author: Thompson, J.,

text:
    YORKRIDGE SERVICE CORPORATION v. WELDON LEE BORING et ux.
    [No. 366,
    September Term, 1977.]

      Decided February 9, 1978.

    The cause was argued before Thompson, Davidson and Mason, JJ.

      Gary I. Strausberg, with whdm were Melnicove, Kaufman & Weiner on the brief, for appellant.

      Michael J. Travieso, with whom were John J. Kenny and Ellen Lipton Hollander on the brief, for appellees.
   Thompson, J.,

delivered the opinion of the Court.

Yorkridge Service Corporation (Yorkridge), the appellant, sought to enforce a first refusal option against Weldon Lee Boring and Gwendolyn Richards Boring, his wife, (the Borings), the appellees, in the Circuit Court for Howard County, Judge Guy Cicone presiding. The chancellor granted the Borings’ motion for summary judgment and denied Yorkridge the relief sought. The case turns upon the question of whether or not Yorkridge properly exercised its option.

The record shows that by agreement dated May 26, 1975, and executed June 2, 1975, the Borings granted Yorkridge a first refusal option to purchase a tract of land known as Section III of Gwenlee Estates. The pertinent portion of the option provided:

“If anytime during the term of this First Refusal Option we shall receive a bonafide offer to purchase the Section III Land or any part thereof (‘other offer’), we shall forthwith forward to you a copy of such ‘other offer’ containing all of the terms and conditions of purchase. If within 7 days from the date of your receipt of such ‘other offer’, you give us written notice of your intention to purchase that portion of Section III Land covered by such ‘other offer’ upon the same terms and conditions contained in such ‘other offer’ then such ‘other offer’ together with your written notice of intention to purchase shall serve as a binding agreement between us, subject to such changes and modifications that may be mutually agreed upon.”

On January 4, 1976, the Borings received an offer to purchase Lots 1 to 28 of Section III from Development Technology, Inc. for the sum of $224,000. Yorkridge received notice of this offer from the Borings on or about January 17, 1976 but requested and received an extension of time to exercise its option until its counsel, who was abroad, returned to the United States. Upon his return, Yorkridge’s counsel, Isaac M. Neuberger, sent a letter to the appellees on January 29, 1976, which in pertinent part stated:

“In accordance with our brief telephone conversation, I am enclosing herewith an Amendment to Agreement of Sale to the Development Technology, Inc. Contract of Sale which I prepared in accordance with the terms of the First Refusal Option dated May 25, 1975. I have reduced the purchase price by the brokerage commission, since this is a savings as a result of our having exercised our option.”

“The Amendment to Agreement of Sale” enclosed was an unexecuted document which purported to reduce the purchase price by $11,200, the amount equal to the savings the Borings would realize on the real estate brokerage commission by virtue of the sale to Yorkridge rather than to Development Technology, Inc., leaving a total purchase price of $212,800.

The law as to what constitutes a proper acceptance of an option insofar as here relevant was succinctly set out in 1 Willison on Contracts, § 79 (3rd ed. 1957) at 261-62:

“Frequently an offeree, while making a positive acceptance of the offer, also makes a request or suggestion that some addition or modification be made. So long as it is clear that the meaning of the acceptance is positively and unequivocably to accept the offer whether such request is granted or not, a contract is formed. So an inquiry as to the meaning of an offer, or a request for an explanation, will not invalidate a positive acceptance; nor will a request for a modification of the offer coupled with an unqualified acceptance not dependent on the granting of the request.” (footnotes omitted)

We entirely agree with the holding of the trial judge that Yorkridge’s letter of January 29, 1976, constituted a counter-offer rather than an acceptance. In arguing to the contrary, Yorkridge cites that portion of the language in the option which states that the written notice of intention to purchase will serve as a binding agreement “subject to such changes and modifications that may be mutually agreed upon.” It argues that by including that language in the agreement, proposals for amendments were invited and that its letter was simply following the terms of the agreement. We think the argument begs the question. Any agreement is subject to such changes and modifications to which the parties may mutually agree. It assumes that the option had first been accepted and we see no language in the letter by which it is stated unequivocally that the option had been accepted. To overcome this hurdle Yorkridge points to the language in the latter part of the quoted portion of its letter of January 29, “as a result of our having exercised our option.” Once again, the problem we have with the argument is that it assumes the option had been previously exercised when a simple reading of what preceded the language fails to disclose any words which indicate that the option was accepted. In our view, the language quoted must refer to the conditional acceptance because there had been no real acceptance. In closing his letter to the Borings, counsel for Yorkridge stated: “John Davis [vice president of Yorkridge] has not reviewed this first amendment; however, I doubt that he will have any substantive comments.” This language indicates the letter was not designed to be a formal acceptance. In addition, the amendment to the agreement of sale provided: “The buyer has agreed to purchase the land subject to the terms and conditions of the contract of sale, except as amended herein. ” As the trial judge noted, “It is difficult to construe such provisions as meaning anything other than the plaintiff intended to make its acceptance conditional upon agreement to the amendments.”

Yorkridge relies on five cases to support its argument. In Katz v. Pratt Street Realty Co., 257 Md. 103, 262 A. 2d 540 (1970), the Katzes were given three options, only one of which could be exercised. The Katzes accepted one of the options but in their acceptance stated that within the time limits they might in the future exercise other options. The Court held that the additional language did not qualify their original acceptance of option no. 1 even though the subsequent attempt to exercise other options was not effective. The Court stated:

“It is well settled that to be valid, the exercise of an option must be unequivocal and in accordance with the terms of the option, Simpers v. Clark, 239 Md. 395, 401, 211 A. 2d 753 (1965); Foard v. Snider, 205 Md. 435, 446, 109 A. 2d 101 (1954); Restatement, Contracts § 58 (1932) at 65; § 59 at 65-66. However, ‘* * * a proper notice of acceptance is not made inoperative by the fact that it is accompanied by a proposal for some substitute arrangement subject to the other party’s consent* * *.’ 1 A. Corbin on Contracts § 264 (1963) at 523-24.” 257 Md. at 118.

In that case the first paragraph of the letter of acceptance stated clearly and unequivocally that the Katzes exercised their option to purchase one of the properties for the sum of $35,000. We have no such language in the purported acceptance in the instant case.

In Moss v. Cogle, 267 Ala. 208, 101 So. 2d 314 (1958), the acceptance stated: “I have decided to exercise the option which you gave me____” The acceptance then went on to state that timber had been cut on the land and they would like a statement of the amount that had been cut. Once again the acceptance began with an unequivocal acceptance of the option and the language which followed was merely a request and in no way modified the original acceptance. Likewise, in Lawton v. Byck, 217 Ga. 676, 124 S.E.2d 369 (1962), Lambert v. Taylor Telephone Co-Operative, Inc., 276 S.W.2d 929 (Tex. Civ. App. 1955), and Duprey v. Donahoe, 52 Wash. 2d 129, 323 P. 2d 903 (1958), each of the acceptances contains unequivocal language accepting the offer.

As the language of the written documents clearly shows the option was not exercised, there is no need for us to consider subsequent correspondence or subsequent acts of the parties. Benson v. Board of Education, 280 Md. 338, 373 A. 2d 926 (1977); Della Ratta, Inc. v. American Better Community Developers, Inc., 38 Md. App. 119, 380 A. 2d 627 (1977). We have, however, reviewed the letters and the affidavits and the result would not have changed if we needed ' to resort to secondary evidence. The letters are not sufficient to show that the January 29 letter constituted an exercise of the option. The letters sent to the Borings are merely continued negotiations looking towards the sale of the property and do not indicate a binding contract had been formed. Similarly, the letter from counsel for Development Technology, Inc. is too equivocal to be of any assistance to Yorkridge. In that letter Mr. Talkin stated: “It is my understanding that this matter was not finalized because Yorkridge decided to exercise its option.”

Absent any dispute as to material facts, the trial judge properly granted summary judgment.

Decree affirmed.

Appellant to pay the costs.


source: Caselaw Access Project

license: Public Domain

text:
    THE MAYOR AND ALDERMEN OF THE CITY OF ANNAPOLIS v. LOUIS H. HARTGE, JOEL S. MEISEL and BARRY S. COHEN, t/a Severn River Yacht Club
    [No. 454,
    September Term, 1977.]

      Decided February 9, 1978.

      The cause was argued before Thompson, Moore and Couch, JJ.

      Richard G. Anderson, Assistant City Attorney for Annapolis, with whom was Eugene M. Lerner, City Attorney, on the brief, for appellant.

      Wayne T. Kosmerl, with whom were Bennett Crain, Jr., and Hartman & Crain on the brief, for appellees.
   Thompson, J.,

delivered the opinion of the Court.

The Mayor and Aldermen of the City of Annapolis, a municipal corporation, appeal from an order of the Circuit Court for Anne Arundel County, directing the Board of License Commissioners of Annapolis to issue a liquor license to Louis H. Hartge, Joel S. Meisel and Barry S. Cohen, t/a Severn River Yacht Club, the appellees. In their brief the appellees move to dismiss the appeal pursuant to Md. Code, Art. 2B, § 175 (b) which is quoted hereinafter in note 4. As the appellant is not one of those authorized to appeal, we are without jurisdiction in the case and therefore grant the motion.

In order to put the appellant’s argument in focus, we review the history of the case. The order for appeal to the Circuit Court for Anne Arundel County was filed by the appellees on August 9, 1976, and the record of the proceedings before the Board was received by the court on September 7, 1976. A motion to extend the time in which to hear and decide the appeal was filed on September 27, 1976 and on the same day the court filed an order dated September 24,1976, extending the time for the hearing and deciding of the appeal for 90 days from the date of the order. The case was heard by Judge Nat W. Hopper on December 20, 1976, at which time a further order was passed extending the time for the filing of a final order until January 25, 1977. On January 17, 1977, Judge E. Mackall Childs passed a Memorandum Opinion and order dismissing the appeal because of a lack of further jurisdiction. Subsequently, on January 26,1977, Judge Childs signed an order rescinding his previous order of January 17,1977, and amending the original order of court of September 24, 1976, nunc pro tunc, to provide for an extension of time in which the appeal was to be heard and decided through June 1,1977. No further action was taken in the case until Judge Hopper filed his Memorandum Opinion and order on May 20, 1977, reversing the action of the Board of License Commissioners of Annapolis and directing the Board to issue the license.

Appellant contends that under Md. Code, Art. 2B, § 175 (e) (3) (quoted in note 4), the trial court had lost its jurisdiction to decide the case. It relies on Scherr v. Braun, 211 Md. 553, 128 A. 2d 388 (1957) and Pearce v. Board of Liquor License Commissioners, 228 Md. 515, 180 A. 2d 651 (1962), both of which interpreted the section in question. We do not reach the issue because in our view we have no jurisdiction to order the Circuit Court for Anne Arundel County to take any action in the instant case because no proper appeal is before us.

The appellant argues that it has a right of appeal under Art. 2B, § 175 (e) (2) (also quoted in note 4), which specifically authorizes the Liquor Board to participate in appeals from the Board's decision. This argument is completely answered by the language of the Court of Appeals in Liquor License Board v. Leone, 249 Md. 263, 239 A. 2d 82 (1968), in which the Court held that a liquor license board had no right to appeal from a decision of the trial court and specifically pointed to this section as supporting its holding saying:

“[T]his conclusion is strengthened by the grant of authority in subsection (e) (2) authorizing the Board to be represented in the hearing in the lower court. Had the legislature intended to permit the Board to appeal from a reversal of its own decision, we are convinced it would have said so.” Id. at 269.

The appellant further argues that under Md. Rule 1085 we have jurisdiction to determine that the trial court had no jurisdiction. In support of its position the appellant cites State v. McCray 267 Md. 111, 126, 297 A. 2d 265 (1972); Moore v. State, 15 Md. App. 396, 291 A. 2d 73 (1972), cert. denied, 266 Md. 740; Wilson v. State, 21 Md. App. 557, 321 A. 2d 549 (1974); Staley v. Staley, 25 Md. App. 99, 335 A. 2d 114 (1975), cert. denied, 275 Md. 755. We have examined the cases and in each of them the appellant had standing to maintain the appeal. The Court in Liquor License Board v. Leone, supra, cited Board of Medical Examiners v. Steward, 203 Md. 574, 580, 102 A. 2d 248 (1954), which in turn cites a number of Maryland cases to support the proposition that appellate courts have jurisdiction where the trial court exceeded its jurisdiction. Although we may have jurisdiction to examine whether the Circuit Court had jurisdiction in certain situations, the instant appeal still must be dismissed because the appellant lacks standing. See Kreatchman v. Ramsburg, 224 Md. 209, 167 A. 2d 345 (1961); In Re Buckler Trusts, 144 Md. 424, 125 A. 177 (1924); Glenn v. Reid, 74 Md. 238, 24 A. 155 (1891). We have no more power to order the Circuit Court for Anne Arundel County to take action in the case than we would if no appeal had been filed. See also our opinion in Wilson v. State, supra:

“The question whether this appeal is properly before us is not answered by Maryland Rule 1085. Under that Rule, and comparable Rule 885 applicable to the Court of Appeals, the question of jurisdiction of the lower court, even though not tried and decided below and neither briefed nor argued, may be raised by the appellate court, sua sponte, in an appeal properly before it, as an exception to the general rule established by Rules 1085 and 885. State v. McCray, 267 Md. 111, 126. Here the question of jurisdiction was tried and decided below and the issue is not whether it may be considered by this Court in an appeal properly before it, which it could certainly do, but whether this Court may entertain the appeal itself. We are constrained to conclude that the order denying the motion to dismiss was interlocutory and, therefore, the appeal therefrom was premature and must be dismissed.” (Emphasis added). Id. at 571.

In Montgomery County v. One Park North, 275 Md. 193, 338 A. 2d 892 (1975), the Court dismissed an appeal because the appellant lacked .'Standing. Without discussion of the present problem, the Court nevertheless vacated an order of the trial court because the administrative agency lacked jurisdiction. Less than one year later, however, the Court fully discussed the present problem in connection with a case in which this Court lacked jurisdiction saying:

“We recognize that both this Court and the Court of Special Appeals have previously utilized Rules 871 and 1071 respectively in issuing a mandate on the merits of a case where there was no appealable order and hence no jurisdiction in the appellate court. Dackman v. Dackman, 252 Md. 331, 336, 250 A. 2d 60 (1969); Beckward v. Hensel, 20 Md. App. 544, 556, 316 A. 2d 309, rev’d on other grounds, 273 Md. 426, 330 A. 2d 196 (1974); Stitzel v. Kurz, 18 Md. App. 525, 540, 308 A. 2d 430, cert. denied, 269 Md. 755, 761 (1973). And see with respect to Rule 885, Blocher v. Harlow, supra, 268 Md. at 585. However, in none of these cases was there any discussion of Rules 871 or 1071 or of the jurisdictional problems involved. In fact, in each of the above cases invoking Rule 871 or Rule 1071, the opinion dealt with the issue in a one-sentence assertion that the rule was applicable. In light of this, the precedential value of Dackman v. Dackman, supra, is diminished. To the extent that the above-cited cases support an assumption of appellate jurisdiction in the absence of an appealable order, they are disapproved.” Eastgate Associates v. Apper, 276 Md. 698, 703, 350 A. 2d 661 (1976).

The appellant argues strenuously that the dismissal of its appeal would result in an absurd situation by permitting trial courts to ignore legislative will and prior decisions of appellate courts. Our answer is that we will face that question when it is before us. We repeat we have no more right to review the action of the Circuit Court for Anne Arundel County in the present case than we would have had if no appeal had been filed. The right to appeal is statutory, not constitutional, except in limited situations not here present. See Criminal Injuries Compensation Board v. Gould, 273 Md. 486, 331 A. 2d 55 (1975) and Baltimore County v. Churchill, Ltd., 271 Md. 1, 313 A. 2d 829 (1974), appeal dismissed, 417 U. S. 902.

Appeal dismissed.

Appellant to pay the costs.

      . Md. Code, Art. 2B, § 152 provides: “In Annapolis, the mayor, counsellor and aldermen of the City of Annapolis, shall constitute the board of license commissioners for said city. The noard of license commissioners of Anne Arundel County shall have no jurisdiction in the City of Annapolis.” (Emphasis added). We do not regard the slight difference between the appellant and the Board of License Commissioners of Annapolis as significant.

      . Apparently the order had been previously signed by the judge.

      . The court apparently acted under principles discussed in Owen v. Freeman, 279 Md. 241, 367 A. 2d 1245 (1977), but we make no determination as to the correctness of the order. See Suburban Development Corp. v. Perryman, 281 Md. 168, 377 A. 2d 1164 (1977) note 1.

      . The pertinent provisions relating, to appeals from the Board are set out in Md. Code, Art. 2B, § 175:
      “(a) Generally.— The decision of the board of license commissioners * * * in approving, suspending, revoking and restricting, or refusing to approve, suspend, revoke or restrict any license, or licensee, shall be subject to appeal in the following manner:
      “(b) Who may appeal. — Any licensee or applicant for a license, or any gt oup of not less than ten persons who are residents or real estate owners in the precinct or voting district in which the licensed place of business is located or proposed to be located, may appeal therefrom to the circuit court of the county, or in the city to the Baltimore City Court, upon payment of all costs incident to the hearing before the local board or local licensing official.
      “(e) Scope of appeal —
      “(2) In such actions of appeal the local board or the local licensing official involved may be represented by some qualified attorney designated for such service by said board or official.
      “(3) The failure of the court to determine an appeal within a period of 30 days after the record has been filed in court by the local board as above provided, shall constitute an automatic affirmance of the local board’s decision, unless the time has been extended by the court for good cause shown.
      “(4) (i) If the court reverses the action of the local board it shall file with the papers a written statement of the reasons. The court may modify, as well as affirm or reverse, the action of the local board. Costs shall be awarded as in other civil cases.
      “(f) Finality of appeal. — The decision of the [circuit] court thus given shall be final and effective at once. No further appeal shall lie nor shall there be any other remedy by which the local board's decision may be reviewed in court, either by way of mandamus, injunction, certiorari or otherwise. However, if any judge of the circuit court of any county, or the Baltimore City Court, shall in any case finally decide a point of law at variance with any decision previously rendered by any other judge of the State on the same question, an appeal may be taken from the decision rendered to the Court of Special Appeals. Any such appeal shall not stay the action of the lower court. The Court of Special Appeals shall only decide the question of law involved in such an appeal and shall not pass upon any question of fact.”

      . The rale reads as follows: “This Court will not ordinarily decide any point or question which does not plainly appear by the record to have been tried and decided by the lower court; but where a point or question of law was presented to the lower court and a decision of such point or question of law by this Court is necessary or desirable for the guidance of the lower court or to avoid the expense and delay of another appeal to this Court, such point or question of law may be decided by this Court even though not decided by the lower court. Where jurisdiction cannot be conferred on the Court by waiver or consent of the parties, a question as to the jurisdiction of the lower court may be raised and decided m this Court whether or not raised and decided in the lower court.”


author: Moylan, J.,

text:
    DANIEL MELNICK et ux. v. H. MAX AMMERMAN
    [No. 547,
    September Term, 1977.]

      Decided February 9, 1978.

    The cause was argued before Morton, Moylan and Melvin, JJ.

      Philip E. Epstein, with whom were John J. Garrity, Karl G. Feissner and Feissner, Garrity, Levan &Schimelon the brief, for appellants.

      Thomas F. Hogan, with whom were J. Alan Galbraith and Kenary, Tietz & Hogan and Williams & Connolly on the brief, for appellee.
   Moylan, J.,

delivered the opinion of the Court.

On April 28, 1975, the Circuit Court for Montgomery County entered a judgment in the amount of $68,000 in favor of the appellee, H. Max Ammerman, against the appellants, Daniel Melnick et ux. On October 9,1975, the parties executed an agreement whereunder, inter alia, the appellants assigned to the appellee their stock interest in the Eastern Development Corporation as security for the balance of the judgment. On November 9, 1975, the ownership of the stock was changed to the appellee/assignee on the corporate books.

On February 28, 1977, the appellants filed a Motion to Declare the Judgment Paid and Satisfied, with supporting exhibits, affidavits, and points and authorities. The merits of that motion are not before us. Accompanying the motion was a timely Request for a Hearing. Maryland Rule 321 d provides:

“The court may decide demurrers and motions (except motions for a new trial or for judgment n.o.v.) without a hearing unless a party requests a hearing at the time or within fifteen days after the demurrer, motion or reply is filed. A request for hearing shall be in writing and may be either in a separate pleading, or incorporated in the body of the demurrer, motion or reply at the end thereof under an appropriate heading.” (Emphasis supplied).

After filing their request for a hearing, the appellants were notified by the clerk of the Montgomery County Court that a hearing had been set for June 7,1977, at 10 a.m. Appellee’s counsel also joined, by a letter dated April 25, 1977, in the selection of a hearing judge. Notwithstanding these arrangements, an order was signed in the Montgomery County Circuit Court on May 2,1977, denying the appellants’ motion without benefit of a hearing. This appeal is from that denial.

We have no difficulty agreeing with the appellants that the clear language of Rule 321 d makes a hearing mandatory upon timely request. The appellee argues that the use of the verb “may” indicates that the matter is within the discretion of the judge. It is clear to us, however, that the vesting of discretion is conditioned by the words “unless a party requests a hearing.” In this case, the hearing was properly requested and there was no discretion.

Judgment reversed; case remanded for further proceedings; costs to be paid by appellee.


author: Couch, J.,

text:
    WILLIAM B. WAUGH v. STATE OF MARYLAND
    [No. 568,
    September Term, 1977.]

      Decided February 10, 1978.

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

      Charles Duvall Smith, with whom were Taylor, Smith & Parker on the brief, for appellant.

      Kathleen M. Sweeney, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Warren B. Duckett, Jr., State’s Attorney for Anne Arundel County, and Gerald Anders, Assistant State’s Attorney for Anne Arundel County, on the brief, for appellee.
   Couch, J.,

delivered the opinion of the Court.

Appellant has been before this Court in Waugh v. State, 20 Md. App. 682, 318 A. 2d 204 (1974), and before the Court of Appeals in Waugh v. State, 275 Md. 22, 338 A. 2d 268 (1975), in connection with the same arrest and indictments that underlie this appeal.

Appellant has taken this appeal from an order of the Circuit Court for Anne Arundel County (Turk, J.) denying his motion to dismiss certain indictments for drug related offenses on grounds of double jeopardy. We will affirm the order of the court below and remand the case for further proceedings.

Appellant raises two contentions in this appeal:

“1. Is retrial of the instant case barred by the application of the doctrine of Former Jeopardy?
2. Is this appeal rendered moot by a Supreme Court decision binding on the courts of this State, holding that a search of locked luggage without a search warrant is illegal and evidence so seized should be suppressed?”

The facts underlying this case are set out fully in Waugh v. State, 275 Md. 22, 338 A. 2d 268 (1975), but we will summarize the facts as necessary to this appeal.

It appears that based on information received from the Tucson, Arizona police, appellant was arrested by the State Police as he arrived at Friendship Airport (now Baltimore-Washington International) from Tucson. After arresting appellant, the police searched his luggage without first obtaining a search warrant, finding eighteen bricks of marijuana.

Appellant was indicted and tried for various drug-related offenses including possession of a controlled dangerous substance — marijuana — with intent to distribute. Before and during his trial, appellant moved to suppress the eighteen bricks of marijuana, asserting that they had been obtained as a result of an illegal search and seizure. These motions were denied and appellant was convicted of possession with intent to distribute. He was sentenced to three years imprisonment and fined $3,000.

This Court affirmed his convictions. 20 Md. App. 682, 318 A. 2d 204 (1974). The Court of Appeals reversed, holding that the trial court erred in denying appellant’s motion to suppress the marijuana. 275 Md. 22, 338 A.2d 268 (1975).

The holding of the Court of Appeals was based on the “fruit of the poisonous tree” doctrine established in Wong Sun v. United States, 371 U. S. 471, 83 S. Ct. 407, 9 L.Ed.2d 441 (1963). The Court of Appeals found that the Maryland arrest and search of appellant and his luggage were based solely on information obtained in a previous search in Arizona. Therefore, the Court held that for the Maryland search to have been valid, the Arizona search had to have been within the ambit of a valid Fourth Amendment search. The Court of Appeals further found that the Arizona search was not a valid search as the Arizona police lacked probable cause to believe appellant’s luggage contained contraband. In so finding, the Court considered and rejected both grounds advanced by the State as furnishing probable cause. Because of their disposition of the case, the Court of Appeals expressly did not reach the issue of whether the warrantless search itself was consitutional, had probable cause to search the luggage been established by the State.

The Court of Appeals remanded the case for a new trial.

After remand of the case to the circuit court, and as the State again prepared to prosecute appellant, appellant again moved to suppress the seized marijuana. When the motion came up for hearing, appellant withdrew his motion to suppress, with leave to refile it before trial, and filed a motion to dismiss the case on grounds of double jeopardy, res judicata, collateral estoppel, and law of the case.

Prior to appellant withdrawing his motion to suppress, the State had proffered that with respect to the seized marijuana the State would introduce evidence that would develop the reliability of the confidential informant in Arizona, so as to satisfy the Aguilar-Spinelli test, thereby yielding a finding that the Arizona police did have probable cause. The State’s proffer also made clear that the State had no other evidence that it could introduce to show probable cause for the arrest and search in Maryland other than towards developing the reliable informant.

The trial court denied appellant’s motion to dismiss on all grounds, and appellant took this appeal.

It is well settled that retrial of a criminal defendant after a successful appeal is not barred by the double jeopardy clause. Gray v. State, 254 Md. 385, 255 A. 2d 5 (1969), cert. den., 397 U. S. 944, 90 S. Ct. 961, 25 L.Ed.2d 126 (1970); Booth v. State, 16 Md. App. 524, 298 A. 2d 478 (1973); Boblits v. State, 7 Md. App. 391, 256 A. 2d 187 (1969); see also United States v. Ewell, 383 U. S. 116, 86 S. Ct. 773, 15 L.Ed.2d 627 (1966); United States v. Tateo, 377 U. S. 463, 84 S. Ct. 1587, 12 L.Ed.2d 448 (1964).

However, appellant contends that the ability to reprosecute a defendant after an appellate reversal is qualified in some cases. That qualification, as set out by the Court of Appeals in Gray v. State, supra, is that the State must be able to introduce additional evidence going to the substantive issue of the defendant’s guilt, after remand from the successful appeal, or reprosecution is barred by the double jeopardy clause. Appellant points to the State’s proffer before the court below that the only new evidence it could introduce would be relevant only to the issue of suppression, and not to the substantive issue of appellant’s guilt. Thus, appellant maintains, the double jeopardy clause bars reprosecution of appellant.

In part, appellant is correct. In Gray, the Court of Appeals held that the State’s ability to reprosecute after a successful appeal is qualified in some cases. The qualification is that when the first trial was reversed for insufficiency of the evidence, either the appellate court or the trial court must be convinced that the State can produce additional probative evidence. If not so convinced, the court is required to enter a judgment of acquittal, and retrial is barred by the double jeopardy clause. 254 Md. at 397, 255 A. 2d at 11.

Patently, the Gray rule is inapplicable to this case. The Court of Appeals in Waugh v. State, 275 Md. 22, 338 A. 2d 268 (1975), reversed appellant’s conviction not for insufficiency of the evidence but for error in the admission of certain evidence.

In this case, and all others where the judgment of the lower court is reversed on a ground other than the insufficiency of the evidence, the rationale underlying the Gray rule is not present. In Gray, the Court of Appeals recognized that had the trial court not erred, the case would have ended in a judgment of acquittal, and the double jeopardy clause would bar retrial of the defendant. Benton v. Maryland, 395 U. S. 784, 89 S. Ct. 2056, 23 L.Ed.2d 707 (1969); Pugh v. State, 271 Md. 701, 319 A. 2d 542 (1974). The rule propounded in Gray worked an accommodation between the double jeopardy interests of the defendant and the long recognized interest of the State in retrying a defendant who was successful on appeal. United States v. Ball, 163 U. S. 662, 16 S. Ct. 1192, 41 L. Ed. 300 (1896); see Gray v. State, supra at 395, 255 A. 2d at 10 (citing from People v. Brown, 99 Ill. App. 2d 281, 241 N.E.2d 653 (1968).

In the instant case, had the court below not erred, the result would have been only that some of the evidence would have been excluded. At that point the defendant would not have been entitled to an acquittal as a matter of law. Thus the accommodation made in Gray to the double jeopardy rights of the defendant would not be required in this case.

Practically, where the crime is possessory, as in the instant case, suppression of certain evidence may well result in the State being unable to prove its case. But suppression of the evidence does not mandate a dismissal of the charges as a matter of law. The court’s function is served in this respect by a judgment of acquittal at the end of the State’s entire case, not a dismissal of the case before the State is given an opportunity to attempt to prove its case. Hayward v. State, 278 Md. 654, 366 A. 2d 52, rev’g. 30 Md. App. 194, 350 A. 2d 702 (1976).

Accordingly, the trial court did not err in denying appellant’s motion to dismiss by reason of double jeopardy.

Appellant also contends that this appeal is moot as a result of the recent Supreme Court decision in United States v. Chadwick, 433 U.S. 1, 97 S. Ct. 2476, 53 L.Ed.2d 538 (1977). Since “mootness” would mandate only the dismissal of the appeal, we take appellant to be contending that the Chadwick case indicates that the warrantless search in the instant case was invalid constitutionally, requiring suppression of the seized marijuana.

While this issue was presented and decided by the Court in the original appeal, 20 Md. App. at 704-10, 318 A. 2d at 216-220, the issue is emphatically not properly before us at this point in the proceedings. While double jeopardy issues are available for interlocutory appeal, the settled rale in Maryland is that evidentiary questions, including those involving constitutional questions, may not be raised on appeal until a final judgment has been rendered. Pearlman v. State, 226 Md. 67, 172 A. 2d 395 (1961); Raimondi v. State, 8 Md. App. 468, 474, 261 A. 2d 40, 43 (1970).

The fact that the suppression issues raised here are coupled with an issue that is immediately appealable —- double jeopardy — will not render those issues also immediately appealable. In Williams v. State, 17 Md. App. 110, 299 A. 2d 878 (1973), this Court held that such coupling did not render the non-appealable issues immediately appealable.

Therefore, we may not consider the application of Chadwick in the posture in which we have heard this appeal. See Md. Code (1974), Courts and Judicial Proceedings Article, § 12-301.

This must also be the disposition of any contention made by appellant that the State may not relitigate the suppression issue. That issue is available on direct appeal after a final judgment, but not in an interlocutory appeal on double jeopardy grounds.

Order affirmed; case remanded for further proceedings.

Appellant to pay costs.

      . The first ground advanced by the State and considered by the Court of Appeals was the existence of a reliable informant. Following Aguilar v. Texas, 378 U. S. 108, 84 S. Ct. 1509, 12 L.Ed.2d 723 (1964), and Spinelli v. United States, 393 U. S. 410, 89 S. Ct. 584, 21 L.Ed.2d 637 (1969), the Court held that due to the lack of basis provided by the Arizona officer concerning the credibility of the informant or reliability of the information, the Arizona police could not be found to have had probable cause. The second ground was that the existence of the smell of talc, a substance commonly used to cover up the smell of marijuana, provided the Arizona police with probable cause. The Court held that this was not enough to constitute probable cause.

      . it is beyond doubt that denial of a motion to dismiss on grounds of double jeopardy is immediately appealable. Neal v. State, 272 Md. 323, 322 A. 2d 887 (1974); Gray v. State, 36 Md. App. 708, 375 A. 2d 31 (1977).

      . “Mootness” is, of course, a judicial doctrine designed to insure that the courts do not decide questions when the decision has no effect. Thus the requisite adverseness between parties, so necessary to proper judicial functioning, is assured. State v. Sheridan, 248 Md. 320, 236 A. 2d 18 (1966); Lloyd v. Supervisor of Elections, 206 Md. 36, 111 A. 2d 379 (1954). If an appeal is “moot”, the appeal must be dismissed. Appellant does not seek dismissal of the appeal Instead, he seeks to have this Court apply Chadwick to the facts of this case, an improper use of the term “moot”.

      . See also Waine v. State, 37 Md. App. 222, 377 A. 2d 509 (1977), in which this Court applied Chadwick Tioth cases present factual situations similar to this case, and may well be applicable to the circumstances surrounding the warrantless search of appellant’s luggage.


author: Gilbert, C. J.,

text:
    WILLIAM E. DIXON et al. v. THE PROCESS CORPORATION et al.
    [No. 585,
    September Term, 1977.]

      Decided February 10, 1978.

      The cause was argued before Gilbert, C. J., and Davidson and Couch, JJ.

      William L. Corbin, with whom were B. Craig Wald and Corbin, Heller & Warfield, Chartered on the brief, for appellants.

      BayardZ. Hochbergiov appellee, The Process Corporation.
   Gilbert, C. J.,

delivered the opinion of the Court.

A commercial corporation is a legal entity conceived by the mind of man and legitimated by statute for the avowed purpose of achieving a maximum profit with a minimum exposure to liability. When such an entity is the parent of multiple offspring in the form of subsidiary corporations, woe unto the creditor who seeks to rip away the corporate facade in order to recover from one sibling of the corporate family what is due from another in the belief that the relationship is inseparable, if not insufferable, for his is a herculean task.

In the matter now before us, William E. Dixon and Ernest J. Litty failed in their bid in the Circuit Court for Prince George’s County to have that court decree that the property and assets of the appellee, The Process Corporation (TPC), were those of Process Incorporated of Maryland (PIM), so that a judgment lien against the latter would be collectable from the former. The appellants also met with an utter lack of success in their efforts to impress a trust upon the property of TPC in favor of the now defunct PIM.

Refusing to accept what to some may have appeared “to be inevitable defeat,” and in an effort to salvage their investment, the appellants vigorously assert in this Court that Chancellor William B. Bowie erred in dismissing the amended bill of complaint at the close of the plaintiffs’-appellants’ evidence. Just as strenuously, TPC asseverates that Judge Bowie was correct in taking the action that he did.

Our review of the record leads us to conclude that TPC has the better of it, and we shall affirm the dismissal of the bill. We now explain why we have reached that conclusion.

THE FACTS

The scenario from which this appeal arises is intricate, ofttimes confusing and, yet, probably typical of many present-day land developments.

TPC was initially created as an independent body but later became one of eleven (11) known subsidiaries of the parent corporation, PIM. The objective of PIM was land development in various counties of Maryland. The subsidiaries came into being with the view in mind of limiting liability to the particular corporation given life for the purpose of developing a specified tract of land. PIM conducted the management affairs of all its subsidiaries, owned the equipment they used, hired their employees, paid their office rents, and operated the payrolls and unemployment matters. PIM then charged to each subsidiary the expenses PIM incurred on their behalf. The directors were the same for all corporations, and at board meetings, any matters of the various corporations were discussed. Minutes were kept and an undocumented set of bylaws, uniform as to all the corporations, was adopted. The stock of PIM was paid for but not issued “because of the neglect of the secretary.” Articles of incorporation for both PIM and TPC were filed with the State Department of Assessments and Taxation.

In early 1972, John Healey, a law partner of Thomas A. Garland, and a friend and former employee of the appellant, William E. Dixon, contacted Dixon to solicit his investment in a proposed development in Prince George’s County known as Clinton Woods. Dixon, an attorney with extensive experience in land development and real property law, was also chairman of the board and two-thirds stock owner of The Monumental Title Company (MTC). Dixon reviewed the plat, the purchase contract, and the construction estimates. Although Dixon was “not too much interested in who ... [Clinton Woods] was titled to,” the purchase agreement and option revealed that the contract was between TPC and the Ryland Group Incorporated. Dixon declined to invest in the Clinton Woods project.

Sometime in late November or early December of 1972, Healey once again contacted Dixon. The contact concerned the acquisition and development of a large tract of land located in Charles County and known as Maxwell Hall. Healey needed $150,000 by the end of December to purchase, engineer, and rezone a 384 acre parcel known as the Chaney tract, which comprised but a portion of Maxwell Hall. Dixon was interested in the venture and contacted his friend, the appellant, Litty, who had previously financed a real estate development undertaking. Litty, the owner of the Leimbach Construction Corporation, agreed to participate and to finance the venture from surplus corporate funds so that he could convert ordinary income into capital gains and thus avail Leimbach of a tax advantange. In furtherance of the venture, Dixon and Litty formed a partnership known as Benedict Associates, whose goal was to conduct the transaction and to divide the profits “50-50.”

Under the relevant terms of the transaction, the Chaney tract was to be purchased by Garland (the president of PIM and TPC) acting individually as trustee for the partnership of Benedict Associates. PIM agreed to repurchase the Chaney tract from the partnership within one year.

A meeting was held at the offices of PIM in Columbia, Maryland in order to discuss the development, financial details, and to close the deal. Dixon, worried that the funds to repurchase the Chaney tract would not be available within the one year period, testified that he was reassured by Garland that “[w]e own the [Clinton Woods] property,” and that it would generate the cash necessary to repurchase the Chaney land from the partners. According to Dixon,, throughout the complex negotiations and discussions of the various development projects under way, everything was referred to as being the projects of “Process.” Dixon and Litty both told Judge Bowie that they believed one corporation, “Process,” was the owner and developer of all the real estate projects. They said that it was never explained to them, and they did not ask whether the corporation they were dealing with, PIM, held title to the Clinton Woods property. Without further investigation or ascertaining who held title to Clinton Woods, the appellants agreed to loan PIM the $150,000.

Execution of the Benedict Associates partnership agreement, as well as the loan agreement, including a repurchase option in PIM was on December 27, 1972. PIM, through Garland as president, signed two confessed judgment notes in favor of appellants of $35,000 and $25,000 respectively. The option-loan agreement clearly shows that the transaction was between Dixon and Litty trading as Benedict Associates and PIM. Litty told the court that he did not bother to read the papers, and that he entered into the transaction, trusting in the expertise of his friend and partner, Dixon.

A letter dated December 14, 1973, and bearing the letterhead, “Process, Incorporated,” was received by Messrs. Litty and Dixon. The content advised the appellants that “Process Incorporated of Maryland [PIM] exercises its option to purchase the partnership interests ... [the Chaney tract].” Apparently, because of a lack of funds, the repurchase did not materialize. PIM, however, in consideration of a promissory note in the amount of $50,000 payable to Dixon and litty, executed by Garland as president of PIM, obtained a ninety (90) day extension of the December 27, 1972 agreement. Nevertheless, the repurchase was never consummated because of PIM’s fiscal embarrassment, nor were the notes paid.

Appellants exercised the powers contained in the notes and obtained confessed judgments in the Circuit Court for Charles County against PIM in the amounts of $28,722.83, $40,213.05, and $56,186.17, respectively. The original judgments were certified to Prince George’s County and entered of record. Following hearings on motions to vacate, the judgments, including accrued interest, were again certified to Prince George’s County and again entered of record as an integral part of appellants’ design to establish that Clinton Woods was actually an asset of PIM.

Dixon related to Judge Bowie that in the latter part of 1974 or early 1975, he conducted a title search wherein he discovered, much to his dismay, that title to Clinton Woods was held by TPC and not PIM. A telephone call to Healey and independent verification by counsel confirmed the existence of PIM and TPC as two separate corporate beings. Meanwhile, MTC, of which Dixon is chairman of the board, conducted settlements on various lots at Clinton Woods. Those settlements, which were preceded by a title search, revealed that TPC held the deed to Clinton Woods. Notwithstanding the settlement’s being conducted by MTC, Dixon disclaimed any knowledge of TPC’s ownership of the Clinton Woods property. MTC’s title abstracters apparently did not show the judgments against PIM as a lien on the TPC property until Dixon directed them to do so. Dixon then undertook to withhold money due TPC and to place it in escrow pending a determination of the true ownership of Clinton Woods. Dixon’s withholding of the funds led to an argument with Garland as president of TPC over whether TPC and PIM were one and the same.

The encounter spilled over into the circuit court. There appellants charged that Garland, an officer, director, and stockholder of PIM and TPC fraudulently misrepresented that PIM had “record title” to the Clinton Woods property and that appellants relied on this assertion to their detriment as title was actually held by the subsidiary corporation, TPC. The bill urged that the separate corporate identities of PIM and TPC be disregarded, that the judgment lien against PIM also be imposed on the property of TPC, and, as we have previously stated, that a trust be impressed upon the property and assets of TPC in favor of PIM.

Judge Bowie made it unmistakable that Dixon’s testimony that he assumed the difference in the names TPC and PIM in the title search “was a typographical error” was “incredulous.”

I

Appellants aver that “Garland was the principal, the promoter, the dominating individual in both ... [PIM and TPC]. The corporations were his alter ego.” Ergo, appellants urge that Garland’s domination of the corporations for his personal ends, without regard to their separate corporate identities should not shield TPC from liability in equity for the actions of PIM. That argument is better tailored to fix individual liability upon Garland rather than to hold PIM and TPC liable for representing and acquiescing to the false representation that PIM owned and operated the Clinton Woods property when in fact it was an asset of the subsidiary TPC.

The Court of Appeals has indicated that in an appropriate case it will hold liable in equity the “alleged chief actor” of the perpetration of a fraud “accomplished through the medium of a corporate fiction” where the principal actor “is asserted to have dominated and controlled the intervening corporate entities and, through that domination and control, to have accomplished his personal ends and enterprises.” Crocker v. Pitti, 179 Md. 52, 58, 16 A. 2d 875, 877 (1940). See also William Danzer & Co. v. W. Maryland Ry., 164 Md. 448, 457, 165 A. 463, 466-67 (1933). Crocker is inapposite for at least three reasons: One, Judge Bowie stated he “felt that there was not one iota of fraud in the case”; two, it is patent that the chancellor did not believe that appellants relied upon any misrepresentation by Garland that PIM owned Clinton Woods; three, assuming, arguendo, the truth of appellants’ claim that they were ignorant of the existence of TPC, that TPC was a subsidiary of PIM and that TPC owned Clinton Woods, then TPC could not be a conduit through which appellants and PIM dealt. Under appellants’ own argument, TPC was neither the “alleged chief actor” in the purported perpetration of a fraud, nor was TPC an intervening corporate entity on whom they reasonably relied to their detriment in contracting with PIM.

“When the business corporation is born, the lawyer is the midwife who brings it into existence; while it functions he is its philosopher, guide and friend; in trouble he is its champion, and when the end comes and the last sad rites must be performed, the lawyer becomes the undertaker who disincorporates it and makes final report to the Director of Internal Revenue.”

The Court, in Bethlehem Steel Co. v. Raymond Concrete Pile Co., 141 Md. 67, 118 A. 279 (1922), believed the “instrumentality rule” was applicable. That case involved an action against Bethlehem Steel to recover for the death of an employee caused by the negligent operation of a train owned by a railroad company which was controlled by and almost exclusively owned by Bethlehem.

On appeal, the Court ruled that the trial judge’s grant of appellee’s prayer that recovery could be had against Bethlehem if the deceased was killed by a train being operated “by persons in the employ of or subject to the control of” Bethlehem was erroneous. The error was caused by the trial judge’s reference to the word “control” which might have led the jury to believe that control could be established simply through ownership of the railroad’s stock. After an examination of the “instrumentality rule,” the Court said that in order to hold the steel company liable the jury should “be required to find that the railroad company was merely an instrumentality or adjunct of the steel company, or something to that effect....” 141 Md. at 86, 118 A. at 285.

Unfortunately, the “instrumentality rule,” as with many other guiding legal principles, is not given to a hard and fast definition. It has, however, been summarized in 1W. Fletcher, Cyclopedia of the Law of Private Corporations § 43 (rev. perm. ed. 1974). There it is said:

“[T]he corporate entity is disregarded ... wherein it is so organized and controlled, and its affairs are so conducted, as to make it merely an instrumentality, agency, conduit, or adjunct of another corporation. The control necessary to invoke what is sometimes called the ‘instrumentality rule’ is not mere majority or complete stock control but such domination of finances, policies and practices that the controlled corporation has, so to speak, no separate mind, will or existence of its own and is but a business conduit for its principal.” (Footnotes omitted.)

That the parent corporation owns the subsidiary, Bethlehem Steel Co. v. Raymond Concrete Pile Co., supra at 81, 118 A. at 284, or the stock is held by one person, does not justify a disregard of the corporate entity. Carozza v. Fed. Fin. & Credit Co., 149 Md. 223, 238, 131 A. 332, 338 (1925); Quinn v. Quinn, 11 Md. App. 638, 648, 276 A. 2d 425, 430 (1971).

Courts have considered various alternative factors in determining whether the subsidiary constitutes a mere instrumentality of the parent corporation. Some of those alternatives are expressed in Annot., 7 A.L.R.3d 1343, 1355 (1966):

“(1) the presence in both corporations of the same officers or directors; (2) common shareholders; (3) financial support of the subsidiary’s operations by the parent; (4) underwriting the incorporation and purchase of all of the capital stock of the subsidiary by the parent corporation; (5) the fact that the subsidiary was organized with a grossly inadequate capital structure; (6) a joint accounting and payroll system; (7) the subsidiary lacks substantial business contacts with any save the parent and operates solely with assets conveyed by the parent corporation; (8) in the financial statements of the parent, the subsidiary is referred to as a division of the parent corporation or obligations are assumed to be those of the parent; (9) the property of the subsidiary is used by the parent corporation as its own; (10) the individuals who exercise operating control over the subsidiary exercise it in the interest of the parent; and (11) failure to observe the formal requirements attributable to the operation of a subsidiary.”

See also H. Henn, Law of Corporations § 148 (2d ed. 1970).

Garland, the president and a director of both PIM and TPC, testified that the directors for the corporations were the same, the stock of PIM was paid for but not issued, PIM owned all the equipment used by its subsidiaries, hired their employees, rented their offices, operated their payrolls and unemployment matters, and managed their affairs. At meetings of the boards of directors, inferentially, of PIM,.the business matters of the various corporations were discussed. Separate board meetings for TPC were not held.

Dixon and Litty testified that Garland asserted that the Clinton Woods property was owned by “Process,” without specifying that he was referring to the subsidiary TPC, of whose very existence appellants claimed total ignorance at the time of the December 1972 agreement. We think there was legally sufficient evidence to cast doubt as to the separate corporate identities of PIM and TPC.

II

Appellants’ invocation of the “instrumentality rule” nevertheless, avails them naught as Maryland law is crystalline “that the corporate entity will be disregarded only when necessary to prevent fraud or to enforce a paramount equity.” Bart Arconti & Sons, Inc. v. Ames-Ennis, Inc., 275 Md. 295, 312,340 A. 2d 225, 235 (1975). See Damazo v. Wahby, 259 Md. 627, 633, 270 A.2d 814, 817 (1970); William Danzer & Co. v. W. Maryland Ry., supra at 457, 165 A. at 467; Carozza v. Fed. Fin. & Credit Co., supra at 238, 131 A. at 338; Bethlehem Steel Co. v. Raymond Concrete Pile Co., supra at 81, 118 A. at 284; Quinn v. Quinn, supra at 648, 276 A. 2d at 430. In Bart Areonti, the Court, absent evidence of fraud or similar conduct, refused to “pierce the corporate veil” so as to hold liable, in addition to Areonti, the principals of that company, and two other corporations controlled by the same principals. Even though all three corporations had commingled their equipment, operated out of one place of business belonging to Areonti, permitted Areonti to become dormant while the affairs of the other two corporations improved simultaneously, made personal loans to the principals and transferred insurance policies to them. 275 Md. at 309, 340 A. 2d at 233-34, Judge Levine, writing for the Court, pointed out that there was no finding of fraud or paramount equity and that it was error to go behind the corporate fiction absent such a finding.

Similarly, Chief Judge Northrop, in Gordon v. SS Vedalin, 346 F. Supp. 1178, 1181 (D. Md. 1972), applying the Maryland rule, refused to slash through the corporate screen and hold a shareholder liable, in the absence of fraud or the necessity of protecting a paramount equity, for the corporation’s obligation to purchase a vessel. Judge Northrop noted that “there was significant doubt from the evidence that the legal niceties of corporate existence, such as the formal issuance of stock and corporate meetings, were regularly, if ever, observed,” but filing of the articles of incorporation with the State Department of Assessments and Taxation satisfactorily established the existence of the corporation as a separate entity.

Judge Bowie expressly found that there was no fraud and that no paramount equity was present in the case sub judice which required the intervention of equity’s awesome powers. We are unable to say that his findings on the evidence were clearly erroneous. Md. Rule 1086. We perceive, in the record, no justification for the disregard of corporate identity. Bart Arconti & Sons, Inc. v. Ames-Ennis, Inc., supra.

Ill

Appellants maintain that “the court erred in granting the motion to dismiss” because it applied “the wrong burden of proof to the evidence.” Appellants take issue with the trial judge’s requiring that they demonstrate by “clear and satisfactory” proof that there was a fraud, rather than allowing them to show fraud by a preponderance of the evidence. Judge Bowie did not err. This Court, after a thorough study of the cases on point, Peurifoy v. Congressional Motors, Inc., 254 Md. 501, 517, 255 A. 2d 332, 340 (1969); Bachrach v. Washington United Coop., Inc., 181 Md. 315, 321, 29 A. 2d 822, 825-26 (1943); Rent-A-Car Co. v. Globe & Rutgers Ins. Co., 161 Md. 249, 267-68, 156 A. 847, 855 (1931), concluded in Loyola Fed. Sav. & Loan Ass’n v. Trenchcraft, Inc., 17 Md. App. 646, 659, 303 A. 2d 432, 439 (1973), that the law of Maryland mandates that “proof of fraud in a civil action, either in law or in equity, must be ‘clear and convincing.’ ” See also First Nat'l Bank of S. Maryland v. United States Fidelity and Guar. Co., 275 Md. 400, 411, 340 A. 2d 275, 283 (1975); Garris v. Dickey, 22 Md. App. 618, 630, 325 A. 2d 156, 164 (1974); Goodman v. Poland, 395 F. Supp. 660, 686, n. 17 (D. Md. 1975).

Appellants have not persuaded us that we were wrong in Loyola, and we reject their urging to overrule that case and establish a lesser burden of proof where fraud is alleged.

IV

We make clear that the rule of law in this State is that no matter how flimsily woven is the corporate curtain, it may not be flung aside except to prevent fraud or enforce a paramount equity. Bart Arconti & Sons, Inc. v. Ames-Ennis, Inc., supra.

While not alleged in the bill nor pressed at trial, appellants advance the contention that the evidence had shown that a constructive fraud had been perpetrated upon them. Appellants asserted in this Court that the evidence viewed, as must be in the posture of the case before Judge Bowie, Md. Rule 535, in the light most favorable to them, exhibited fraud, either actual or constructive. What appellants overlook is that they elected to call Garland as an adverse witness pursuant to Md. Cts. & Jud. Proc. Code Ann. § 9-113, and his testimony completely eroded that of the appellants. Garland’s testimony was not contradicted nor impeached, and, hence, it was binding upon the appellants. Gross v. J & L Camping & Sports Center, Inc., 270 Md. 539, 548-49, 312 A. 2d 270, 276 (1973); McClearn v. Southeast Concrete Co., 253 Md. 135, 137-38, 251 A. 2d 896, 898 (1969); Nizer v. Phelps, 252 Md. 185, 203-04, 249 A. 2d 112, 122-23 (1969).

Appellants imply that the chancellor did not consider their argument relative to constructive fraud and estoppel. We think that implication to be ill founded. Judge Bowie made manifest in his oral opinion that “no fraud” was shown by appellants, and that he had not “seen anywhere in the evidence, anything to justify the [c]ourt [in] declaring a paramount equity in their behalf....”

Appellants seem to be advocating a rule of law which would permit relief in constructive fraud or estoppel cases upon the production of evidence amounting in quantum to a preponderance of the evidence.

We fail to see why constructive fraud should require a lesser degree of proof than actual fraud because allegations of either seek the same end result. Indeed, if the former could be proved by a lesser standard than the latter, it would seem that the overwhelming majority of cases in which a form of fraud is alleged would be brought on the theory of constructive fraud so as to minimize the burden carried by the alleger. See generally 37 Am. Jur. 2d Fraud and Deceit § 469 (1968); 37 C.J.S. Fraud §§ 94, 114a (1943).

Judge Bowie, as we have previously stated, found that the appellants had shown “no fraud.” We interpret that unqualified finding to include “constructive” as well as “actual” fraud. There being no clear and convincing proof of either type of fraud, the appellants failed to meet the burden of proof.

Interwoven with appellants’ argument relative to constructive fraud is the averment that the appellee is estopped from asserting as a defense the separateness or isolation of TPC from PIM because of Garland’s supposed misrepresentations.

3 J. Pomeroy, A Treatise on Equity Jurisprudence § 804 (5th ed. 1941), defines equitable estoppel as “the effect of the voluntary conduct of a party whereby he is absolutely precluded, both at law and in equity, from asserting rights which might perhaps have otherwise existed, either of property, of contract, or of remedy, as against another person, who has in good faith relied upon such conduct, and has been led thereby to change his position for the worse, and who, on his part, acquires some corresponding right, either of property, of contract,, or of remedy.” (Footnote omitted.). See Pearre v. Grossnickle, 139 Md. 1, 8-9, 114 A. 725, 728 (1921); Rodgers v. John, 131 Md. 455, 462, 102 A. 549, 551 (1917).

Whether the doctrine is to be applied in a given case is dependent solely upon the particular facts and circumstances of that case. Rodgers v. John, supra at 462, 102 A. at 551. Unless the party against whom the application of the doctrine is sought has been blameworthy “of some unconscientious, inequitable or fraudulent act of commission or omission upon which another has relied and been misled to his injury, the doctrine will not be applied.” Id; Pearre v. Grossnickle, supra at 9, 114 A. at 728-29. See also Savonis v. Burke, 241 Md. 316, 319-20, 216 A. 2d 521, 523 (1966); Bayshore Indus., Inc. v. Ziats, 232 Md. 167, 176, 192 A. 2d 487, 492 (1963).

Judge Prescott (later Chief Judge), for the Court, in J.F. Johnson Lumber Co. v. Magruder, 218 Md. 440, 448, 147 A. 2d 208, 212 (1958), added, as a condition precedent to the availability of equitable estoppel, reasonable diligence. Where the one who claims the aid of the doctrine of estoppel has not acted with such diligence, equity will afford him no relief. Savonis v. Burke, supra at 320, 216 A. 2d at 523; Rupp v. M.S. Johnston Co., 226 Md. 181, 190, 172 A. 2d 875, 880 (1961).

The two obvious answers to appellants’ attempt to apply the doctrine of estoppel to. the facts of the instant case are: 1) The trial judge, as finder of fact, did not believe on the basis of appellants’ evidence that there was an “unconscientious, inequitable or fraudulent act of commission or omission” on the part of Garland which misled Dixon and Litty to their detriment. From review of the record, we are unable to declare that Judge Bowie’s findings, bottomed upon the evidence, were clearly erroneous. Md. Rule 1086. 2) Appellants failed to illustrate that they exercised reasonable diligence to protect themselves from what they perceive as the wrong about which they presently lament. In fact, the appellants may well have demonstrated their lack of diligence through the testimony of the appellant Dixon and Daniel Kammer, a vice-president of the Union Trust Company. The transcript reveals that in the early part of 1972, Dixon was approached by Healey and offered the opportunity to invest in Clinton Woods. The information supplied to Dixon by Healey disclosed that the contract for the development was between TPC and the Ryland Group, Inc. Dixon examined the contracts and declined to invest. Mr. Kammer testified that his bank did business with TPC and that a check made by the counsel for the bank at its request disclosed the existence of PIM and TPC as two different corporations. Moreover, an inference may be drawn from the evidence that MTC’s “free lance” title abstracter considered PIM and TPC as two distinct corporations inasmuch as he did not list the appellants’ judgment against PIM as being a lien on the TPC property, known as Clinton Woods. Dixon, being a seasoned title expert and real property attorney, as well as a developer of land, could have easily and quickly ascertained the name of the titleholder to Clinton Woods. We think the chancellor correctly held that appellants had not demonstrated a paramount equity necessitating the scuttling of the barrier of corporate protection to satisfy the disillusioned creditors.

V

Finally, appellants aver that TPC carried on business under other titles and designations, namely, “Process” and “Process, Incorporated,” or “Process, Inc.,” in violation of Md. Ann. Code art. 2, § 18. That statute requires “[a]ny person or persons, engaged in any mercantile, trading or manufacturing business as an agent or agents, or doing business in any name or under any title or designation other than his or their own names,” to file a certificate with the clerk of the circuit court and with the Department of Assessments and Taxation “disclosing, the true and correct name or names ... of the principal or principals or true owner or owners of the said business.” Section 20 of the same article grants additional protection in cases of failure to file the certificate provided for in § 18, to “any person or corporation who -shall become a creditor of such person or persons.”

The manifest purpose of the quoted §§ 18 and 20 of Article 2, the Agents and Factors Act, is to protect creditors from the misleading machinations of persons engaged in “mercantile, trading or manufacturing business[es]... under ... other than his or their own name or names----” See Mundon v. Taxicab Co., 151 Md. 449, 455, 135 A. 177, 180 (1926). As we see it, the word “person” as utilized in both §§ 18 and 20 reasonably includes “corporation.” Md. Ann. Code art. 1, § 15. Neither section, however, affords appellants any support in the instant case inasmuch as the evidence does not establish an agency relationship between PIM and TPC. Moreover, none of the corporate entities, see n. 5, supra, is engaged in a “mercantile, trading or manufacturing business” within the ambit of Md. Ann. Code art. 2. The ostensible purpose of §§ 18 to 20 is to protect the rights of agents’ creditors who finance the agents’ purchase of inventory. See In re Lexington Appliance Co., 202 F. Supp. 869, 871-72 (D. Md. 1962); Stiller, Inventory and Accounts Receivable Financing: The Maryland Maze, 18 Md. L. Rev. 185, 224-25 (1958).

Appellants would have us impose upon all corporations with subsidiaries the additional duty of registering their corporate names pursuant to the “Agents and Factors Act.” By so doing, we would add an elasticity to the language of the “Agents and Factors Act” that would permit its being stretched far beyond the purpose intended by the General Assembly. We decline to do so.

Judgment affirmed.

Costs to be paid by appellants.

      . According to W. Blaekstone, Commentaries on the La ws of England *468-469 (1898), “The honor of originally inventing” the corporate concept falls to the Romans. The first corporations (corpora, corpora,ta) were bodies politic consisting of “separate societies of every manual trade and profession. They were afterwards much considered by the civil law.” Id. For an interesting history of corporations see McKim v. Odom, 3 Bland 407, 415-20 (1828).

      . PIM did not file a brief in this proceeding. We observe from the record that the corporate charter of PIM was forfeited by proclamation on December 20, 1976. See Md. Corp. & Ass’ns. Code Ann. § 3-503.

      . George C. Marshall (1880-1959), Biennial Report of the Chief of Staff, United States Army, September 1, 1945.

      . Appellants apparently find no solace in John Kenneth Galbraith’s (1908- ), The Great Crash, 1929, ch. 1 (1955), that “nothing is ... lost but money.”

      . The other subsidiary corporations were Development Process, Inc.; Resident Planned Communities, Inc.; Development Exchange, Inc.; Frederick Process, Inc.; Harford Process, Inc.; Community Dev. & Const. Corp.; Phase One, Limited; Phase Two, Limited; Tricore Corporation and Process Incorporated of Columbia.

      . Had Mr. Litty been mindful of the words of Jane Austen (1775-1817) in Emma, ch. 34 (1815) that “[b]usiness ... (may bring money, but friendship hardly ever does,” he may not have become an appellant in this ligitation.

      . By so doing, the parties sought to avoid the payment of transfer tax more than once.

      . The judgments were for the face amount of the notes plus interest. A motion to vacate was filed as to each of the judgments. After a hearing, the court entered a judgment absolute on the $25,000 note for $31,350 and on the $50,000 note for $61,416.64, which included interest to September 30, 1975. The court, on April 4, 1975, had overruled the motion to vacate as to the $40,213.05 judgment.

      . The 1972 federal corporation income tax return of PIM indicated that it owned 100% of TPC. When stock was finally issued in TPC in December 1975, after suit was filed, it was issued to Garland and another individual and not to PIM as originally intended because PIM “was no longer functional.” By the time of the trial in May 1977, Garland had allegedly gone into bankruptcy.

      . At the trial of the case, Dixon admitted that Garland’s trustee in bankruptcy had conveyed the 384 acre 1 Chaney tract to Dixon and Litty trading as Benedict Associates.

      . The role of the lawyer and his relationship to a business corporation is colorfully stated by Roy A. Redfield in Factors of Growth in a Law Practice 30 (1962):

      . While it is not clear from the case, the “instrumentality rule” may have been used without designation as such by the Court of Appeals in United Laundries Co. v. Bradford, 133 Md. 363, 368, 105 A. 303, 305 (1918), where the Court, in reviewing the legal sufficiency of the evidence to support a jury’s verdict against a defendant corporation, said that the trial judge properly rejected a directed verdict “in favor of ... the defendant ... [corporation] which controlled and conducted, through the other defendant ..., the business in the course of the operation of which the accident to the plaintiff occurred.” See also Baltimore Transit Co. v. Swindell, 132 Md. 274, 278, 103 A. 566, 567 (1918); Annot., 38 A.L.R.3d 1102 (1971).

      . See Md. Corp. & Ass’ns. Code Ann. §§ 1-205 and 2-102 (b). At the trial of the instant case, certified copies of the corporate charters of PIM and TPC were produced and proved their corporate existence.

      . Mr. Stiller observes that “[o]nly three other [S]tates, Virginia, West Virginia, and Mississippi, have similar laws, but the others, variously known as ‘Trader’s Acts’ or ‘Sign Statutes’, substitute a sign on the agent's premises for the recording of the Maryland Act.” 18 Md. L. Rev. at 225.


author: Wilner, J.,

text:
    DONALD S. CARUTHERS and DONALD P. WRIGHT, Personal Representatives of the Estate of Joseph D. Buscher v. EARL BUSCHER
    [No. 616,
    September Term, 1977.]

      Decided February 10, 1978.

      The cause was argued before Melvin, Wilner and Couch, JJ.

      Arthur C. Elgin, Jr., with whom were Arthur C. Elgin and Jackson, Campbell & Parkinson on the brief, for appellants.

      Albert E. Brault, with whom were Brault, Graham, Scott & Brault on the brief, for appellee.
   Wilner, J.,

delivered the opinion of the Court.

This is an appeal by the Personal Representatives of the late Joseph D. Buscher from the sustaining of exceptions to their Second Account by the Circuit Court for Montgomery County, sitting as an orphans’ court. The issue is whether the Personal Representatives were authorized to make payments on the mortgage that encumbers the property 2112 Firethorn Road. To resolve it, we must construe Mr. Buscher’s Will, and, in light of that construction, consider the relationship between two sections of the Estates and Trusts article — § 4-406, dealing with “exoneration”, and § 7-401, describing the authority of personal representatives.

I. BACKGROUND

Joseph D. Buseher was a distinguished Maryland attorney. He died on July 8, 1975, a resident of Montgomery County, leaving a Will dated June 2,1975. The pertinent provisions of that Will are as follows:

(1) Paragraph FIRST directs the personal representatives, among other things, “to pay out of my estate all of my just debts.”

(2) Paragraph SECOND, captioned “Special Bequests, Intentions and Testator’s Declaration of Policy”, contains a number of specific gifts to friends and relatives. Subparagraph (g) disposes of Mr. Buscher’s interest in two condominium units in Florida. It provides:

“I give, devise and bequeath, in fee simple, my interest in condominium unit No. A-8 located in Chateau Belleair, 2205 Belleair Road, Clearwater, Florida, including all of my personal property therein, to DONALD P. WRIGHT, subject to his assuming the encumbrance thereon. I also give, devise and bequeath my one-half interest in condominium unit No. B-12 located in said Chateau Belleair, in fee simple, to DONALD P. WRIGHT, who is the owner of the other one-half interest. If said DONALD P. WRIGHT should predecease me, then all of my interest in condominium unit B-12 shall vest, in fee simple, to MRS. DOLOROS V. WRIGHT, her heirs and assigns.” (Emphasis supplied.)

Subparagraph (i) disposes of the property at issue here. It provides:

“My real property and improvements thereon located at and known as 2112 Firethorn Road, Middle River, Baltimore County, Maryland, I give and devise, in fee simple, to MRS. DOLOROS V. WRIGHT and her son, DONALD P. WRIGHT, or the survivor of them.”

(3) Paragraph TENTH divides the residue of the estate (after a number of other specific bequests in paragraphs SEVENTH, EIGHTH, and NINTH) equally among Mr. Buscher’s brothers and sisters, one of whom is appellee, Earl Buscher.

(4) The last paragraph designates appellants Donald S. Caruthers and Donald P. Wright as personal representatives.

The bulk of Mr. Buscher’s estate consists of improved real estate, all of which is encumbered. In addition to the interests in the two Florida condominium units, there are four properties in Baltimore City, two (including 2112 Firethorn Road) in Baltimore County, and one in Montgomery County. Of all of this, only the two condominium units and 2112 Firethorn Road are the subject of specific devise; the rest fall into the residuary estate. The encumbrances on the three properties specifically devised were in existence prior to June 2, 1975 — the date of the will.

In the course of their administration of the estate, Messrs. Caruthers and Wright filed a First Account, in which they acknowledged certain disbursements for 2112 Firethorn Road, part of which consisted of payments on the mortgage; however, no exceptions were filed to that account. On January 19, 1977, they filed their Second Account. This showed, as to 2112 Firethorn Road, income from July 8,1976 through January 7, 1977, of $1,680, and expenses, for the same period of $2,745. On March 4, 1977, Earl Buscher filed exceptions to the Second Account, objecting to the allowance for expenses incurred with respect to 2112 Firethorn Road. Pointing out that the devisee of that property, Mr. Wright, was also a “co-executor”, the exceptant “suggested that to charge these disbursements to the estate which benefits the co-executor is a violation of his fiduciary obligations to the residuary beneficiaries.” He therefore requested that those disbursements be disallowed “to the extent that they exceed the receipts which are included among the assets of said estate.”

The Second Account, as noted, did not specify the disbursements made on account of the property, but showed only total income and total expenses, resulting in an excess of disbursements over income of $1,065. At the hearing on the exceptions, somehow the allowances made on the First Account were considered along with those on the Second Account, even though the exceptions clearly related only to the Second Account.* * Apparently, in the First Account, the personal representatives reported income of $2,756 and disbursements of $1,922, producing a surplus of $834. Taking the two accounts together, the net deficit is only $231.

The court sustained the exceptions to the Second Account to the extent of the payments of principal and interest on the mortgage (for which allowance was sought in that account) and overruled all others. We are advised that of the allowances sought in the Second Account with respect to 2112 Firethorn Road, $627 was for payments on the mortgage. In furtherance of its decision, the court directed the personal representatives to reimburse the estate for the amount of those mortgage payments, and enjoined them from making any further such payments. The personal representatives have appealed from both aspects of the order, asserting that (1) they were not wrong in making the mortgage payments, and (2) in any event, if there is to be reimbursement, it should come from Mr. Wright as devisee of the property and not from Wright and Caruthers as personal representatives.

II. EXONERATION

Until 1969, Maryland followed the common law with respect to exoneration. At common law, the personal estate of a testator was the natural and primary fund for the payment of debts. This meant that, even when real estate was expressly charged with the payment of a debt {eg., subject to a mortgage), no resort could be had to the realty for the payment of the debt unless and until the personalty was exhausted. Thus, absent exoneration by the testator (exoneration of the personalty), an encumbrance on real estate would be paid from the personalty in the estate; and, to the extent the personalty was sufficient, the real estate would pass free of the encumbrance. All of this was explained by the Court of Appeals in Tobiason v. Machen Exec., 217 Md. 207 (1958).

Exoneration, the Court said, may be accomplished “by the express terms of the will or by reasonable and satisfactory implication therefrom.” It is clear from Tobiason, however, that the phrase “reasonable and satisfactory implication” was to be narrowly construed. Quoting from Miller, Construction of Wills, § 387, the Court noted that “very clear expressions are required in order to fasten the incumbrance on the property”, and that a devise of real estate “subject to a mortgage” was not a sufficiently clear expression. The doctrine was firmly imbedded in the law, and a testator is “presumed to have known the law, as it existed when he made his will and that he made his will in reference to it; that is to say, both the common law and the statutory law, including the interpretation which the latter would receive from the courts.”

Finally, the Court observed that it was not unmindful of the fact that the common law doctrine of exoneration was not considered a popular one, but that it was so well established that, if it were to be changed, the Legislature would have to change it. Despite this invitation by the Court of Appeals, joined in by the Maryland Law Review several months later, no effort was made to enact legislation abrogating or modifying the common law rule until 1969.

In late 1968, the Second Report of the Governor’s Commission to Review and Revise the Testamentary Law of Maryland (generally known as the “Henderson Commission”, after its Chairman, retired Chief Judge William L. Henderson) was presented to the General Assembly. Attached to the Report — indeed, comprising the Report — was draft legislation to rewrite entirely the testamentary law of the State, then codified primarily in Article 93 of the Code, along with the Commission Comments explaining each section of the proposed new law. The Commission accepted the Court’s ten-year old invitation, and recommended a substantial modification of the common law doctrine of exoneration. This appeared as proposed § 4-406, which was adopted by the General Assembly without change. With but minor style changes, it now appears as § 4-406 of the Estates and Trusts article, as follows:

“Unless a contrary intent is expressly indicated in the will, a legacy of specific property shall pass subject to a security interest or lien on the property which existed at the time of execution of the will or which is a renewal, extension, or refinancing. If a security interest or lien is created or attaches initially after the execution of the will, the legatee is entitled to exoneration.” (Emphasis supplied.)

Since the mortgage in question existed prior to the execution of the Will, Mr. Wright is not absolutely entitled to exoneration. The question, therefore, is whether a “contrary intent” — i.e., an intent to exonerate the real estate — “is expressly indicated”? What quantum of evidence must appear in the Will in order to establish the contrary intent? To answer this, the parties would have us searching through assorted dictionaries, Words and Phrases, and various cases in which one or the other of these words — “expressly” or “indicated” — have been used or defined. This does not appear to be necessary, as there are sufficient guides within the Estates and Trusts article itself from which we may glean the legislative intent.

Section 1-210 (d) of the article establishes certain rules for the distribution of shares per stirpes, “unless a contrary intention expressly appears” in the will. In Sollers v. Merc.-Safe Dep. & Trust, 262 Md. 606 (1971), the Court twice viewed the quoted phrase as meaning “in the absence of a clear expression of contrary intention”. 262 Md. at 610. The expression of the contrary intention, under that language, must therefore be “clear”.

The very words at issue here — “expressly indicated” — appear numerous times throughout the article, in essentially the same context as they appear in § 4-406. One of the more significant is § 4-405, which deals with what happens when, after the execution of a will, changes occur with respect to securities that are the subject of a specific legacy under the will. It provides:

“Unless a contrary intent is expressly indicated in the will, if securities are the subject of a specific legacy and after the execution of the will other securities of the same or another entity are distributed to the testator because of his ownership of the original securities, whether as a result of a partial liquidation, stock dividend, stock split, merger, consolidation, reorganization, recapitalization, redemption, exchange, or other transaction, and if these securities are part of the estate of the testator at his death, the specific legacy includes the additional or substituted securities.” (Emphasis supplied.)

The Comment to this section, drafted by the Henderson Commission and adopted by the General Assembly, is as follows:

“Under prior Maryland law shares of stock received by a testator as a dividend after execution of a will did not pass to the specific legatee of the original stock. Hicks v. Kerr, 132 Md. 693,104 A. 426 (1918). Consistent with the notion of having all provisions of a will speak as of the date of the testator’s death, unless a contrary intention expressly appears, the new statute adopts this notion with respect to stock dividends received by the testator between the time of execution of the will and the time of his death. The word ‘expressly’ has been added near the end of the sentence to indicate that such determination should not be left to the sometimes elusive reasoning which has characterized quests for the ‘testator’s intention’in the courts. See Sykes, § 86.” (Emphasis supplied.)

This Comment, though obviously not part of the statute itself, is nevertheless highly significant in that, first, it equates the words “expressly indicated” with “expressly appears”, thereby making relevant the Court’s view of the latter expression in Sollers, and second, it focuses on the word “expressly” as indicative of an intent not to leave the determination “to the sometimes elusive reasoning which has characterized quests for the ‘testator’s intention’ in the courts.”

A further interpretative guide appears with respect to § 4-407, dealing with the exercise of a power of appointment. That section provides:

“Subject to the terms of the instrument creating the power, a residuary clause in a will exercises a power of appointment held by the testator only if:
(1) An intent to exercise the power is expressly indicated in the will; or
(2) The instrument creating the power of appointment fails to provide for disposition of the subject matter of the power upon its nonexercise.” (Emphasis supplied.)

The Comment to that section states, in relevant part:

“To satisfy the phrase ‘expressly indicated’ in clause (i) of § 4-407 [ET, § 4-407 (i)] it is not intended that the particular source of the power, i.e., ‘under my father’s will’ must be identified. It is intended that such language as ‘All of the rest of my estate and property, including all property over which I may have any power of appointment, I give, devise and bequeath to’ etc., will fully exercise any power, whether general or special, held by the testator whose terms of exercise are consistent with the language used in such testamentary disposition.” (Emphasis supplied.)

Here again is a clear indication that, although the source of the power need not be stated, a specific statement of the intent to exercise the power (i.e., the “contrary intent”) is required.

What emerges from all of this is that, by using the words “expressly indicated”, and tacitly accepting the interpretations of that phrase provided in the Comments, the General Assembly desired that the intent to exonerate the specific realty be clearly stated in the will, and that it not arise or be presumed by implication. The intent must be stated clearly, expressly, and specifically in the will, so that a court need not be put to the burden of engaging in that “sometimes elusive reasoning” to ferret it out.

This becomes all the more clear when one considers the underlying purpose of § 4-406. Under the common law, as explained in Tobi&son, “very clear expressions” were required in order to exonerate the personalty. There is no reason to suppose (and no evidence to support) that, in deciding to exonerate the personalty rather than the realty, as a matter of law, the General Assembly would have desired its will to be thwarted by anything less than the same “very clear expressions”.

The Will of Joseph D. Buscher does not suffice to so express that contrary intent. There is no expression of exoneration at all in Paragraph SECOND (i) — the clause in which the specific devise of 2112 Firethorn Road is made. At best, an intent to exonerate that property may be inferred either (1) from the general direction to the personal representatives to pay “all of my just debts”, of which the mortgage in question would presumably be one, or (2) from the distinction between the specific devise of one of the Florida condominium units in Paragraph SECOND (g), subject to the devisee (also Mr. Wright) assuming the existing encumbrance on it, and the omission of that condition in the devise of 2112 Firethorn Road. Neither of these, nor the two together, however, constitute a clear expression of exoneration with respect to the particular property in question. We may speculate as to what Mr. Buscher intended — whether he was actually (as opposed to presumably) aware of § 4-406, why he inserted the condition with respect to one piece of property but not as to any of the others, whether he considered the general direction to pay his debts as applying to this or any of the other mortgages — but that is not what the statute permits. If a particular piece of realty is to be exonerated, the Will must make expressly clear that that piece of realty is, indeed, to be exonerated. Otherwise, it is not exonerated.

III. LIABILITY OF PERSONAL REPRESENTATIVES

The fact that the property in question was not entitled to be exonerated — that the mortgage is not to be paid from the personalty of the estate — does not necessarily mean that the personal representatives were wrong in making payments on the mortgage, or that they should be required to reimburse the estate.

Section 7-401 (a) provides that, in the performance of his duties, a personal representative may “exercise all of the power or authority conferred upon him by statute or in the will, without application to, the approval of, or ratification by the court.” One of the statutory powers is contained in § 7-401 (q), as follows:

“If assets of the estate are encumbered by a mortgage ... and if it appears to be in the best interests of the estate, he [the personal representative] may pay the encumbrance, or convey or transfer the assets to the creditor in satisfaction of his security interest, in whole or in part, whether or not the holder of the encumbrance has filed a claim.”

In this context, of course, the general direction to pay all just debts is relevant both as a direct authority in the will to make the mortgage payments and as a clear indication that the statutory power in § 7-401 (q) is not “validly limited by the will.”

It is apparent from the Comments to §§ 7-401 and 4-406 that the General Assembly desired those two sections to be read together, harmoniously. A Comment to § 7-401 (q) states that the intent of that section is “merely to grant the powers therein set forth, but not to affect the substantive provisions of § 4-406.” The Comment to § 4-406 states, in part:

“Under § 7-401 (s) [ET, § 7-401 (q)] the personal representative may discharge any encumbrance or security interest. If he does so, the legatee may be required to reimburse the estate therefor if, pursuant to § 4-406, there is no exoneration.”

There is ho allegation here, and certainly no evidence in the record to show, that the payments heretofore made on the mortgage by the personal representatives were not in the best interests of the estate. Indeed, at oral argument, appellee conceded that his only interest was in seeking reimbursement to the estate, and that such reimbursement should come from Mr. Wright as the devisee of the property, rather than from the personal representatives. Reading §§ 7-401 (q) and 4-406 together, and especially in light of the explanatory Comment to § 4-406, we believe this would be the appropriate relief.

As the personal representatives were authorized to make the mortgage payments under § 7-401 (a) and (q), notwithstanding the lack of exoneration of the realty, the exceptions to the allowance of those disbursements should have been overruled, without prejudice, of course, to whatever rights the exceptant or the personal representatives may have to seek reimbursement from Mr. Wright as specific devisee. We express no opinion as to whether, or to what extent, the “best interests of the estate” would continue to be served by any further payments on the mortgage, this being a matter for the personal representatives, and on review the Circuit Court, to determine.

Order sustaining exceptions to second account reversed; case remanded for entry of an order in conformity with this opinion; appellee to pay the costs.

      . Doloros V. Wright assigned all of her interest in this devise to her son, Donald. He is therefore the sole devisee.

      . We here take notice of a gap in both the record and the Code. The certificate of mailing, attached to the Second Account, shows that on January 18, 1977, the account was filed with the Register of Wills of Montgomery County, and a copy of it was mailed to all interested persons. The account is stamped “Received” by the Register on January 19, 1977. Estates and Trusts article, § 7-301 requires a personal representative to file written accounts “in the manner prescribed in this subtitle” (emphasis supplied). Nothing in subtitle 3, however, states where these accounts are to be filed. Section 7-501 (a) implies that the account is to be filed “with the court”, the word “court” meaning, in Montgomery County, the Circuit Court sitting as an orphans’ court, and not the register. See § 2-101. An even more significant question than where to file the account arises from § 7-501 (b). This requires that exceptions to an account be filed with the register “within 20 days of the approval of the account by the court.” The problem is that (1) nowhere in the Code is there any requirement that an interim account be approved by the court, although the Attorney General has inferred such a requirement (see 57 Op.Atty.Gen. 566 (1972)), and (2) assuming that such a requirement exists, there is no statutory or other direction as to how or when this approval is to take place. The time for filing exceptions is pegged to court approval of the account; and yet, not only is this base point entirely open-ended, but there is no provision for notice to anyone as to when (or if) it has occurred. The record in this case gives no indication that the Second Account was approved prior to the filing of the exceptions, and thus, presumably, the exceptions were timely filed.

      . The court discussed with counsel the question of whether exceptant had waived his right to object to allowances included on the First Account, but did not decide the matter. Section 7-501 (b) was not discussed, and indeed the record does not indicate whether (or when) the First Account was approved. The court raised the interesting question of whether any of these objections could be raised in the form of exceptions to the final account. If so, § 7-501 (b) would be meaningless. That question is not now before us, however, and we therefore do not decide it.

      . The other disbursements were for repairs and maintenance.

      . Cf. Stieff v. Millikin, 162 Md. 245 (1932).

      . See casenote appearing in 19 Md.L.Rev. 247 (1959).

      . See, for example, §§ 4-403,4-404 (a), 4-405,4-407,4-408,4-410,8-102. The term is becoming a popular one. See Real Property article, § 2-113; also art. 43, § 273A (the generic drug law), where, in 1977, the General Assembly substituted the words “expressly indicates” for "explicitly states".

      . The statement that the word “expressly” was added “near the end of the sentence” is obviously in error. The word appears only once in the section, near the beginning, as an adverb modifying the predicate adjective “indicated”.

      . It is interesting to note that, despite its frequent appearance, the phrase in question was not the exclusive term used by the General Assembly in this context. In other sections of the article, the General Assembly required certain rules or procedures to be followed unless “otherwise provided” m the will [§§ 4-105 (d), 4-411 (c), 6-204, 7-304, 9-102], or unless the language of the will “manifests an intent” [§ 4-107], or the will does not provide otherwise “expressly or by necessary implication” [§ 4-105 (a)]. Conversely, however, some sections require the will to “expressly state” a contrary intent [§ 3-301 (b) (4)], or that such intent be “specifically provided” [§ 3-208 (b)]. Thus, a comparison of terms, in pursuance of the maxim that “if the Legislature wanted such and such it could have said so as it did elsewhere” is not of much assistance here. Neither are we helped by what other States have done. Although a number of States have modified the common law doctrine with statutes similar to § 4-406, it does not appear that any of them have used the words “expressly indicated” to denote the criterion for establishing the contrary intent. See Annotation, Right of Heir or Devisee to Have Realty Exonerated From Lien Thereon At Expense of Personal Estate, 4 A.L.R.3d 1023, 1049-1057. By way of example, The Model Probate Code, § 189, provides that a specific devisee of realty takes subject to the mortgage unless “the will provides expressly or by necessary implication that such mortgage be otherwise paid.” The Uniform Probate Code, § 2-609, provides simply that “a specific devise passes subject to any mortgage interest existing at the date of death, without right of exoneration, regardless of a general directive in the will to pay debts.” A Comment to § 3-814 of the Uniform Probate Code, which is the counterpart to Estates and Trusts article, § 7-401 (q), notes, with respect to § 2-609 that “unless the will indicates to the contrary”, a specific devisee of mortgaged property takes subject to the lien. The Massachusetts statute, Ch. 191, § 23, Annot. Laws of Mass., requires that the contrary (i.e., exoneration of the realty) “shall plainly appear by his will”. The New York statute, Estates, Powers and Trusts Law, § 3-3.6, follows the Model Probate Code, and requires that the testator have “expressly or by necessary implication indicated otherwise.” New Jersey requires the will to “expressly or impliedly direct” that the mortgage be paid from the personalty (§ 3A:26-1, N.J. Stat. Annot.).

      . See Fidelity Union Trust Co. v. Laise, 60 A. 2d 250 (N.J., 1948) holding specifically that a general direction to executors to pay debts does not suffice to exonerate real estate subject to a mortgage. See also In re Fogarty’s Estate, 300 N.Y.S. 231, 237 (1937); and In re Cloninger’s Estate, 112 P. 2d 139 (Wash., 1941). But cf. Succession of Waterman, 298 So. 2d 731 (La., 1974), reaching a contrary result which we decline to follow.

      . See § 7-401 (a).