, 231 Md. 629, 190 A. 2d 789 (1963), which seems to hold that “. . . records of the juvenile and magistrate’s courts” are admissible as “. . . [e]vidence of prior anti-social behavior . . .” and cites Height v. State, 225 Md. 251, 170 A. 2d 212 (1961). The Court, in Bullock, was speaking, not simply of petitions filed against the juvenile, but rather of actual findings of juvenile delinquency. The reference to “records of the . . . magistrate’s courts” means, to us, convictions in the magistrate’s court, not merely arrests. The citation of Height in Bullock is puzzling because Height holds that the then Md. Ann. Code art. 31B, § 15 precluded “convictions” in magistrates’ courts from being counted under § 6 (a)(5) as a conviction in a criminal court.

Although we have endeavored to point out that the basis for the Davis quotation is more hazy than clear, and more flimsy than solid, we are satisfied, in any event, that the admission into evidence of the appellant’s arrest record was, in any event, unlike Davis, prejudicial.

We reiterate what we said in Arbaugh v. State, supra, that evidence of arrest is not admissible in a civil case. Bonaparte v. Thayer, 95 Md. 548, 559, 52 A. 496, 499 (1902), followed in Nelson v. Seiler, 154 Md. 63, 68, 139 A. 564, 566 (1927), makes unmistakable that, “. . . the Courts of this State have always recognized the distinction pointed out in 1 Greenleaf on Ev. (16 ed.) sec. 461, between actual misconduct, itself, and the charge of misconduct; and have excluded the latter.” We further emphasize that the Weeder, supra, use of the phrase “prior arrests and convictions” pertains only to those “arrests upon which convictions have been grounded.” Arbaugh, supra at 664.

A defective delinquency proceeding being a civil case, McDonough v. State, 253 Md. 547, 253 A. 2d 517 (1969); Director v. Daniels, 243 Md. 16, 221 A. 2d 397 (1966); Bush v. Director, 22 Md. App. 353, 324 A. 2d 162, cert. denied, 272 Md. 745 (1974), the rule of Bonaparte v. Thayer, supra, is both apposite and dispositive of the issue.

We now consider the matter of the admission of the appellant’s juvenile record into evidence. The trial judge reasoned that Rice v. Director, supra, and Gray v. Director, 245 Md. 80, 224 A. 2d 879 (1966), authorized the admission of such records. While it is true that the Court, in Rice, Gray, Bullock, and Schlatter, did say that juvenile delinquency records are admissible in defective delinquency cases, the Legislature, in its wisdom, by Ch. 554, Laws 1975, modified those Court holdings. Md. Ann. Code, Courts & Judicial Proceedings Art., § 3-824 (b), effective July 1, 1975, provides:

“An adjudication and disposition of a child pursuant to this subtitle are not admissible as evidence against the child in any criminal proceeding prior to conviction, or in any other proceeding.” (Emphasis added).

The words “or in any other proceeding” were added to the statute by the 1975 amendment. The trial judge acknowledged that the language of the present statute is different from that in use when Rice and Gray and similar cases were decided, but he thought that the Legislature did not intend “to preclude this type of admission in cases involving Patuxent determinations.” We, however, believe that the use of the phrase “or in any other proceeding” specifically forbids the introduction into evidence of the juvenile record in any case except a criminal case and only then after conviction. Obviously, the permitted use of the juvenile record after conviction is for the edification of the trial judge in his approach to employing a proper disposition.

Apparently, at the request of the Governor’s Commission on Juvenile Justice, House Bill 969 was introduced at the 1976 Session of the General Assembly. Embodied in that Bill was a substantial change which would have allowed the admission of a juvenile record into evidence in a defective delinquency hearing. Although H.B. 969 was enacted by Ch. 463, Laws 1976, that portion of the Bill which sought to lift the ban on juvenile records as evidence in defective delinquency cases was stricken from the Bill by amendment before enactment. We infer from the deletion from H.B. 969 of the proposed amendment to Courts Art., § 3-824 (b) that the Legislature was of the opinion that it had made vividly clear ifs stand by the enactment of Ch. 554, Laws 1975, and that it had no intention to retreat therefrom.

One of the avowed legislative purposes for the juvenile procedures act is set forth in Courts Art., § 3-802 (a)(2):

“To remove from children committing delinquent acts the taint of criminality and the consequences of criminal behavior.. ..”

Subsection (b) mandates that the act is to be construed liberally so as to effectuate its purposes.

Keeping in mind the expressed intent of the General Assembly as stated in Md. Ann. Code, Courts and Judicial Proceedings Art., § 3-802, and the implicit intent properly deducible from the Legislature’s deletion from H.B. 969 of the proposed change to Courts Art., § 3-824 (b), we hold that Courts Art., § 3-824 (b) must be read as proscribing not only the admission into evidence of a juvenile record prior to conviction in a criminal case, Carroll v. State, 19 Md. App. 179, 310 A. 2d 161 (1973), but as prohibiting its use at any time in any other type of proceeding, including defective delinquency cases.

The admission of the juvenile delinquency record of a person into evidence, except after conviction in a criminal case, violates the tenets of Courts Art., § 3-824 (b) and is reversible error.

Judgment reversed.

Case remanded for a new hearing.

Costs to be paid by Baltimore County.

      . We note in passing that the psychologist-witness was not the psychologist that signed the Staff Report, nor had he examined Wentworth. The testimony of the witness was based solely upon his review of the institutional records and reports.

      . A defective delinquent is defined in Md. Ann. Code art. 31B, § 5.

      . The Court adopted the opinion by a vote of 4-3.

      . But see Comm’r of Motor Vehicles v. Lee, 254 Md. 279, 255 A. 2d 44 (1969), in which it was'held that such a disposition is improper. A fine and probation before verdict are patently inconsistent.

      . Imposition of sentence occurred the same day appellant was released from the March, 1972, sentence. No explanation is given as to how or why the 9 month sentence was extended to eleven (11) months.

      . The offense for which appellant is presently incarcerated.

      . This matter seemingly occurred in November, 1972, while appellant was on a work-release program, but appellant was not charged with any offense.

      . Current Md. Ann. Code art. 31B, § 15 provides that a conviction and sentence in the District Court is a conviction within the meaning of § 6 thereof.

      . H.B. 969 would have amended Courts Art., § 3-824 (b), so as to provide:
      “An adjudication and disposition of a child pursuant to this subtitle are not admissible as evidence against the child:
      (1) In any criminal proceeding prior to conviction; or
      (2) In any adjudicatory hearing on a petition alleging delinquency; or
      (3) In any civil proceeding not conducted under this subtitle except proceedings under Article 3IB."

      (Emphasis added).

      . Codified as Courts Art., § 3-824 (b).


author: Thompson, J.,

text:
    PATRICK J. FINNEGAN v. STATE OF MARYLAND
    [No. 58,
    September Term, 1976.]

      Decided October 7, 1976.

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

      Alan W. Bernstein, Assigned Public Defender, with whom were Goldstein & Bernstein on the brief, for appellant.

      Gilbert Rosenthal, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Warren B. Duckett, Jr., State’s Attorney for Anne Arundel County, and Ronald M. Naditch, Assistant State’s Attorney for Anne Arundel County, on the brief, for appellee.
   Thompson, J.,

delivered the opinion of the Court.

Patrick J. Finnegan, the appellant, was convicted by Judge Matthew S. Evans, presiding in the Circuit Court for Anne Arundel County without a jury, of armed robbery and assault with intent to murder. He was sentenced to consecutive terms of 5 and 15 years. On this appeal Finnegan contends that the trial court erroneously shifted to the appellant the burden of proof of reducing the crime of assault with intent to murder to a justifiable act or to simple assault. No contention is raised as to the robbery conviction.

The evidence produced by the State established that on the night of July 9, 1974, the appellant and two companions went to the Club Maywood in Edgewater. At the club they met Martin McCarthy and after closing time went to McCarthy’s home. The appellant and McCarthy began playing cards and the two other men fell asleep. They were awakened by a loud noise from the kitchen where they observed the appellant strike McCarthy in the head with a hammer. McCarthy fell to the floor, whereupon the appellant proceeded to strike the victim several more times on the skull. The appellant then ordered one of his companions to take the money out of the victim’s pockets. This order was complied with and the three men left the house.

The appellant testified that the victim had made sexual advances towards him causing a struggle to ensue. During the course of the struggle the victim grabbed the hammer, which the appellant took from him. He then struck the victim with it in self-defense. The appellant denied any knowledge of the robbery.

When rendering the verdict, the trial judge stated in relation to the issues presented in the appeal:

“As to the seventh count, [assault with intent to murder] the testimony of the State, of course, is to the effect that these two boys awakened and saw the victim on the floor and this defendant standing over him hitting him with the hammer, and the man on the floor, the victim, asking for mercy, in other words, please stop, and so forth, and then several more blows were struck. We have the testimony of the defendant that this was really in self-defense, that this man had made this pass or attack upon him and attempting to force him into this sexual act, which he refused to do, and as a result, the man became enraged and attacked him. Now, assuming this to be true, in self-defense, you’re in imminent danger of attack and there’s no way to escape, you have the right to use reasonable force to overcome this attack. And assuming from the defendant’s standpoint that this was an attack by the victim and he was acting in self-defense, the law states that you have to use reasonable force, you can’t use force greater than necessary to protect yourself. First, if you have the opportunity to escape, you must escape and not shed blood. If the attack is imminent you have the right to use force, only the force that is necessary. Now, I think the real question here is how much force was necessary to repel the victim? It’s true, he was a much older man, he was twenty or twenty-five pounds lighter, he’d been drinking, even if his passion was aroused it’s a question of how much force was necessary to repel this man. Even by the defendant’s own testimony he had hit this man a maximum of maybe five times. We have the testimony of the other two witnesses that when they awakened the man was on the floor, and certainly, if he was on the floor he had an opportunity to escape, but more blows were struck even though he denies that the other two saw these two blows. And the — really, the force that was used was extremely excessive, under any circumstances. This hammer went through this man’s skull, he had trouble pulling the hammer out from the one blow, and it’s just fortunate that the man’s alive today. Now, as to murder, it’s true that by the pointing of a weapon or a deadly weapon at a vital part of the body it infers malice, I mean, you don’t have to say Tm mad at you’, like that, that is not the legal sense of malice, but as many cases have held that where you use a weapon and point it at a vital part of the body that that infers malice, and in this case, we have a hammer which in the manner it was used was a very deadly weapon, and it struck the man’s head, and I don’t think it’s too important whether he hit him on the side of the head or what part of the head was hit, whether it was inches this way or inches that way. His head, according to the hospital reports was — well, in terrible shape, to say the least, from these blows, and they were very obvious, there were dents in his skull, there were holes in his skull, and there is little question that — in the eyes of the Court that malice was inferred. Of course, malice is a necessary element of murder, murder in the second degree. Murder in the first degree, you’d have to have premeditation, and so forth, but I don’t think under the facts of this case that would be true, but I think it is — at least, if the man had died as a result, he has not died, but if he had died as a result of the blows it would be murder in the second degree.”

Initially we reiterate the mandates of Mullaney v. Wilbur, 421 U. S. 684, 95 S. Ct. 1881, 44 L.Ed.2d 508 (1975), and Evans v. State, 28 Md. App. 640, 349 A. 2d 300 (1975), aff'd, 278 Md. 197, 362 A. 2d 629 (1976), that it is unconstitutional to relieve the State from the burden of proving beyond a reasonable doubt any element of the crime charged including the absence of justification, excuse or mitigation. It is also unconstitutional to impose upon the accused the burden of proving any defense, provided the evidence raises such an issue. This applies to a conviction of assault with intent to murder just as surely as it applies to a conviction for some form of unlawful homicide itself. Blake v. State, 29 Md. App. 124, 126, 349 A. 2d 429 (1975). A verdict rendered in a court trial will bear the same scrutiny as a trial by jury if the judge, in the course of rendering his decision, indicates that he relied upon this now unconstitutional burden of proof. Law v. State, 29 Md. App. 457, 349 A. 2d 295 (1975).

In his rendition of the verdict the trial judge repeated several times that the pointing of a deadly weapon at a vital part of the body supports an inference of malice. As pointed out in Evans, supra at 704, this is an overly broad employment of that inference. The directing of a deadly weapon at a vital part of the body infers an intent to kill. Malice, however, includes not only an intent to kill but the absence of both excuse or justification and mitigating circumstances. This inartistic choice of words does not necessarily indicate that the trial judge relied on an unconstitutional presumption of malice. These words must be viewed in context with the total rendition of the verdict. State v. Grady, 276 Md. 178, 345 A. 2d 436 (1975).

As in the case of Mullaney v. Wilbur, supra, the appellant testified that he was homosexually attacked by the victim. His testimony raised the defense of self-defense, thus generating the issues of both justification or excuse and mitigating circumstances. In rendering his decision the trial judge specifically stated that the victim was a “much older man, he was twenty or twenty five pounds lighter, he’d been drinking . . . [a]nd the — really, the force that was used was extremely excessive, under any circumstances.” He went on to add that if the victim “had died as a result of the blows it would be murder in the second degree.” From this it is clear to us that the trial judge, without relying on any unconstitutional presumption, made a finding, supported by the evidence, that there was an absence of justification, excuse, or mitigating circumstances.

In order for the appellant to have been justified in his actions he must have had reasonable grounds to believe and, have in fact believed, himself to be in apparent imminent or immediate danger of death or serious bodily harm from the victim, but the force used must not have been unreasonable or excessive. Chandler v. State, 7 Md. App. 646, 256 A. 2d 695 (1969). There can be no question that the trial judge considered the beating of a much smaller and older man who was intoxicated excessive even when he assumed the appellant’s testimony as to the sexual attack to be true. This was a finding of lack of justification. Of course, lack of justification or excuse alone would have been insufficient to make a finding of malice. There must also have been a finding that there was an absence of mitigating circumstances. The last several times that the victim was struck he was down on the floor. When the trial judge found that the force used upon this older and smaller man was extremely excessive under any circumstances it is apparent that he did not believe that the appellant honestly felt threatened by the victim when the final blows were struck. Where one blow may have been adequate to repel this lesser victim, repeated blows to the head with a hammer went way beyond what was necessary for defense. The trial, judge was under no obligation to believe the appellant’s testimony as to the number of blows struck. Rice v. State, 9 Md. App. 552, 267 A. 2d 261 (1970). When he stated that if the man “had died of the blows it would be murder in the second degree,” he found an absence of mitigating circumstances in the final blows. This is, of course, important because it is a valid test for assault with intent to murder in most cases. It is valid in the type of case that we have at bar where the assault is predicated on an actual intent to kill or do grievous bodily harm as opposed to a felony-murder or depraved-heart murder.

“... As a matter of juridical science, any circumstance of substantial mitigation should be sufficient to reduce to manslaughter a killing that would otherwise be murder. Suppose, for example, the defendant thought he was in imminent danger of death and must kill to save himself from being murdered, and that he did kill for that reason. Suppose, also, there was no actual danger to his life at the moment, and the facts fell a little short of reasonable grounds for a belief in such danger. His homicide is not excused; but if the circumstances came rather close to such as would constitute an excuse his guilt is of manslaughter rather than murder, . . .”. (Emphasis added) Perkins, Criminal Law (1st Ed. 1957), at 40. In the instant case the circumstances were not close. In any event this type of question is usually one for the fact finder. Nixon v. State, 204 Md. 475, 479, 105 A. 2d 243 (1954).

Appellant also asserts that both the defense counsel and the State’s Attorney relied on unconstitutional allocations of the burden of proof. He claims that this is another factor which indicates that the trial court was deciding the case under an unconstitutional standard. The record does not reveal that the trial judge relied on the arguments of counsel in determining this case.

Judgments affirmed.

      . “It is sometimes stated that the assault must be ‘committed under circumstances such that, if death ensued, the crime would have been murder in either the first or second degree.’ Davis v. State, 204 Md. 44, 50, 102 A. 2d 816. That statement, true enough for most cases, is, however, too broad. There are at least four types of intent which are adequate to make a resultant death murder. One is the actual intent to kill, sometimes referred to as ‘express malice.’ The other three are sometimes collectively called the various forms of ‘implied malice.’ We catalogued these in Evans v. State, 28 Md. App. 640, 349 A. 2d 300, Part IIE3c:
      ‘Originally, the intent required for murder was the “intent to kill” — the state of mind which we today call “express malice.” The 17th century (and very late 16th century) recognized the need to punish as murder homicides resulting from other life-endangering intents, even though such intents did not involve literally the intent to kill. These additional mental states were added to the mens rea of murder during this period and they are what we today call:
      1) intent-to-do-serious-bodily-injury murder;
      2) felony-murder; and
      8) depraved-heart murder. (Perkins gives this mental state the less emotionally charged and probably better label of “Wanton and Wilful Disregard of Unreasonable Human Risk”).’
      Since assault with intent to murder requires a specific intent of achieving a particular result, it is clear that it is more restricted in its mental elements than would be the resultant murder itself. It would apply where there was an actual intent to kill or where there was an actual intent to do grievous bodily harm. Davis v. State, supra. In both cases, there is an intended evil result above and beyond the general intent to do the dangerous act itself. It would appear equally clear that an assault with intent to murder conviction could not be predicated upon the other two varieties of ‘implied malice’ — felony-murder or the ‘wanton and wilful disregard of unreasonable human risk.’ There is, in either of these situations, no specific intent above and beyond the general intent. If this were not so, every rape, assault with intent to rape, robbery, assault with intent to rob, kidnapping, assault in the course of an escape, etc. would constitute automatically an assault with intent to murder. In this regard, we find highly persuasive Perkins, Criminal Law (2nd Ed. 1969), at 763:
      ‘Murder may be committed without an actual intent to take life. “But to constitute the offense of an assault with intent to murder there must be a specific intent to kill.” Hence it is error to instruct the jury that the same facts and circumstances which would make the offense murder, if death had ensued, will furnish sufficient evidence of intention to convict of assault with intent to murder.’ ”
      Blake v. State, supra at 126 n.1.


text:
    MIRIAM E. KENNEDY v. DAVID E. BETTS and MILTON F. CLOGG, Substitute Trustees
    [No. 65,
    September Term, 1976.]

      Decided October 7, 1976.

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

      William L. Haugh, Jr., and W. Jerome Offutt for appellant.

      David E. Betts and Kevin M. O’Connell, with whom were Betts, Clogg & Murdock on the brief, for appellees.
   Gilbert, C. J.,

delivered the opinion of the Court.

In this appeal, we are asked by appellant, Miriam E. Kennedy, to reverse a holding by Judge Robert E. Clapp in the Circuit Court for Frederick County. Specifically, the appellant seeks to have us decide that a first deed of trust, for her benefit, was not subordinated to a second deed of trust, notwithstanding a subordination agreement executed, with express authority, by the trustees named in the Kennedy, or first, deed of trust.

The appellant sold 20.51 acres of land in April, 1968, to four individuals, and she received a “Deferred Purchase Money Deed or Trust” and a note in the amount of $243,000, which sum represented the unpaid portion of the purchase price. Of significance to this case is the language embodied in the Deed of Trust that provided:

“. . . [T]he trustees, without the necessity of obtaining the prior consent of the Deed of Trust Note holder, shall enter into an Agreement subordinating this Deed of Trust to any and all bona fide construction and/or permanent loan placed upon the herein described premises or any portion or portions thereof . . .”

Five years later the grantors of the Deed of Trust conveyed the Kennedy tract to GSL Associates, Inc. which in turn, through its corporate president, executed a Deed of Trust in the amount of $2,792,250 inuring to the benefit of Capital Mortgage Investments. The trustees named in the Kennedy Deed of Trust, pursuant to the authority conferred upon them by that document, entered into a “Subordination Agreement” on July 2, 1973. The agreement provided in pertinent part:

“. . . [T]he said parties of the first part [the trustees for Kennedy] and the parties of the second part [the trustees for Capital Mortgage Investments] in consideration of the sum of One Dollar and other valuable consideration, agree that the lien of said [Kennedy or first] Deed of Trust . . . shall be subordinate to the lien of said [second or Capital] Deed of Trust . . . , and any and all future advances made thereunder. Said first mentioned [or Kennedy] Deed of Trust other than as hereby subordinated, to remain in full force and effect.”

Default having occurred under the terms of the second or Capital Deed of Trust, the appellees, in their capacity as substituted trustees of the second or Capital Deed of Triist, instituted foreclosure proceedings on April 4, 1975, in the Circuit Court for Frederick County against the property. A public auction sale was held June 23, 1975, and Capital “bought-in” the land at a price of $2,063,000. At that time, forty-two (42) townhouses in various stages of completion were under construction on the encumbered land. After deducting expenses of sale, there was a deficiency of $429,366.54. The sale was ratified by the court on July 21, 1976, and the matter was referred to an auditor.

While the account was pending before the auditor, Kennedy filed a claim in the proceeding for payment of the balance due her under the first Deed of Trust. The auditor, however, in stating his account, disallowed the Kennedy claim on the basis of the subordination agreement of July 2, 1973.

Appellant excepted to the auditor’s report, and the issue was heard before the court. The hearing judge reasoned that the trustees, under the Kennedy or first Deed of Trust, by signing the subordination agreement, were “. . . merely carrying out what Mrs. Kennedy agreed to as part of the consideration as supplied by the purchaser at the time her transaction was entered into with them,” and confirmed the auditor’s report.

Appellant, acknowledging, as she must, that no testimony or evidence was offered in the hearing court, nevertheless asserts that “[s]he was led to believe that her first lien would be fully protected even though the purchaser or its successors were to obtain a superior record title because the funds obtained by the purchaser would be used solely for construction and/or permanent loan purposes.” Who led applicant to so believe, and how it was accomplished, is not revealed by the record. Furthermore, there is no showing as to the extent that the monies obtained under the Capital or second Deed of Trust were utilized for construction or permanent loans.

Because the Kennedy Deed of Trust recites that her trustees were authorized to subordinate her Deed of Trust “to any and all bona fide construction and/or permanent loan[s],” and the record does not reflect to “what extent” the Capital loan was so used, Kennedy argues that we should reverse and remand the matter for further proceedings, thus affording her an opportunity to inquire into the manner in which the Capital loan was utilized.

Appellant here submits that we should follow three New Jersey cases, viz., Cambridge Acceptance Corp. v. Hockstein, 102 N.J. Super. 435, 246 A. 2d 138 (1968); Cambridge Acceptance Corp. v. American National Motor Inns, 96 N.J. Super. 183, 232 A. 2d 692 (1967); and, Albert & Kernahan, Inc. v. Franklin Arms, Inc., 104 N.J. Eq. 446, 146 A. 213 (E. & A. 1929), which held that only the money actually used for the purpose agreed upon in the subordination agreement was entitled to priority. Our review of those cases convinces us that they are inapposite.

Cambridge Acceptance Corp. v. American National, supra, involved a subordination agreement which recited that it was for the purpose of securing a “construction loan.” In the case sub judice, no such language appears in the subordination agreement, although similar phraseology is present in the Kennedy or first Deed of Trust by way of limitation on the powers of the trustees. Moreover, no money for construction was ever advanced in American National nor was construction ever commenced. Although in that case $90,500 was expended, including $10,500 in “bonus money,” the appellate court inferred that $80,000 was consumed in obtaining a variance. We deduce from the record in the matter before us that the forty-two (42) townhouses, in various states of completion, were so constructed with monies advanced by Capital.

Cambridge Acceptance Corp. v. Hockstein, supra, turned on the failure of the construction mortgagee to see to the application of the mortgage money even though he had expressly agreed to so do, so that the court invoked equitable estoppel. No such equitable principle is applicable here. The subordination agreement does not contain an express agreement by Capital to oversee the application of the construction loan. In fact, the agreement itself is silent as to any restrictions on the use of the construction loan funds.

Albert & Kernahan, Inc. v. Franklin Arms, Inc., supra, was concerned with a written agreement that the owner of the first mortgage would subordinate his interest to the extent of the amount expended by a second mortgagee for the creation of an apartment building. The proof showed that some $44,700 was used to pay contractors. The further sum of $55,485, secured by the second mortgage, was not used in or intended to be used in the construction of the apartment building. In light of the proof, the court limited the effect of the subordination agreement to the money actually used in the construction. At the expense of repetition, we observe that no such proof is present in the case with which we are presently confronted.

The general rule is that where there is an agreement subordinating a first lien to a subsequent lien for purposes of a construction loan, in the absence of an express covenant from the subsequent lienor to the prior lienor to see to the application of the sums advanced, the diversion of funds on the part of the mortgagor is a risk run by the prior lienor unless he is able to demonstrate collusion between the mortgagor and the subsequent lienor. Gill v. Mission Savings & Loan Association, 236 Cal.App.2d 753, 46 Cal. Rptr. 456 (D. Ct. App. 1965); Iowa Loan and Trust Co. v. Plewe, 202 Iowa 79, 209 N. W. 399 (1926), commented on in 12 Iowa L. Rev. 201, 203 (1927); Cambridge Acceptance Corp. v. Hockstein, supra; IV American Law of Property § 16.106 D (A. Casner ed. 1952); L. Jones, A Treatise on the Law of Mortgages of Real Property § 742 (8th ed. 1928); Note, 42 Yale L. J. 980, 982(1933).

Capital did not promise, in the instant case, to see to the application of the sums it advanced. Even if we were to assume arguendo that the subordination agreement did somehow subject Capital to policing its monetary advances to the borrower, the proof of the amount expended by the borrower for other purposes is utterly lacking. In our view, when a party who has subordinated his lien for some express purpose to a subsequent lienor seeks to avoid the effect of the subordination agreement on the ground that the purpose of the agreement has been frustrated by the subsequent lienor, it is incumbent upon the prior lienor to prove the allegada. He may not simply assert the contention and thereby shift to the subsequent lienor the burden of disproving the averment.

We think the record amply demonstrates that the case now before us falls within the ambit of the general rule inasmuch as collusion is not present, and that Judge Clapp properly overruled the appellant’s exceptions to the auditor’s report. That the appellant did not obtain the contemplated value for her property is no reason to abrogate the subordination agreement so as to restore appellant to the priority position that she bargained away.

Order affirmed.

Costs to be paid by appellant.

      . We infer from the record that the first letter of the last name of each of the four original purchasers was used to comprise the name. The four purchasers were: Richard A. Gildar, Paul M. Sachs, Michael Schrier, and Gerald S. Lilienfield. We further infer that the “S” stands both for Sachs and Schrier.

      . As aptly stated by Justice Ward Hunt, “[i]t will not do for a man to enter into a contract and, when called upon to respond to its obligations, to gay that he did not read it when he signed it, or did not know what it contained. If this were permitted, contracts would not be worth the paper on which they are written,” Upton v. Tribilcock, 91 U. S. (1 Otto) 45, 50; 23 L. Ed. 203, 205 (1875).

      . Similar holdings are found in Drobnick v. Western Fed. Sav. & Loan Ass’n. of Denver, 479 P. 2d 393 (Colo. App. 1970); G. Credit Company v. Mid-West Land Development, Inc., 207 Kan. 325, 485 P. 2d 205 (1971).

      . The subordination agreement does not affect intervening lien holders unless they are a party thereto. W.J. Grange, Real Estate, A Practical Guide to Ownership, Transfer, Mortgaging, and Leasing of Real Property 159 (1937).


text:
    JOSEPH M. MIDLER, Personal Representative of the Estate of Dorothy L. Midler v. MIRIAM SHAPIRO et vir
    [No. 69,
    September Term, 1976.]

      Decided October 7, 1976.

      The cause was argued before Gilbert, C. J., and Menchine and Liss, JJ.

      B. Marvin Potler and Peter M. Zimmerman for appellant.

      Leon H. A. Pierson and W. Michael Pierson, with whom was David S. Sykes on the brief, for appellees.
   Gilbert, C. J.,

delivered the opinion of the Court.

Joseph Midler, personal representative of Dorothy L. Midler, his mother, seeks to have us reverse a dismissal in the Circuit Court for Baltimore County (Raine, J.) of the bill of complaint brought by Joseph against Miriam Shapiro and her husband, Martin. Joseph perceives grievous errors as having been committed by the chancellor, but our examination of the record and the applicable law leads us to a different conclusion. Accordingly, for the reasons stated infra, we shall affirm the circuit court.

A perusal of the record discloses that the late Dorothy Midler was married to Isadore Midler. The union produced two sons, Joseph, the appellant, and Samuel J. Midler. All parties lived in New York until Isadore’s retirement in 1960, whereupon Dorothy and Isadore Midler moved to St. Petersburg, Florida. Approximately three years later, Isadore died. He left his entire estate to his widow, Dorothy Midler. Mrs. Midler continued to reside in Florida until she moved to the Baltimore area in 1970. During the seven years of his mother’s widowhood that she lived in Florida, Samuel would visit her about once a year, and Mrs. Midler would, in turn, visit her sons in their respective homes in New York State for approximately one week each. She would also spend a week at the home of her niece, Miriam Shapiro, both en route to visiting her sons and in returning to Florida.

Samuel Midler testified that upon his father’s demise he aided his mother in straightening out her financial matters. This was necessary, he said, because his father had been a very dominating man and his mother “. . . knew very little of what was going on.” The Florida local bank assisted Mrs. Midler after Samuel’s return to New York.

When Mrs. Midler died in December, 1971, at age 78, Joseph, a member of the New York Bar, qualified as her personal representative and set about administrating his mother’s estate in accordance with her will dated 1963. By the terms of the will, Joseph and Samuel were to divide the assets of the estate. As personal representative, Joseph located some fifty thousand dollars in stocks, two watches, and a house in St. Petersburg. The total estate coming into the hands of Joseph, as personal representative, was approximately $55,000. Joseph discovered there was no cash in the estate, and upon inquiry, he ascertained that the sum of approximately $40,000 had been on deposit in various banks or savings and loan associations. Two of the accounts were in the joint names of Dorothy Midler and the appellee, Miriam Shapiro, “in trust” for the other, subject to the order of either. After Dorothy Midler’s death, Miriam transferred the monies to her own account. Joseph made demand for the money, but his demand was rejected, and the instant litigation resulted.

In this Court, Joseph puts four issues to us. We shall discuss each in the order in which it has been raised.

I.

“The Chancellor’s finding that there existed a confidential relationship between Dorothy L. Midler and Miriam and Martin Shapiro from the time that Mrs. Midler moved to Baltimore and lived in the Shapiros’ home in July, 1970 until her death at the age of seventy-eight on December 19, 1971 was based on substantial evidence.”

The evidence disclosed that Mrs. Midler and Miriam Shapiro had always been “close.” Their relationship was described as being more like mother and daughter than aunt and niece. Miriam took her aunt shopping and usually provided transportation. The appellant characterized Miriam as a domineering person who ran her family affairs in the manner suggestive of a “matriarch.”

Prior to Mrs. Midler’s moving to Baltimore, she, on June 27, 1969, opened an account in the Baltimore Federal Savings and Loan Association. At the same time, another account, bearing the next consecutive account number, was opened in the name of Miriam and Martin Shapiro. At the trial of the instant case, Miriam denied knowing that the account was opened at that time. In September, 1971, Mrs. Midler closed her account and transferred the amount of $15,121.20 into the Shapiro account.

Shortly after moving to Baltimore in July, 1970, Mrs. Midler opened a joint account at the Equitable Trust Company in her own name and the name of Miriam. Following Mrs. Midler’s death, Miriam withdrew all the proceeds therefrom, a total of $14,738.74. No other sums had been withdrawn from the account during its life span.

A similar account was opened in the Provident Savings Bank on August 24, 1970. Miriam withdrew the sum of $2,000 therefrom in November, 1971, to cover medical expenses of Mrs. Midler. The expenses totaled $800. The balance was placed in Miriam’s checking account. Subsequent to Mrs. Midler’s death, Miriam withdrew the balance of the monies on deposit in the Provident account, namely, $10,989.35.

It was admitted that Miriam handled the banking for Mrs. Midler and often, if not usually, made the deposits and wrote out the checks, although Mrs. Midler generally signed the checks.

When Mrs. Midler became ill, it was Miriam who insisted that she see a doctor. The doctor testified that Mrs. Midler did not appear to be her stated age and was alert and in control of her faculties.

Judge Raine found as a fact that a confidential relationship existed between Mrs. Midler and her niece.

It is manifest from the record that Mrs. Midler reposed confidence and trust in Miriam, else she would not have conferred upon Miriam the right to withdraw Mrs. Midler’s funds, nor in all likelihood would she have created joint accounts subject to her own and Miriam’s order. There is nothing in the evidence to suggest even remotely that Mrs. Midler did not comprehend the effect of a joint account.

A confidential relationship exists whenever confidence is placed by one person in another and accepted by that other person. Lynn v. Magness, 191 Md. 674, 684, 62 A. 2d 604, 609 (1948); Grimes v. Grimes, 184 Md. 59, 63, 40 A. 2d 58, 61 (1944). Such a relationship may arise where a party is, under the existing circumstances, justified in believing that the other party will not act in a manner adverse or inconsistent with the reposing party’s interest or welfare. Bass v. Smith, 189 Md. 461, 469, 56 A. 2d 800, 804 (1948). It “. . . extends to all relations in which confidence is reposed, and in which dominion and influence resulting from such confidence, may be exercised by -one person over another.” Zimmerman v. Bitner, 79 Md. 115, 126, 28 A. 820, 821 (1894). See also Zimmerman v. Hull, 155 Md. 230, 240, 141 A. 531, 535 (1928); Upman v. Thomey, 145 Md. 347, 358-59, 125 A. 860, 865 (1924).

Absent a presumption arising out of certain relationships (e.g., attorney-client, trustee-beneficiary, principal-agent), the existence vel non of a confidential relationship is a question of fact, not of law. Sanders v. Sanders, 261 Md. 268, 276, 274 A. 2d 383, 388 (1971); Wenger v. Rosinsky, 232 Md. 43, 48, 192 A. 2d 82, 86 (1963); Masius v. Wilson, 213 Md. 259, 264-65, 131 A. 2d 484, 486-87 (1957); Zimmerman v. Hull, supra at 240, 141 A. at 535.

Judge Raine, in the ease mbjudice, opined:

“The relationship [between Mrs. Midler and Miriam Shapiro] has been described by Mrs. Shapiro and also by an independent witness,... as being a very close mother-daughter type of relationship, and it is clear to me that for the periods of time in question Dorothy Midler, who was in her late seventies, . . . did place a great deal of trust and confidence in her niece, just as a mother would place trust and confidence in a beloved daughter. So, I make that finding as to the existence of a confidential relationship without any doubt whatever. I think it is crystal clear based on the testimony.”

Our review of the evidence leads us to conclude that Judge Raine’s finding of fact was not clearly erroneous, Md. Rule 1086, if indeed he was erroneous at all. Needless to say, we reject appellees' argument that the confidential relationship between the parties was not demonstrated, and that they should not have been required to go forward with evidence showing no undue influence upon Mrs. Midler.

II.

“The Chancellor applied an incorrect legal standard in concluding that the Equitable Trust Company and Provident Savings Bank joint accounts, established with funds of Dorothy Midler, were intended to confer the right of survivorship uon [sic] Miriam Shapiro where the Chancellor did not follow the criteria of Whalen v. Milholland [, 89 Md. 199, 43 A. 45 (1899),] and its progeny and disregarded undisputed evidence that the accounts were established solely so Mrs. Midler might have the assistance and aid of her trusted niece in handling financial affairs.”

Both the Equitable Trust account and the Provident account were titled in the names of the decedent and Miriam Shapiro as joint owners, in trust for one another, subject to the order of either and the balance upon death to belong to the survivor. Such language has been held to create a trust, the corpus of which, by operation of law, becomes “. . . the property of the survivor on the death of the other.” Wenger v. Rosinsky, supra at 50, 192 A. 2d at 87; Haller v. White, 228 Md. 505, 509-10, 180 A. 2d 689, 692 (1962); Hancock v. Savings Bank, 199 Md. 163, 170, 85 A. 2d 770, 772 (1952); Bradford v. Eutaw Savings Bank, 186 Md. 127, 133-34, 46 A. 2d 284, 287 (1946); Milholland v. Whalen, 89 Md. 212, 218, 43 A. 43, 45 (1899). The creation of such a trust gives rise to a rebuttable presumption of its validity, and, usually, the burden is thrust upon the party seeking to rebut it. Haller v. White, supra at 510, 180 A. 2d at 692; Blair v. Haas, 215 Md. 105, 115, 137 A. 2d 145, 150 (1957); Ragan v. Kelly, 180 Md. 324, 330, 24 A. 2d 289, 293 (1942). When, however, a confidential relationship is shown, as in the case now before us, the burden shifts to the party seeking to uphold the validity of the trust and gift. Wenger v. Rosinsky, supra at 50, 192 A. 2d at 87; Tribull v. Tribull, 208 Md. 490, 507, 119 A. 2d 399, 408 (1956). It then becomes the duty of the donee to demonstrate “. . . that the donor understood the nature of the transaction and intended to make a gift.” Tribull v. Tribull, supra at 507, 119 A. 2d at 408. See Hancock v. Savings Bank, supra.

Appellant strongly suggests that the “First Milholland Case,” 89 Md. 199, 43 A. 45 (1899), is controlling because there, as here, all the funds were the donor’s, who retained possession of the bank book. The Court concluded upon that proof that no gift was intended or perfected. We think the “First Milholland Case” to be inapposite. In the instant case, unlike Milholland, the account was in “trust form,” i.e., in trust for each other. The bank account in the “First Milholland Case” was not in “trust form,” but read: “Elizabeth O’Neill and Mary Whalen. Payable to the order of either or the survivor.” Later, apparently without the knowledge of the donor, Elizabeth O’Neill, the words “Joint Owners” were added when that form was adopted by the bank. Although the words “Joint Owners” were stamped upon the passbook, Miss O’Neill could not read. The Court held that a deposit of money by an owner thereof in a savings account with another person as “joint owners,” payable to the order of either and the survivor of them, is not sufficient to constitute a gift to the survivor if the donor retains dominion over the passbook.

Seemingly attempting to draw an analogy between the “First Milholland Case” and that which now confronts us, appellant points to evidence tending to show that, as in Milholland I, Mrs. Midler retained possession of the passbooks. Even if that evidence, in the instant case, were undisputed as to that fact, the “First Milholland Case” is readily distinguishable. The evidence in the case subjudice is that the bank account was in the trust form sanctioned by “The Second Milholland Case,” 89 Md. 212, 43 A. 43 (1899), and that it was in such form when it was opened. Mrs. Midler could read and was capable of comprehending what she was doing. No analogy may be properly drawn between the two cases. Moreover, there is no requirement that the passbook of the type of trust account used in the case now before us need be delivered to the donee in order to perfect the gift.

Appellant also invites our attention to Pearre v. Grossnickle, 139 Md. 274, 115 A. 49 (1921), wherein the Court said that even the use of the trust form does not create a trust unless there is evidence of a specific intent to so do. Pea,rre does not mandate direct testimony of intent on the part of the creator of the trust. We think Pearre is satisfied if the trier of fact is able to draw from the evidence a rational inference of the specific intent-of the donor to create the trust.

Judge Raine found as a fact that Mrs. Midler intended to create the trust account, that the accounts were not mere convenience accounts made for the purpose of assisting Mrs. Midler in her everyday needs, and that Miriam did not play a “. . . role in the creation of the accounts . . . .” In short, Judge Raine was of the view that the appellees met the burden thrust upon them and demonstrated to the trier of fact that Mrs. Midler “. . . understood the nature of the transaction and intended to make a gift.” Tribull v. Tribull, supra at 507, 119 A. 2d at 408. We have carefully reviewed the record, and we are unable to conclude that Judge Raine was clearly erroneous in his finding of fact. Md. Rule 1086. We perceive no error by the chancellor.

III.

“In the context of a confidential relationship, the Chancellor applied incorrect legal standards in concluding that Appellees met the burden of proving by clear and convincing evidence transactional fairness where he acknowledged that evidence of fairness was ‘very scant’ but nevertheless went on to disregard the test of Highberger v. Stiffler [, 21 Md. 338 (1864),] and its progeny by considering the case as if requiring proof of actual fraud and overweening influence rather than from the point of view of selfishness, unfair advantage, and unreasonable use of confidence.”

Highberger concerned the actions of a son in the management of his mother’s business affairs. By virtue of the mother’s age and their close relationship, the son’s will had become that of the mother. The son caused the mother to convey to him for the “nominal consideration” of six hundred fifty dollars a “house and lot in Washington County.” In fact, no consideration was paid, and the mother, who could neither read nor write, did not know that she had conveyed the property to her son. The fraud practiced upon her did not come to light until the son’s death, when a partition proceeding was instituted upon the son’s heirs. The mother sued to vacate the deed on the ground of fraud. The mother prevailed in the trial court, and the heirs appealed. The Court of Appeals, speaking through then Chief Judge Bowie, made clear that courts of equity will grant relief where confidence is reposed and then abused. 21 Md. at 352-53. The Court went on to state that, in such cases, whenever there is , . no consent of two minds, but a merger of the principal’s mind into the agent’s ... [,] ... it is not necessary to prove the actual exercise of overweening influence, misrepresentation, importunity or fraud aliunde the act complained of.” Id. at 353. Quoting Justice Story with approval, the Court continued:

“ ‘On the one hand it is not necessary to establish that there has been fraud or imposition on the client, and on the other, it is not necessarily void ipso facto. But the burthen of establishing its perfect fairness, adequacy and equity, is thrown upon the attorney, upon the general rule that he who bargains in a matter of advantage with a person placing a confidence in him, is bound to show that a reasonable use has been made of that confidence, — a rule applying equally to all persons standing in confidential relations until each other. Story’s Eq. sec. 312 . . . .’” Id. at 353-54.

More recently, the Court of Appeals has restated the rule in simplistic terms: Once a confidential relationship is established by the evidence, a heavy burden is cast upon the person in whom the confidence was reposed to show “. . . that a fair and reasonable use has been made of the confidence, ‘that the transfer of the property was the deliberate and voluntary act of the grantor and that the transaction was fair, proper and reasonable under the circumstances(citations omitted). Sanders v. Sanders, supra at 276-77, 274 A. 2d at 388; Rice v. Himmelrich, 222 Md. 234, 239, 159 A. 2d 647, 650 (1960); Masius v. Wilson, supra at 265, 131 A. 2d at 486-87.

Some of the factors the Court must consider in determining whether the “heavy burden” of demonstrating “fairness” and “reasonableness” has been met are: (1) the voluntariness of the act, Sanders v. Sanders, supra at 277, 274 A. 2d at 389; (2) the stripping of the donor of his or her assets vis-a-vis the incidence of control retained by the donor, id.) (3) the motive of the person in whom the confidence was reposed, Rice v. Himmelrich, supra at 239, 159 A. 2d at 650; (4) the degree to which the donor heeded the advice of the person possessed of the donor’s confidence, id.) (5) whether the donor acted upon independent advice, id. at 240, 159 A. 2d at 650; Williams v. Robinson, 183 Md. 117, 121-22, 36 A. 2d 547, 550 (1944); and (6) the comprehension of the donor of what he or she was doing. Williams v. Robinson, supra at 122, 36 A. 2d at 550.

Judge Raine, in summarizing the evidence, observed:

“. . . The dead-man’s statute prevents Mrs. Shapiro from testifying as to the transaction that took place between herself and the decedent, so the Court has to look at the only other evidence, and that is the testimony of Mrs. Austin. Mrs. Austin’s testimony was brief, but her testimony was that Dorothy Midler was a very sharp woman, that she saw no signs that Miriam dominated her Aunt Dora, which is the way Miriam refers to Dorothy Midler, and she testified that Miriam had told her that Dorothy wanted to pay off the mortgage for her beloved niece, but that Miriam felt rather funny about it.
Now, that negatives any idea that it was Miriam who was putting pressure on to get that mortgage money; it negatives any overweening influence. In addition, Viola Austin testified that she visited the decedent and the decedent opened a conversation by demanding to know from Miriam Shapiro whether she had taken care of that mortgage. So, it seems like it was all the idea, the act, and the wish to be beneficent toward Miriam.
. . . The evidence in this case is scant for the very reason that the dead^nan’s statute excludes Miriam or her husband from testifying . as to any transactions they had with Mrs. Midler, but I believe that if you look at all of the circumstances that can be gleaned from all of the testimony in this case that the transactions were fair and reasonable under all the circumstances. I, as the trier of the facts, am convinced of that.
On the other hand, I will confess that the evidence in support of the Court’s opinion is, to repeat, very scant by virtue of the very nature of a case of this type. Why do I think that it is fair and reasonable and provident? Well, number one, the decedent had three natural and very legitimate objects of her bounty, to wit, her two sons and the person who stood in the role of a daughter. The testimony discloses the assets owned by Mrs. Midler were in the neighborhood of one hundred thousand dollars, and she had executed a will shortly after the death of her husband in which she had left her estate to her sons equally. It made no provision whatever for Miriam.
It seems to me completely fair and reasonable that she would make some provision for Miriam. It seems to me only natural that she would want to do something for her niece who was going to do all that she could, and did all that she could, for Mrs. Midler in her last years. The evidence suggests that she really was closer to Miriam than she was to her two sons, whose contacts with their mother were limited to seeing their mother about once a year prior to the 1971 illness of the mother which brought them from New York to Maryland frequently to check into their mother’s well-being. In view of the fact that they have family ties, I think it’s only fair to say that during the last part of Dorothy Midler’s life they did all that could have been expected by sons, but before a substantial period prior to that time they had'not been as close to their mother as Miriam had gotten to be. So, it seems to me to be only natural that the decedent would want to take care of Miriam.”

The repeated characterization of the evidence as being “very scant” is looked upon by appellant as a signal that appellees did not meet the burden they were required to shoulder. The term “very scant” is relative and as such does not signify that the burden has not been successfully met. As we read the opinion of the chancellor, we are left with the belief that he was indicating that the evidence as presented crossed the threshold of “clear and convincing” but was scant in so doing. We, however, do not believe the evidence was as scant as the chancellor seemed to view it. Indeed, we think that the evidence viewed in its entirety fully justified the findings by Judge Raine.

IV.

“The chancellor erred in admitting over objection the denial by Miriam Shapiro of participation in the subject transactions because such a denial violates the Dead Man’s Statute.”

Md. Ann. Code, Courts and Judicial Proceedings Art., § 9-116 provides:

“A party to a proceeding by or against a personal representative, heir, devisee, distributee, or legatee, or by or against an incompetent person, may not testify concerning any transaction with or statement made by the dead or incompetent person, personally or through an agent since dead, unless called to testify by the opposite party, or unless the testimony of the dead or incompetent person has been given already in evidence in the same proceeding concerning the same transaction or statement.” (Emphasis added).

The statute is to be construed narrowly, Schifanelli v. Wallace, 271 Md. 177, 184, 315 A. 2d 513, 517 (1974); Snyder v. Crabbs, 263 Md. 28, 30, 282 A. 2d 6, 8 (1971); Stacy v. Burke, 259 Md. 390, 404, 269 A. 2d 837, 845 (1970), because it is an exception to the policy stated in Courts Art., § 9-101. It should be interpreted in the light of its history and of § 9-101. Trupp v. Wolff, 24 Md. App. 588, 597-98, 335 A. 2d 171, 177-178, cert. denied, 275 Md. 757 (1975).

With the statute and the manner in which it is to be read in mind, we now examine the happenings during the trial which give rise to the issue before us.

Over objection, Miriam Shapiro was allowed to testify that she had nothing to do with the opening of the bank accounts. The transcript discloses that the Shapiros’ counsel posed a question to the witness as follows: “Did you establish these accounts or any of them?” Appellant’s attorney objected on the ground that the response would be a violation of the transactional clause of the “Dead Man’s Statute,” and the trial judge overruled the objection. The record then reveals:

“THE COURT: . . . Did you have anything to do with establishing these accounts?
THE WITNESS: No, sir.
THE COURT: That’s admissible. She is denying that there was a transaction; that is far different from saying there was one.
BY MR. PIERSON [counsel for the Shapiros]:
Q Did you ask your aunt to establish these accounts?
MR. BELSKY [counsel for Midler]: Objection.
A No, sir.
MR. BELSKY: Move to strike.
THE COURT: The question was leading, but on the other hand I think the witness is entitled to testify that she had nothing to do with the transactions, her involvement in the opening of accounts; I think she is entitled to do that. Now, you either ask her a leading question or you say —
MR. PIERSON: What?
THE COURT: What conversations did you have with the decedent about the opening of the accounts, if any, and that puts you into a position where there’s an objection as to the dealings between the two of them, which would be inadmissible under the dead-man’s statute. Despite the fact it’s leading, the Court will overrule the objection and let her testify that she had nothing to do with the opening of the accounts.
MR. BELSKY: May I say this for the record, Your Honor? It appears to me that what counsel is attempting to do is prove its case by this witness where the dead-man’s statute is that if it’s to be proven, it should be proven by a third party, and that’s why we must continuously object.
THE COURT: You have your objection. I do not believe that that particular question violates the dead-man’s statute.
BY MR PIERSON:
Q I think the question was, did you ask you aunt to establish any of these accounts?
MR. BELSKY: Objection.
THE COURT: There’s an objection; the objection is overruled. Answer that yes or no.
THE WITNESS: State the question again.
MR. PIERSON: Read the question back.
(Whereupon, the Court Reporter reread the last question.)
THE WITNESS: No.”

We think the admission of such testimony to be erroneous. While the trial judge saw a difference between “denying that there was a transaction” and “saying there was one,” we fail to see that distinction. In our view, testimony that a party litigant did not participate in a transaction with a decedent is as much a violation of the statute as is testimony that they did participate and why they did so. The latter is clearly proscribed by the statute. The former is, however, but a negative approach to achieving a circumvention of that forbidden by the latter. It is impermissible. Jones v. Selvaggi, 216 Md. 1, 11, 139 A. 2d 246, 251 (1958).

The test for determining what is a “transaction” within the meaning of Courts Art., § 9-116, is set forth in Ridgley v. Beatty, 222 Md. 76, 159 A. 2d 651 (1960). The Court there said, quoting Hollister v. Fiedler, 17 N.J. 239, 111 A. 2d 57 (1955), “. . . that a proper test for determining what is a ‘transaction with’ a decedent in the statutory sense was: ‘Whether, in case the witness testify falsely, the deceased, if living, could contradict it of his own knowledge.’ ” 222 Md. at 83, 159 A. 2d at 655. Applying that test to the case sub judice, it is manifest that Mrs. Midler, had she been alive, could have, of her own knowledge, testified that Miriam Shapiro was or was not telling the truth. Mrs. Midler would most certainly have been in a position, were she alive, to testify whether Miriam prevailed upon her to open all or any of the three accounts. Thus, under the test, the matter to which Mrs. Shapiro was permitted to testify was within the scope of the prohibition established by the enactment of Courts Art., § 9-116, and its ancestors.

There remains, however, the question of whether the erroneous admission of the challenged testimony was harmless. We conclude that it was. We so do because our review of the record leads us to believe that there was substantial evidence, absent that which we think violated Courts Art., § 9-116, from which the trier of fact could properly find that the confidence reposed by the late Mrs. Midler was not abused by Miriam Shapiro. We think what the Court of Appeals said in Jones v. Selvaggi, supra at 11, 139 A. 2d at 251, to be a perspicuous statement of our perspective of this case: “If the answers to all of the objectionable questions to ... [Miriam Shapiro] be excluded, . . . there still remains ample relevant and admissible evidence to sustain the chancellor’s conclusions for dismissing the bill of complaint.”

Decree affirmed.

Costs to be paid by appellant.

      . The contention contains a misstatement of fact. Mrs. Midler lived in the Shapiro house from July, 1970, to October 1, 1970, at which time she moved into her own apartment located near the Reisterstown Road Plaza shopping center.

      . “. . . [W]e must guard against the acquisition of unwarranted influence, whether sought or unsought Address by Dwight David Eisenhower, January if, 1961.