text:
    EMORY EDWARD REED v. STATE OF MARYLAND
    [No. 1214,
    September Term, 1981.]

      Decided September 3, 1982.

    The cause was argued before Gilbert, C. J., and Moore and Wilner, JJ.

      Clarence W. Sharp, Assigned Public Defender, for appellant.

      Stephen B. Caplis, Assistant Attorney General, with whom were Stephen H. Sachs, Attorney General, Paul S.

      Podolak, State’s Attorney for Cecil County, and John L. Scarborough, Assistant State’s Attorney for Cecil County, on the brief, for appellee.
   Moore, J.,

delivered the opinion of the Court.

This appeal stems from the conviction of appellant, Emory Edward Reed, on six of the fifteen counts with which he was charged as a result of his participation in a series of criminal events occurring on September 4, 1980. Appellant was tried jointly with Arnold Murray Moore, who also participated in the escapade and was similarly convicted. Both defendants were represented by the same attorney at trial. However, only Moore was present throughout the trial. Reed failed to return to the courtroom following a recess on the first day of trial and the proceedings continued in his absence. On appeal he contends:

1. That his rights to a fair trial and due process were violated when the trial proceeded in his absence.
2. That he was denied effective assistance of counsel and due process by virtue of a conflict of interest arising from the joint representation of appellant and Moore by the same attorney.
3. That the trial court erred in permitting the consolidation of appellant’s case with Moore’s for purposes of trial.
4. That the evidence was insufficient to support appellant’s convictions; and
5. That he was denied his right to a speedy trial.

We conclude that appellant’s contentions regarding trial counsel’s alleged conflict of interest are best left for resolution through other available procedures such as post conviction relief under Md. Ann. Code Art. 27 § 645A et seq., (1957, 1982 Repl. Vol.). We also find that appellant’s remaining contentions lack sufficient merit to warrant reversal of his convictions. We shall therefore affirm.

I

The evidence at trial showed that in the early evening hours of September 4, 1980, appellant Reed and his codefendant, Moore, along with three other males and a female, Debbie Coates, traveled by car from New Castle, Delaware, to the home of one Noah R. Johnson, Jr., in Elk Mills, Maryland. Johnson had attended a party with Debbie Coates four days earlier at a trailer park in Chesapeake City, Maryland, and while at the party she had lost some items of jewelry during an altercation with another female, Kathy Bruner. Coates had prevailed upon Reed, Moore and the other males to assist her in recovering the jewelry but they needed Johnson’s assistance to lead them to the Bruner trailer because Coates could not recall its location.

The group from New Castle arrived at Johnson’s residence shortly after he had returned home from work. According to the testimony, appellant left the car in which the group had been traveling and entered the front door of Johnson’s residence. After determining Johnson’s identity, appellant walked to where Johnson was napping on the floor, grabbed Johnson by the hand and yanked him up and out the door. Appellant then grabbed Johnson by the hair, herded him down the porch steps into the waiting car, and demanded that Johnson take the group to the Bruner trailer.

Johnson testified that as he was being forced into the vehicle, he was struck by appellant on the side of the head with an implement described as a twisted cane. He also stated that during the journey to the trailer he was taunted and punched repeatedly, and that at one point he was threatened by an automatic pistol first brandished by Reed and then subsequently passed around to other occupants of the car until it came into the possession of the driver, Moore.

Johnson directed his abductors to the Bruner trailer and upon their arrival, Reed, Moore, and another male departed from the car and entered the trailer. There they found a babysitter and Bruner’s three children. Bruner and her roommate, Steve Losten, were not there. Reed, Moore and the other male began to search the trailer for the missing jewelry. Johnson and the others subsequently were brought into the trailer to aid in the search. Johnson testified that he found one piece of the jewelry on the floor where the two girls had fought.

During the search a car bearing Bruner and Losten pulled up out front. Reed left the trailer and returned, pulling Losten with him by the hair. Reed asked Losten about the jewelry and about Losten’s role, if any, in the fight between Bruner and Coates. The testimony indicates that Reed then struck Losten in the face with the twisted cane. Shortly thereafter, all of the visitors, with the exception of Johnson, began beating Losten with their fists, and with clubs, and other implements. They then left the trailer, after removing Losten’s .22 caliber rifle from a gun rack on the bedroom wall.

Once outside, the group witnessed the approach of a van containing four friends of Noah Johnson. The van pulled up in front of the Bruner trailer, and following a verbal exchange between its occupants and those of the car, the car sped off with Reed, Moore, Coates, Johnson and the other three males inside. The van with its original four occupants plus Losten, followed in pursuit until the car pulled into the parking area of a liquor store. As the van approached the car, one of the occupants of the car opened fire on the van with the automatic pistol. The evidence indicates that three or four shots were fired from the passenger’s side of the front seat of the car where Moore was situated. The evidence further showed that at least two of the shots struck the passenger side of the van, but that none of the van’s passengers was hit.

The car then drove away from the liquor store, and the van again pursued. After traveling several miles, the car turned, proceeded down a dirt road and stopped. Moore exited the car. with the pistol, and Reed with the rifle that had been taken from the trailer. The car continued down the dirt road while Reed and Moore took up positions in the woods. As the van approached, they opened fire. The van reversed direction and proceeded to a nearby house. The police were summoned. Moore and Reed rejoined their cohorts in the car, and proceeded down the dirt road in search of an alternate route of escape. Finding no way out, they attempted to turn the vehicle around. It was at this point that the police arrived and apprehended them.

Reed and Moore were each arraigned on a fifteen count indictment for their participation in the day’s events. Both were represented by the same attorney. Although their cases were originally scheduled for trials on separate days, they were consolidated upon the State’s motion. Appellant’s counsel consented to the consolidation.

The cases went to trial in the Circuit Court for Cecil County (Mackey, J.). Following extensive voir dire, a panel of prospective jurors and alternates was chosen. Before swearing the jury, however, the court recessed for lunch, instructing all to return to the courtroom at five minutes of one. Appellant failed to return to the courtroom as instructed, and after police broadcasts for him were issued, and efforts were made to locate him at his home and at a local hospital, the trial judge, on the record and out of the jury’s presence, concluded that appellant had voluntarily absented himself from the trial. Relying on the authority of Md. Rule 724, the court decided to continue with the proceedings in appellant’s absence.

Appellant’s trial counsel then noted on the record the "untenable position” in which he had been placed by virtue of appellant’s absence. He sought to have the jury instructed upon its return that its members should draw no detrimental inference against Mr. Moore from appellant’s absence. He also requested that his appearance on behalf of appellant be stricken and, in the alternative, that the case against appellant be continued. Both motions were denied, but the trial judge agreed to give the requested instruction.

The jury was returned to the courtroom and sworn. The court then gave an instruction concerning appellant’s absence. The trial lasted approximately three days. The jury convicted each defendant of kidnapping, use of a handgun in the commission of a crime of violence, carrying concealed deadly weapons, carrying a dangerous and deadly weapon openly with the intent to injure, theft, assault and battery, and three counts of assault with intent to murder.

Appellant was sentenced to a total of twenty-five years in prison, and five years’ probation following his release from prison. He then noted this appeal.

II'

i

It is a fundamental principle that the accused in a criminal case has the right to be present at every stage of his trial. That right emanates from the common law, Tisdale v. State, 41 Md. App. 149, 396 A.2d 289 (1979), but is both protected and preserved by relevant provisions of the Federal and State Constitutions. The right of a criminal defendant to be confronted with the witnesses against him is guaranteed by both Article 21 of the Maryland Declaration of Rights and by the Sixth Amendment to the Federal Constitution made applicable to the states through the Fourteenth Amendment, von Lusch v. State, 31 Md. App. 271, 356 A.2d 277 (1976), rev’d on other grounds, 279 Md. 255, 368 A.2d 468 (1977).

In Maryland the principle is stated with particularity in Md. Rule 724. Subsection (a) of the rule provides that:

"The defendant shall be present at every stage of the trial, including the impaneling of the jury and the return of the verdict, and at the imposition of sentence, except as provided by these rules.”

Subsection (c) of Rule 724 addresses situations in which the accused is deemed to have waived his right to be present. Paragraph one of that subsection states that a defendant waives his right when:

"He voluntarily absents himself after the trial has commenced, whether or not he has been informed by the court of his right to remain during the trial.” (Emphasis added.)

Thus, while the right to be present under Rule 724 (a) attaches during any "stage of the trial, including the impaneling of the jury”, the ability to waive that right pursuant to subsection (c) (1) does not accrue until "after the trial has commenced.” The rule does not specify any point in a criminal proceeding at which the trial will be deemed to have "commenced.”

Appellant posits that because the jury was not sworn when he absented himself, the trial had not yet "commenced” for purposes of waiver of his right to be present under Rule 724 (c) (1), and that, therefore, the trial court erred by concluding that he had waived his right to be present and by proceeding in his absence. We disagree.

While the swearing of a jury is the point at which jeopardy attaches, Blondes v. State, 273 Md. 435, 330 A.2d 169 (1975), it does not necessarily follow that this is the point at which trial commences for purposes of waiver under Md. Rule 724 (c) (1). Indeed, when subsection (c) of the rule is read in light of subsection (a) which specifies when presence is required, it appears that the rule presupposes commencement of the trial at an earlier point in the proceedings than when the jury is sworn. The language of subsection (a) implies that the impaneling of the jury, which of course takes place before the jury is sworn, is a "stage of the trial,” at which the accused has a right to be present. See also Hughes v. State, 288 Md. 216, 421 A.2d 69 (1980). The rule’s inclusion of the jury impaneling process as a "stage of the trial,” clearly indicates that the trial itself is deemed for purposes of Rule 724 to have commenced at or before the beginning of that process. Therefore, the voluntary absence of the accused during the process constitutes absence "after the trial has commenced” for purposes of Md. Rule 724, and constitutes a waiver under paragraph one of subsection (c) of that rule.

This interpretation of Md. Rule 724 is fortified by case law interpreting Rule 43 of the Federal Rules of Criminal Procedure, the federal counterpart to the Maryland Rule. Haley v. State, 40 Md. App. 349, 392 A.2d 551, cert. denied, 284 Md. 744 (1978). In the case of United States v. Miller, 463 F.2d 600 (1st Cir.), cert. denied, sub nom, Gregory v. United States, 409 U.S. 956 (1972), a case in which the Court addressed the issue of waiver of the right to be present where the defendant had absented himself after voir dire but before the jury was sworn, the court stated that:

. the trial commences 'at least’ from the time that the work of impaneling jurors begins.. . . The concept that a defendant could go through trial proceedings to the point of selecting the entire jury and then, perhaps because he was dissatisfied with the complement thereof, freely depart, does not appeal to us. To draw a bright line at the formality of swearing the jury would frustrate the purpose of Rule 43.” Id. at 603 (Citations omitted.)

In the case at bar, the appellant’s absence occurred after the trial had commenced, for purposes of Md. Rule 724 (c) (1). The trial court, after making reasonable efforts to ascertain his whereabouts, determined that appellant’s absence was voluntary, and decided to proceed in his absence. We believe that the trial court acted in accordance with its authority under Md. Rule 724.

n

Appellant’s next contention is that he was denied effective assistance of counsel and due process of law by virtue of a conflict of interest on the part of his trial counsel which arose from counsel’s attempt to represent appellant and codefendant Moore jointly at trial.

The Court of Appeals and this Court ordinarily have declined to address the issue of ineffective assistance of counsel on direct appeal unless the issue is propitiously raised and decided below. Wilson v. State, 261 Md. 551, 571-2, 276 A.2d 214, 224 (1971); Boswell v. State, 5 Md. App. 571, 583, 249 A.2d 490, 499 (1968), cert. denied, 253 Md. 733 (1969). Otherwise trial counsel, whose professional ability and integrity may be impugned thereby, would be afforded no opportunity to be heard. Harris v. State, 2 Md. App. 408, 409, 234 A.2d 781, 782 (1967).

While it may be argued on the facts of the instant case that the issue of trial counsel’s conflict of interest was indeed raised and decided in the trial court in connection with the motions to strike counsel’s appearance on behalf of appellant and to continue appellant’s case, we do not believe that the issue was sufficiently ventilated at that time to permit informed decision on direct appeal.

An examination of the record reveals that in arguing these two motions, defense counsel never indicated that his "untenable position” was attributable to anything but appellant’s absence. Appellant’s trial counsel first raised the question of his ability to represent both defendants effectively when he discovered appellant’s failure to return to the courtroom on the first day of trial. Moreover, he consented to the State’s motion to consolidate the two cases several weeks prior to trial. These facts strongly suggest that it was the potentially detrimental impact of appellant’s absence on the trial strategy of his attorney which sparked the motion to strike counsel’s appearance and the motion for a continuance.

In our view, the conflict of interest, if any, would derive not so much from appellant’s absence from trial and the difficulties in representation that might have arisen therefrom, as from the imminent potential for reciprocal recrimination or antagonistic defenses which arguably existed in recognizable form long before the case ever came to trial. However, because the conflict of interest issue was not examined in this light below, we do not believe that it would be appropriate to address it on direct appeal.

The record before us has not been sufficiently developed with respect to such issues as whether trial counsel perceived a potential conflict of interest when he consented to consolidation of appellant’s case with Moore’s; whether appellant was adequately informed regarding any potential conflict, and, if so, whether he voluntarily agreed to joint representation; whether trial counsel’s strategy and ability to cross-examine were actually impaired; and, if so, whether they were impaired merely because of appellant’s absence or because of the existence of a formerly unrecognized conflict of interest. Until such matters are explored more thoroughly we are unable to conduct a full and fair assessment of the issue. We therefore conclude that appellant’s contention regarding ineffective assistance of counsel is not properly before us at this time.

in

Appellant’s next contention is that the trial court erred in permitting the consolidation of his case with Moore’s. While this issue seems integrally related to appellant’s contention regarding conflict of interest, separate and independent grounds exist for not addressing it at this time. Appellant’s trial counsel consented to consolidation below, and filed no timely motion to sever the trials pursuant to Md. Rule 736 (a). The issue is therefore deemed to be waived for purposes of this direct appeal.

IV

Appellant’s next contention is that the evidence presented was not sufficient to support his convictions. He contests his conviction for assault with intent to murder Steven Losten (count 7) on grounds that Losten’s injuries, evidenced by cuts and bruises on his face, and by welts on his back in the shape of the twisted cane that was in appellant’s possession, were not sufficient to create an inference of specific intent to murder. This contention is without merit. Proof of specific intent to murder is not necessary to sustain a conviction for assault with intent to murder under Md. Ann. Code Art. 27 § 12 (1957, 1982 Repl. Vol.). All that need be shown is a specific intention to commit grievous bodily harm, James v. State, 31 Md. App. 666, 674, 358 A.2d 595, 600, cert. denied, 278 Md. 725 (1976), and the evidence presented was sufficient to support such a finding.

Appellant challenges his conviction for use of a handgun in the commission of a crime of violence (count 3) and for wearing, carrying or transporting a handgun (count 4), alleging that the evidence did not establish that he used or possessed the automatic pistol. We believe the evidence was sufficient for the jury to conclude that appellant’s codefendant, Moore, used the pistol to fire upon the occupants of the van during the confrontation at the liquor store. The evidence also was sufficient to permit a finding that appellant played an important role in the events leading up to that assault, and that appellant aided Moore in setting up an ambush of the pursuing van subsequent to the liquor store confrontation. Thus, there was sufficient evidence for the jury to conclude that appellant was an accomplice to the assaults with intent to murder perpetrated on the van occupants by Moore. As such, he is criminally liable for Moore’s use of the handgun just as if he had used it himself. Broadway v. State, 23 Md. App. 68, 326 A.2d 212 (1974), cert. denied, 273 Md. 719 (1975).

With reference to appellant’s contention regarding the charge of wearing, carrying or transporting a handgun (count 4), we note that the jury returned no verdict on this count in accordance with trial court instructions to bypass consideration of it in the event of a guilty verdict on the count charging use of a handgun in the commission of a crime of violence. Thus, there is no conviction on count 4 for us to consider.

Appellant also contests his convictions for assault with intent to murder two of the occupants of the van, claiming that there was insufficient evidence that appellant ever used or possessed the handgun which was the instrumentality employed in the assaults. As discussed above, the evidence was sufficient to permit the jury to conclude that defendant Moore actually perpetrated the assaults and that appellant was Moore’s accomplice. Convictions on these counts are, therefore, not improper.

v

Appellant also asserts that he was denied his right to a speedy trial. He was tried within seven months of his arrest, 161 days after his indictment and 133 days after the appearance of his trial counsel was entered in the case. There appears to have been no delay which could be considered either undue or attributable to the prosecutor or the court. Appellant never asserted his right to a speedy trial prior to this appeal. He was free on bond pending trial, and his contentions regarding loss of employment, hardship and anxiety as a result of the alleged delay were nevef made a part of the record below. We are thus unable to conclude that his speedy trial right has been violated. Barker v. Wingo, 407 U.S. 514 (1972).

Because we believe that more appropriate channels are available to appellant for resolution of the issue he raises concerning ineffective assistance of counsel, and because we are unpersuaded by the other contentions he advances, we shall affirm his convictions by the trial court.

Judgments afGrmed; appellant to pay the costs.

      . One indication of a possible conflict of interest in joint representation of Reed and Moore existed as early as five months before trial. At that time the State propounded answers to a motion for discovery and inspection filed on behalf of Reed. Included among the list of possible State’s witnesses was the name of Reed’s codefendant, Moore, indicating that at least under the State’s theory of the case, Moore possessed information that if revealed at trial, could inculpate Reed with respect to the crimes charged. While this fact alone probably would not warrant prohibition of co-representation in the case, it should have prompted further inquiry into the possible existence of antagonistic defenses.

      . We note in passing that in view of the principles set forth and discussed in cases such as State v. Hunt, 26 Md. App. 417, 338 A.2d 95, cert. denied, 276 Md. 745, 751 (1975), and Brown v. State, 10 Md. App. 215, 269 A.2d 96 (1970), there appears to be some merit in appellant’s contention regarding the existence of a prejudicial conflict of interest. Those cases reveal that, although mere joint representation of two or more defendants does not in and of itself create a conflict of interest which deprives one of effective assistance of counsel, the existence of an actual conflict of interest or the imminent potential for a conflict of interest stemming from joint representation, which results in even the slightest prejudice to the accused and renders his attorney not as effective as he otherwise might be, does constitute an infringement of the accused’s right to effective assistance of counsel. Hunt, supra at 421-23, 338 A.2d at 98-9; Brown, supra at 219-30, 269 A.2d at 100-04.
      In the case at bar, we note the presence of several of the signposts which the Hunt and Brown cases suggest indicate a need for further inquiry to determine if an actual or imminently potential conflict of interest existed. First, appellant’s trial counsel admitted, in the course of his motions following the discovery of appellant’s absence, that his trial strategy, along with his ability to effectively cross-examine witnesses, might be impaired by the "untenable” position in which he found himself. Second, appellant’s codefendant took the stand in his own defense and in the course of trying to mitigate his own role in the day’s events, directly implicated appellant in the crime charged.


source: Caselaw Access Project

author: Moore, J.,

license: Public Domain

text:
    MARYLAND COMMISSION ON HUMAN RELATIONS v. BALTIMORE COUNTY SAVINGS & LOAN ASSOCIATION, INC.
    |No. 1327,
    September Term, 1981.]

      Decided September 3, 1982.

    The cause was argued before Gilbert, C. J., and Moore, J., and William W. Wenner, Associate Judge of the Sixth Judicial Circuit, specially assigned.

      Philip L. Marcus, Associate General Counsel, with whom was Risselle Rosenthal Fleisher, General Counsel, on the brief, for appellant.

      Robert J. Ryan, with whom were Moore, Hennegan, Carney & Ryan on the brief, for appellee.
   Moore, J.,

delivered the opinion of the Court.

■ In 1976 the Maryland Commission on Human Relations (the Commission), appellant, addressed a complaint to the Baltimore County Savings & Loan Association (the Association), appellee, concerning alleged unlawful employment discrimination practices. In 1981 the Commission filed a Statement of Charges against the Association. Charging that the complaint failed to meet certain statutory requirements, the Association moved to dismiss. The Commission’s hearing examiner denied the motion, and a public hearing was scheduled.

An action for declaratory and injunctive relief was then filed by the Association in the Circuit Court for Baltimore County. The Commission filed a demurrer which was subsequently overruled. This appeal arises from that order of the circuit court (Haile, J.). For the reasons stated we shall reverse.

I

A letter of complaint dated August 5, 1976, signed by four commissioners of the Maryland Commission on Human Relations, was sent to the Baltimore County Savings & Loan Association, stating that the Commission had evidence that the Association was engaged in unlawful employment discrimination practices against blacks and women. The Commission was acting pursuant to its authority under Article 49B, § 12 (b) (now § 9 (b)) of the Annotated Code of Maryland. Thereafter, the Commission’s staff attempted to resolve the complaint by "conference, conciliation, and persuasion.” See Md. Ann. Code art. 49B, § 10 (b) (1957, 1979 Repl. Vol.). No agreement was reached, however, between the Commission and the Association and a "Statement of Charges” was filed against the Association in April 1981.

The Association moved to dismiss the proceedings on the ground that the complaint was invalid because it was not under oath, and generally failed to meet the requirements of § 9 (b). The Commission then filed, as an "Amendment to Commission Complaint,” sworn statements of each of the commissioners who had signed the August 1976 complaint. The examiner found that the complaint fulfilled the statutory prerequisites and, consequently, a public hearing was scheduled.

On September 2, 1981, the Association filed a suit for declaratory and injunctive relief requesting that the complaint be declared invalid and the Commission enjoined from holding a public hearing. A demurrer was filed by the Commission alleging, inter alia, that the court was precluded from exercising jurisdiction because of the doctrine of exhaustion of administrative remedies. The circuit court overruled the demurrer and enjoined the Commission from conducting a public hearing.

On appeal, the principal question is whether the Association was required to exhaust the appropriate administrative procedures before seeking judicial review. The secondary issue is whether the overruling of the Commission’s demurrer is an appealable interlocutory order.

II

In Prince George’s County v. Blumberg, 288 Md. 275, 283, 418 A.2d 1155, 1160 (1980), the Court of Appeals observed that in the past four or five decades few legal tenets have received greater acceptance in Maryland than the doctrine of exhaustion of administrative remedies. That doctrine is stated as follows:

"[A] claimant ordinarily must seek to redress the wrong of which he complains by using the statutory procedure the legislature has established for that kind of case, if it is adequate and available, and if he is unsuccessful and wishes aid from the courts, he must take judicial appeals in a manner the legislature has specified rather than by seeking to invoke the ordinary general jurisdiction of the courts... . [Consequently, we] have held that where a special form of remedy is provided, the litigant must adopt that form and must not bypass the administrative body or official, by pursuing other remedies.”Id. at 283-84, 418 A.2d at 1160. (Emphasis added.) (Citations omitted.)

The Association argues that the doctrine is inapplicable in this case because there is no "special form of remedy.” A contrary conclusion was reached by the Court of Appeals on similar facts in Soley v. Commission on Human Relations, 277 Md. 521, 356 A.2d 254 (1976). We feel that Soley is dispositive.

In Soley, the Commission filed an amended complaint against certain apartment owners charging them with racially discriminatory housing practices. When the owners refused to comply with the Commission’s subpoenas duces tecum, the Commission sought a court order to enforce them. The apartment owners, claiming that the complaint was invalid, filed a separate action for declaratory and injunctive relief to restrain the Commission from enforcing the subpoenas. The chancellor, however, sustained the Commission’s demurrers. Affirming the chancellor’s decision, the Court of Appeals held that § 15 (now § 12) of Article 49B and § 255 (a) of Article 41, part of the Administrative Procedure Act, combined to provide a "special form of remedy” within the meaning of § 3-409 (b) of the Courts and Judicial Proceedings article. Id. at 525, 356 A.2d at 257.

In an opinion by Judge Levine, the Court rejected appellant’s contention that there need be no exhaustion of administrative remedies where the act of the administrative agency is alleged to be ultra vires or illegal, and concluded:

"Accordingly, we hold that the chancellor was correct in his conclusion that where a statute provides a special form of remedy for a specific type of case, that statutory remedy shall be followed in lieu of a proceeding under the declaratory judgment act.” Id. at 528, 356 A.2d at 258.

That special form of remedy is present in § 12. The Association’s argument that Soley is distinguishable is unpersuasive. It states that the proceedings in Soley were confined to the confidential investigative stages, whereas in this case a public hearing has been scheduled. This factual distinction, however, does not extinguish the remedy contemplated in § 12.

The Association also hypothesizes that it will be deprived of a special form of remedy if the Commission, after making findings of fact detrimental to its interest, does not seek to enforce a final order either because the underlying complaint was invalid, or for any other reason. First, the Association incorrectly assumes the complaint’s invalidity. See discussion infra. Secondly, the decision whether to seek a court order, regardless of the reason, lies within the discretion of the Commission. In essence, appellant’s lament concerns the nature of the statutory administrative process, and is beyond redress in this Court.

The Association alternatively contends that two of the five exceptions- to the administrative exhaustion rule enumerated in Blumberg, 288 Md. 275, 284-85, 418 A.2d 1155, 1161 (1980), are applicable. These two exceptions are:

"3. When an agency requires a party to follow, in a manner and to a degree that is significant, an unauthorized procedure. Stark v. Board of Registration, 179 Md. 276, 284-85, 19 A.2d 716, 720 (1941).”
"5. When the object of, as well as the issues presented by, a judicial proceeding only tangentially or incidentally concern matters which the administrative agency was legislatively created to solve, and do not, in any meaningful way, call for or involve applications of its expertise. Md.-Nat’l Cap. P. & P. v. Wash. Nat’l Arena, 282 Md. 588, 594-604, 386 A.2d 1216, 1222-27 (1978).”

Under the third Blumberg exception, the Association asserts that the Commission is forcing it to undergo public hearing without a validly issued, i.e., (sworn) complaint and this constitutes an "unauthorized procedure.” In claiming that the procedure is unauthorized, the Association has placed a disingenuous degree of reliance on Equitable Trust Co. v. Commission on Human Relations, 287 Md. 80, 411 A.2d 86 (1980). The Court of Appeals there ordered that the Commission’s petition for a subpoena duces tecum be dismissed, on remand, because the underlying complaint was not under oath as required by Article 49B, § 9.

The rationale of the decision was that the legislature intended to assure that those against whom the Commission brought complaints would not be subjected to charges lightly made or issued upon the "whim, fantasy or prejudice of certain of the commissioners.” Id. at 88, 411 A.2d at 91. The Court of Appeals in Equitable Trust did not invalidate all unsworn complaints, but simply held that where a complaint is not issued under oath a subpoena duces tecum could not be enforced. Nothing in the decision suggests that such a defect could not be cured by amendment.

Article 49B, § 11 (c) expressly permits "reasonable amendment to be made to any complaint or answer.” Furthermore, regulations adopted by the Commission specifically state that, "a complaint may be amended to cure technical defects or omissions, including failure to swear to the complaint, . .. All of these amendments will relate back to the the original filing date.” COMAR 14.03.01.02D(3) (emphasis added). Sworn statements of the four signing commissioners, in this case, were added to the original complaint as an amendment. Thus, the protection afforded by the oath requirement, contemplated in Equitable Trust, was present here; therefore, there was no unauthorized procedure.

The second exception upon which appellee relies, the so-called fifth Blumberg exception, appears to have been raised for the first time on appeal and is supported only by the argument in appellee’s brief that the determination of the complaint’s validity is a question of law which does not involve the administrative agency’s expertise.

Preliminarily, we believe it appropriate to point out that this "exception” was found in Blumberg to derive from Maryland-National Capital Park & Planning Commission v. Washington National Arena, 282 Md. 588, 594-604, 386 A.2d 1216, 1222-27 (1978); and that a careful reading of Judge Levine’s opinion makes it clear that the decision was governed by the doctrine of "primary jurisdiction.” This was defined as a "judicially created rule designed to coordinate the allocation of functions between courts and administrative bodies.” Id. at 601, 386 A.2d at 1225-26, and applicable only where there is concurrent jurisdiction between court and administrative agency. Indeed, the court was careful to emphasize that primary jurisdiction "is distinguishable from the doctrine requiring the exhaustion of administrative remedies. ” (Emphasis added.) Id. at 602, 386 A.2d at 1226, (noting Soley v. Commission on Human Relations, 277 Md. 521, 526-27, 356 A.2d 254 (1976), for an explanation of the policies underlying the exhaustion rule). Therefore, as previously suggested, whether the fifth Blumberg "exception” is, indeed, an exception is open to question.

At all events, the determination of the validity of the complaint under § 9 (b) was a matter within the administrative expertise of the Commission. The issue was not one that only tangentially concerned matters the Commission was created to solve, but rather arose directly under the statute authorizing the Commission to issue complaints. The Association’s argument, carried to its logical conclusion, suggests that any "legal” challenge to an administrative agency’s action under a statute automatically invokes an exception to the exhaustion doctrine. Such a view is untenable.

Ill

The Association argues that the lower court’s overruling of the Commission’s demurrer is not an appealable interlocutory order. An order overruling a demurrer is not appealable except when it falls within one of the provisions of Md. Cts. & Jud. Proc. Code Ann. § 12-303 (1980), permitting direct appeals from certain interlocutory orders. Section 12-303 (c) of that article provides that an appeal may be taken from "[a]n order: granting or dissolving an injunction, but if the appeal is from an order granting an injunction, only if the appellant has first filed his answer in the cause.” Id. Although no answer was filed in this case, the Commission did file a demurrer to the Association’s suit for declaratory and injunctive relief. A demurrer to a bill or petition for an injunction is regarded as an answer within the meaning of this section. See, e.g., Stockham v. Knollenberg, 133 Md. 337, 105 A. 305 (1918).

Order reversed; case remanded to Circuit Court for Baltimore County for entry of an order vacating injunction and for remand to Maryland Commission on Human Relations for hearing.

Costs to be paid by appellee.

      . Md. Ann. Code art. 49B, § 12 (1957, 1979 Repl. Vol.) (formerly 8 15) provides as follows:
      8 12. Enforcement of Commission’s orders; complaint maliciously made; right to bring civil action not denied.
      (a) If any respondent refuses to comply with an order of the Commission made within the scope of any of these subtitles, the Commission may, represented by its general counsel, institute litigation in the appropriate equity court of the county or in Baltimore City where the alleged discrimination took place to enforce compliance with any of the provisions of this article.
      The court, in hearing said case shall be governed by the judicial review standards as set forth in the Administrative Procedures Act, 88 255-256 of Article 41 of the Annotated Code of Maryland.

      . The apartment owners argued that the underlying complaint was invalid because it did not comply with the requisites of Art. 49B, § 12 (b), now § 9 (b), with regard to particularity and failed to allege the "reliable information” which the Commission must receive before it can issue a complaint in its own name.

      . "Any party aggrieved by a final decision in a contested case, whether such decision is affirmative or negative in form, is entitled to judicial review thereof under this subtitle.” Md. Code Ann. art. 41, § 255(a) (1957, 1979 Repl. Vol.).

      . "If a statute provides a special form of remedy for a specific type of case, that statutory remedy shall be followed in lieu of a proceeding under this subtitle [declaratory judgment].” Md. Cts. & Jud. Proc. Code Ann. § 3-409 (1980).

      . Soley was a companion case to Banach v. Commission on Human Relations, 277 Md. 502, 356 A.2d 242 (1976), in which the opinion was also authored by Judge Levine.

      . See Md. Ann. Code, art. 49B, § 13 (1957, 1979 Repl. Vol.).

      . See note 1, supra.

      . Under § 11 (e) the Commission’s hearing examiner is required to state findings of fact if, during the hearing, evidence is presented that a party has engaged in a discriminatory act within Art. 49B. Pursuant to those findings of fact the examiner must issue a cease and desist order. Md. Code Ann. art. 49B, § 11 (e) (1957, 1979 Repl. Vol.). T.hat order is subject to judicial enforcement. Id. at § 12.

      . "If any respondent refuses to comply with an order of the Commission ..., the Commission may... institute litigation ... to enforce compliance With any of the provisions of this article.” Md. Code Ann. art. 49B, § 12 (1957, 1979 Repl. Vol.) (Emphasis added.)

      . Even if a procedure is unauthorized, there is substantial doubt that the third exception listed in Prince George’s County v. Blumberg, supra, remains viable. . The Court of Appeals in Soley v. Commission on Human Relations, supra, stated the "dictum [in Stark] has been deprived of any vitality it may have'possessed hy the subsequent adoption of the Administrative Procedure Act, which encompasses such complaints within the scope of judicial review.” 277 Md. 521, 528, 356 A.2d 254, 258 (1976). In addition, the court noted that, "[a]mong the grounds on which the decision of an administrative agency may be attacked on judicial review are "excess of... statutory authority or jurisdiction of the agency; ... unlawful procedure; [or] other error of law....” Id. at n.3 (citing Md. Ann. Code art. 41, § 255 (g) (1957, 1971 Repl. Vol.)). Our research has revealed no cases in which the Stark exception, as cited in Blumberg, has been successfully applied. However, some vitality may inhere in the Stark exception with reference to appeals from decisions by county agencies to which the Administrative Procedure Act is not applicable. Md. Ann. Code art. 41, § 244 (1957, 1979 Repl. Vol.); Urbana Civic Association v. Urbana Mobile Village, Inc., 260 Md. 458, 272 A.2d 628 (1971).

      . There is also some doubt whether the fifth Blumberg exception is indeed an exception to the doctrine of exhaustion of administrative remedies. Authority for the exception was derived from Md.-Nat’l Cap. P. & P. v. Wash. Nat’l Arena, 282 Md. 588, 594-604, 386 A.2d 1216, 1222-27 (1978). As discussed infra, that case concerned the doctrine of "primary jurisdiction” as distinguished from the administrative exhaustion doctrine. It is, therefore, likely that the Association’s reliance on this "exception” is misplaced.

      . Md. Ann. Code art. 49B, § 12 (1957, 1979 Repl. Vol.), specifically requires complaints brought by individuals to be under oath. The Court rejected the argument that this requirement was not applicable to the Commission itself. Equitable Trust Co. v. Commission on Human Relations, 287 Md. 80, 88-89, 411 A.2d 86, 91 (1980).

      . The court in Eauitable Trust was able to reach the issue of the complaint’s defect because administrative exhaustion was not involved. In contrast to Soley, no separate action for declaratory and injunctive relief was filed by the bank in Equitable Trust. The bank simply appealed the trial court’s order to enforce the subpoena duces tecum sought by the Commission. Equitable Trust Co. v. Commission on Human Relations, 287 Md. 80, 411 A.2d 86 (1980).

      . In Equal Employment Opportunity Commission v. United States Fidelity & Guaranty Co., 420 F.Supp. 244, 248 (Md. 1976), the federal district court recognized relation back of an amendment to verify a previously filed complaint under the EEOC’s regulations. These regulations are similar to those adopted by the Maryland Commission on Human Relations.

      . See note 11, supra.

      . In that case, the lessee agreed to relinquish in advance his statutory right to challenge assessment of taxes upon real estate improvements. The Court of Appeals held that enforceability of a waiver provision of a lease was not a problem arising under the taxing statutes within the administrative expertise of the Maryland Tax Court or Property Tax Appeal Board. The issue was "purely and simply” a matter of contract construction, not involving questions of valuation or interpretation of revenue laws. 282 Md. 588, 598, 386 A.2d 1216, 1224.

      . Note 11, supra.


text:
    THOMAS E. ROSSER, Trustee v. ROBERT C. PREM, Special Administrator of the Estate of Eleanor B. Wasserman
    [No. 1364,
    September Term, 1981.]

      Decided September 3, 1982.

      The cause was argued before Moore, Weant and Bishop, JJ.

      Eugene A. Alexander, III, for appellant.

      Robert C. Prem, with whom was Leonard A. Orman on the brief, for appellee.

      Note: Certiorari denied, Sub Nom. Cohen v. Rosser, Court of Appeals of Maryland .November 22 1982,

   Moore, J.,

delivered the opinion of the Court.

"Put not your trust in money but put your money in trust.”

Oliver Wendell Holmes,

"The Autocrat of the Breakfast Table” (1858)

The first question in this appeal is whether the trust that Eleanor B. Wasserman sought to create in her will is a valid charitable trust. Because our answer is affirmative, we need not consider the second question — whether the doctrine of cypres, Md. Est. & Trusts Code Ann. § 14-302 (1974), would apply. Our decision requires reversal of the decree of the Circuit Court for Baltimore County (Brizendine, J.) and means that two thirds of Mrs. Wasserman’s estate will be used to publish and disseminate her book entitled, "Linda,” which concerns her only daughter who died of cancer at the age of eight in 1950.

I

Mrs. Wasserman died in December 1978, five years after her husband, Earl B. Wasserman, who had left her all of his estate. Her will, whose validity is not at issue, was dated October 11, 1971, 21 years after her daughter’s death. Prepared by attorney Thomas J. Grogan, Jr., it bequeathed one third of her estate to her husband, specific items to relatives, and the rest, residue and remainder to three named trustees who were directed to:

''[A]pply the net income therefrom and whatever portion of the corpus of this trust estate which may be required to preserve and protect the manuscript and illustrations and copyrights of my book entitled Linda’, and in their discretion insofar as said Trustees find this procedure practicable to have said book widely published in expanded and revised form, if this should be helpful, in as many editions as may be deemed necessary and to have the material used in whatever form and by whatever method it appears to them to be most feasible.
"It is my wish and desire that the entire corpus of this trust estate, together with any accumulated income therefrom bq used by my said Trustees to carry out the above trust with respect to my said book entitled 'Linda’ and the second edition thereof, which I am about to publish.
"If I shall die before I publish the second edition, I authorize my Executors to employ some Christian Writers to complete the work.” (Emphasis added.)

Following his appointment as personal representative, Mr. Grogan, now deceased, sought a declaratory judgment, pursuant to Md. Cts. & Jud. Proc. Code Ann. §§ 3-406 and 3-408 (1980 Repl. Vol.) and Md. Est. & Trusts Code Ann. § 14-301 (a) (1974), requesting the court to instruct him as to whether the will created a valid trust. Thomas E. Rosser, trustee and appellant here, filed an answer, averring that the trust was valid. At a hearing before a master on August 11,1980, "Linda,” a bound, copyrighted, and illustrated volume of 102 pages, was admitted into evidence, along with letters from two experts, Carol Abromaitis, an associate professor of English at Loyola College, Baltimore, and Eleanor Merryman Roszel, an author’s representative. The former testified that the book "Linda” was "without aesthetic merit,” being structurally flawed by "a mishandling of point of view” and stylistically flawed by "grammatical errors.” Ms. Roszel passed on the book’s "publishability,” concluding that "Linda” had "no ready-made audience and therefore no marketability.” Mr. Grogan, the author of the will, testified that had he seen a copy of the book before drawing up the will, he would have tried to discourage Mrs. Wasserman. His assessment of "Linda” was: "ungodly bad.”

The master concluded that Mrs. Wasserman’s will did not create a valid trust, stating in his memorandum opinion: "The book 'Linda’ sets forth no doctrine. It advocates nothing. It promotes no matter of special interest to the community. It certainly is not a literary gem.”

Appellant excepted, but before the circuit court hearing, Mr. Grogan died. He was replaced by Robert C. Prem, appellee here. On October 8, 1981, the circuit court determined that the trust was invalid on two grounds: first, as a private trust, it lacked ascertainable beneficiaries; second, as a charitable trust, it lacked the necessary elements. As a result, the net residuary estate was ordered distributed to the heirs at law. This appeal followed.

II

Charitable trusts in Maryland have attracted little appellate attention in recent years although the legacy of cases prior to the adoption of § 14-301 et seq. in 1974 is ample. In 1888, the legislature enacted a statute that no bequest for charitable uses would be void for uncertainty of beneficiaries, provided a corporation existed to take the same. See Md. Ann. Code Art. 93, § 357 (1957). The statute was amended in 1908 to remove the bar of perpetuities from charitable trusts, but not until 1931 were the principles of the statute of 43 Elizabeth Ch. 4 (1601) formally adopted in this State. Code, supra, Art. 16, § 268A (1935 Supp.). See Howard, C., "Charitable Trusts in Maryland,” 1 Md.L.Rev. 105 (1937).

As the Court of Appeals noted in Second National Bank v. Second National Bank, 171 Md. 547, 556-7, 190 A. 215, 219 (1937), this statute, which is the predecessor of § 14-301, did not mark the beginning of charitable trusts in Maryland, for courts of equity had exercised jurisdiction over charitable trusts from antiquity. Many, of course, had failed for uncertainty or perpetuities, see cases collected in Howard, supra, n.36 at 117. These trusts would be valid and enforceable under Art. 16, § 268A. The court pointed out that courts in states with the statute have upheld as charities many objects of benevolence which the statute neither mentions nor implies. Similarly in this State, a trust to establish a home for "unfortunate girls” was held to be charitable, Second National, supra, and more recently, Register of Wills v. Cook, 241 Md. 264, 216 A.2d 542 (1966), held that a trust to help further the passage of the Equal Rights Amendment and assist women suffering from the effects of sexual discrimination in the laws of Maryland and the United States was essentially charitable in nature, "[wjhatever may be the views of individuals, laymen or judges. . ..” Id. at 278. Because we have found no Maryland case concerning a charitable trust to publish a book, we begin our analysis on common ground with the appellant and appellee concerning the definition:

"A charitable trust is a fiduciary relationship with respect to property arising as a result of a manifestation of an intention to create it, and subjecting the person by whom the property is held to equitable duties to deal with the property for a charitable purpose.”

Restatement (Second) of Trusts § 348 at 210 (1959). Both sides also agree that § 368 of the Restatement sets forth the permitted charitable purposes:

(a) the relief of poverty;
(b) the advancement of education;
(c) the advancement of religion;
(d) the promotion of health;
(e) governmental or municipal purposes;
(f) other purposes the accomplishment of which is beneficial to the community.

Restatement, supra, § 368 at 246. These purposes, derived from the Statute of Elizabeth, supra, were broadened in § 14-301 (b) to include "purposes within either the spirit or letter” of the venerable statute. It is likewise undisputed that a charitable trust can be created without a definite or definitely ascertainable beneficiary designated, Restatement, supra, § 364 at 243, and is not invalid although continuing for an indefinite or unlimited period, id., § 365 at 244; § 14-301 (c).

Appellant argues that the trust created by Mrs. Wasserman qualifies as a charitable trust on two grounds: first, it would advance education through "the dissemination of knowledge or of beliefs by the publication of books and pamphlets . . .,” Restatement, supra, comment a to § 370 at 251; second, it would advance religion by disseminating "religious beliefs or doctrines; . ..” id., comment a to § 371 at 254.

Appellee states that "publication of the book 'Linda’ falls short of a charitable purpose” because it is of little or no value to the community in advancing either education or religion. The test, according to appellee, is stated by Professor Bogert: "[I]f the court comes to the conclusion that it would be irrational to regard the trust as bringing about any public benefits, but rather that the trust would be useless to society, the court will hold the trust noncharitable... Bogert, Trusts and Trustees § 368 at 58 (2d ed. rev. 1977). Appellee relies on the Restatement’s no-nonsense comment m to § 374 that "a trust to publish and distribute the writings of the testator is not enforceable if his writings are of no value.” Restatement, supra, at 262.

Professor Scott echoes this flat prohibition: "A trust to publish worthless writings is not valid, either as a charitable trust or as a private trust.” II Scott on Trusts § 124 at 963-4 (3d. ed. 1967), citing, Fidelity Title & Trust Co. v. Clyde, 121 A.2d 625 (Conn. 1956). Professor Bogert, whom appellee quotes extensively, is somewhat scathing in his view of "educational trusts [that] seek to propagate eccentric ideas,” producing no substantial advantages to society, Bogert, supra, § 375 at 134, and whimsical or irrational trusts, made out of mere sentiment, that have no practical effect except to satisfy the whim of the testator and waste the assets of the estate. Id., § 379 at 204.

Appellee’s position seeks to put this Court in the unaccustomed role of literary critic, but before we review the lower court’s decision that the book "Linda” "wasn’t much good” and therefore failed as a charitable trust, we will consider whether the other required elements of a charitable trust, as set forth in the comments to § 348 of the Restatement at 210-11, are present. These elements are:

a. fiduciary relationship

b. duties of trustees

c. trust property

d. manifestation of intention

e. charitable purpose

The first three elements give us little pause. The fiduciary relationship in a charitable trust is between the trustee and unknown beneficiaries who will come forward upon operation of the trust. The trustee of a charitable trust is subject to equitable duties as defined in §§ 169-185 of the Restatement. In this case, these duties might include hiring an editor, publisher, and distributor for Mrs. Wasserman’s book. The trust property — two thirds of the estate — is obviously a proper subject of the trust, as is the object of the trust — the book.

The fourth element requires some analysis. Mrs. Wasserman’s intention to create a trust is evident in the will. See Waesche v. Rizzuto, 224 Md. 573, 583, 168 A.2d 871, 875 (1961). Whether she meant to create a charitable trust is not immediately apparent from the language of the will itself, which mentions neither the word "charity” nor any of its synonyms or variations. However, that omission is not dispositive. See Second National Bank, supra, 171 Md. 550-1, 190 A. at 216-7; cf. Woman’s Foreign Missionary Society v. Mitchell, 93 Md. 199, 48 A. 737 (1901) (bequest to educate six girls in India as Bible readers held valid gift with a condition, despite words "in trust” used in will). Section 358 of the Restatement tells us that the intention to create a charitable trust may be ascertained:

(a) from the will itself; or

(b) from an existing instrument properly incorporated in the will by reference; or

(c) from facts which have significance apart from their effect upon the disposition of the property devised or bequeathed by the will.

Restatement, supra, § 358 at 223-4.

The published book "Linda,” the object of the trust, contains an introduction, see n.l, supra, that manifests Mrs. Wasserman’s intention "to help others believe as I had been shown how to believe, particularly parents.” The preface, written by James S. Cox, then Dean of St. Andrew’s Cathedral in Honolulu, Hawaii, expands upon this intent and alludes to the intended beneficiaries:

"When the author first came to me some time after the death of her daughter, I knew her to be struggling with a grief too great to bear without some effort on her part to justify the bitter pain of bereavement — to find some working answer to the enigma of human existence. Her quest led her over a curious path but through the same valley of decision and faith countless others have encountered and will encounter. It is to help the latter that she was led to write her book.”

Manifestation of Mrs. Wasserman’s intent is thus externally expressed — she wanted to publish and disseminate the book "Linda” and two others, then and still not completed, to offer solace and spiritual guidance to parents plunged into the unimaginable mental anguish produced by the loss of a young child.

Appellees do not contend that any of the first four elements are lacking: they simply assert that there is no charitable purpose because "Linda” has no literary value and its dissemination will produce no public benefit. Therefore, they contend, the trust is invalid and unenforceable. The testimony before the master amply demonstrates the book’s shortcomings, appellees point out, citing authority dealing with other writings deemed "worthless.”

Thus, in Wilber v. Asbury Park National Bank & Trust Co., 59 A.2d 570 (1948), affd sub nom, Wilber v. Owens, 65 A.2d 843 (N.J. 1949), the testator directed that $15,000 be spent to type, edit, and distribute his manuscript entitled, "Random Scientific Notes Seeking the Essentials in Place and Space.” The lower court refused to do so, finding the writings "irrational, unintelligible, and of no scientific or other value,” and their publication "a waste of money.” Id. at 578. The court did apply the cy pres doctrine, however, because the will showed general charitable intent, and the judgment was affirmed.

We distinguish the Wilber case on three grounds. First, the will had no friends — all counsel-agreed that the express purpose of the will was "impossible of performance.” Id. at 579. That is not so in this case. Second, the testator, according to the trial judge, was "eccentric, egotistical, pompous, and had an exaggerated idea of his own importance”; he was "touched with megalomania,” and "evidently obsessed with the idea that he was under an obligation and duty to do something magnificent for mankind.” Id. at 584. We have no such testator here. Third, several of the institutions named as beneficiaries refused to accept the gift on the testator’s terms that his "Notes” be published. That is not the instant case.

In affirming the trial court’s application of the cy pres doctrine, the Supreme Court of New Jersey dealt more gently with the quality of the testator’s work, and its observations are apposite:

"He sought to add 'a small bit to the sum-total of desirable human knowledge, for the use and benefit of mankind.’ This we find in the 'Introduction’ to the first volume of his Notes. True, his Notes contributed nothing to the sum of human knowledge; and their development would not add to wisdom. Indeed, they have been termed 'irrational and incoherent.’ Dr. Scoon said a part was understandable and a part not. Yet to the testator the test was real and vital and entirely reasonable in keeping with his own meager understanding of the subject.... He conceived that his reflections and conclusions would provide the basis and the impetus for philosophic research that would in the end be socially constructive and otherwise serve the common good; but the charitable intent does not depend upon the scientifíc validity of his views or the depth of his understanding. We are not concerned with his philosophic or sociologic orthodoxy or rationality. Whatever the utility of his contribution, his undoubted aim was the use of his Notes as the beginning of an understanding that would in scientific hands redound to the advantage of mankind. That was his avowed purpose.” 65 A.2d at 846. (Emphasis added.)

In support of his view that the book "Linda” is worthless, appellee refers us to a case cited by Professor Scott, IV Law of Trusts, supra, n.5 at 2872. Fidelity Title & Trust Co. v. Clyde, 121 A.2d 625 (Conn. 1956) held that a trust to publish a deceased attorney’s writings was invalid as contrary to public policy. Id. at 629. A sampling of the titles of the pamphlets proposed to be published supports the court’s reaction of repugnance to this so-called "educational trust for charitable purposes. Id. While the case is completely distinguishable, we agree with the court’s statement that

"where the purpose for which the trust was created constitutes a valid charitable use, the educational value of the books or pamphlets to be distributed is ordinarily of no concern to the court, nor is the literary merit of the material a proper subject of judicial inquiry.”

Id.

Appellee also refers us to 12 ALR2d, Annot. Charitable Trust — Validity § 2 at 861 (1950), but the cases found there tend to support the theory expressed in § 2, which is at variance with appellee’s position:

"Broadly speaking, the publication of writings is regarded as a furtherance of education and, therefore, a valid charitable object. Excluding advocacy of immorality or crime, no inquiry is made into the rightness or wrongness of the views expressed . . . [I]t is required that the writer be rational. The writings may espouse an unpopular doctrine; ... In modern times, the author may take any view he pleases respecting the forms of religion.”

The case of In re Hamilton-Grey, 38 New So.W.St. 262 (1938), discussed in the annotation at 862, is instructive. The testatrix left all her property in trust to disseminate her three published books on the life and poetry of Henry Kendall, the "Australian Wordsworth.” Expert and lay witnesses testified that her books were worthless as literary criticism and had little biographical value. Nonetheless, the court refused to hold publication and distribution of the books noncharitable. "Judicial inspection of the books was confined to a search for contravention of law and morals, and, they being cleared on this score, their object of awakening interest in the poet was educational.” Annotation, supra, at 863.

The one case supportive of appellee’s position, State exr el. Emmert v. Union Trust Co., 86 N.E.2d 450 (Ind. 1949), is disparaged by the author of the annotation as an unfortunate result that "flows upstream in the current of authority.” Annotation, supra, at 864.

The court held that a will directing the executors to publish and distribute the diaries of the testator’s grandfather, admittedly of educational value, was not a valid charitable trust because the will evidenced no charitable intent or purpose. Chief Justice Gilkison’s stinging dissent noted that: "A gift to the use of the general public is always construed to be a public charitable trust.” Emmert, supra, 86 N.E.2d at 455.

The one caveat espoused by both Scott and Bogert is that a charitable trust must provide some societal benefit. Bogert, supra, § 361 at 3; Scott, supra, § 374.7 at 2920; see Restatement, supra, comment m to § 374 at 261.

"The question is not whether the trust is in harmony with the prevailing public views as to what purposes are of advantage to society. The court sanctions the advancement of many minority causes, for example, aid to religious sects which have few followers and trusts to promote governmental changes which are not popular.
The court should not hold the trust to be noncharitable merely because it does not approve of the objectives of the settlor and does not consider that his trust will bring about social benefíts. If, notwithstanding its disapproval, the court finds that the settlor and rational men in general might reasonably believe that public advantages would accrue, it may hold the trust to be charitable, for example, in the case of a trust to promote vegetarianism.” Bogert, supra, § 368 at 56-7. (Emphasis added.) (Footnotes omitted.)

An excellent example of a "minority cause” is found in In re Estate of Kidd, 467 P.2d 770 (Ariz.App. 1970), which involved a holographic will that left the balance of the estate to fund "research or some scientific proof of a soul of the human body which leaves at death. I think in time their [sic] can be a Photograph of soul leaving the human at death.” Id. at 771. The case attracted much publicity for the seemingly impecunious gentleman had left $174,000 in stocks and bonds. The court did not hesitate to find a charitable trust. Id. at 774. See also the early case of Thornton v. Howe, 31 Beaver 14, 54 Eng. Reprint 1042 (1862), discussed in annotation, supra, at 869.

A charitable purpose may be found in "almost anything that tends to promote the well-doing and well-being of social man,” Ould v. Washington Hospital for Foundlings, 95 U.S. 303, 311 (1887). Well-being consists not only of physical health and surroundings but also of mental • happiness. While the book "Linda” received a failing grade from the English professor and a rejection notice from the publishing agent, we need not review it as might a critic for The New York Times Book Review. Mrs. Wasserman’s book details her search for mental solace and spiritual peace in a rational, if not editorially elegant, manner.

At oral argument, appellant stated that the book "Linda” was not silly or frivolous. From our reading, we cannot disagree. The appropriate test is not whether the book is marketable — the trust provides for its distribution, so it need not be sold but may be given away. Nor does the trust’s validity depend on the book’s literary style and grammatical accuracy. The trust provides for expansion and revision "as may be deemed necessary.” Mrs. Wasserman made no pretense of being a professional author.

Parents facing the mental, emotional and spiritual crises that follow the death of a child may benefit from a reading of "Linda,” or a professionally edited and revised version of it, for which the will provides. As the Rev. Mr. Cox stated in the Preface:

"Some will find their chief interest of the book in the thorough knowledge of Old Testament religion revealed by the author, and how she found its fulfillment, and hers, in the Christian Church. Others will be moved by the personal experience of the author and, perhaps, find hope in their own situation. At least they will feel that a deep experience shared by them has been put into simple and expressive words, and be glad.”

The named trustee, appellant here, stood ready to carry out his equitable duties — to have the book "widely published in expanded and revised form,” insofar as this procedure was practicable. The trust confers broad discretion upon the trustee to employ "Christian Writers” to complete the second edition and "to have the material used in whatever form and by whatever method . .. appears ... to be most feasible.” Cf. Rabinowitz v. Wollman, 174 Md. 6, 7, 197 A. 566, 567 (1938) (trustee given discretion to choose charitable Hebrew institutions to receive bequest).

Mrs. Wasserman’s intent is clear — to help bereaved parents by providing her "answer to the enigma of human existence,” through the story of her daughter and her own spiritual passage from Judaism to Christianity. This Court will not thwart her intent.

In light of the principles of law, as expressed in our statute, the decided cases, the Restatement, and the treatises,’ we find that the trust created by Mrs. Wasserman’s will is charitable and capable of being carried out by the trustee.

Judgment reversed; case remanded for the issuance of a declaratory judgment conformably with this opinion; appellee to pay the costs.

      . The introduction to "Linda” explains why the book was written. We reproduce it in full:
      HOW THE STORY CAME ABOUT AND WHY
      For many months after the death of my little girl, in November of 1950, when the miraculous vision and the church records coincided, I told the story to many people. They all wanted to listen.
      But, after awhile, like Coleridge’s Ancient Mariner, I grew exhausted. I began to leave things out.
      I still felt, however, the tremendous impulse to tell it. I was impelled to tell it, for I could not hold it within me. I wanted to help others believe as I had been shown how to believe, particularly parents.
      When I was granted, quite suddenly, a voice scholarship at the Music Academy of the West, in Santa Barbara, California, with the great artists John Charles Thomas, and Madame Lotte Lehmann, in the summer of 1951, I rode out on the Atchison, Topeka and Sante Fe and returned by the Northwest Passage on the Milwaukee Road, the train company kindly rerouting my ticket.
      In Seattle, Washington, I had a sister, Celeste, whose husband is Dr. Morton E. Bassan. He arranged that I tell the story into a dictaphone and he had his secretary type it. He tested me for extra-sensory perception, at the same time. He is interested in ESP, as many people are today. Nothing significant was found.
      Thus the twenty-two pages, the nucleus of a book, suddenly were there in my hands.
      From this, all the writing has stemmed and has grown into three separate books, the first one completed being "LINDA”.
      Eleanor B. Wasserman
      The "miraculous vision” to which Mrs. Wasserman refers is explained by James S. Cox, then Dean of St. Andrew’s Church in Honolulu, Hawaii, in the Preface to "Linda.” We quote from it:
      Some may have some difficulty in accepting the author’s interpretation of the events after her daughter’s death. I do myself, although I was to some extent involved in them. I still remember my astonishment when she produced the crayon sketch of the Church seen in her dream. It was the pre-restoration Church of which I was then Rector and which she could never have seen. Whatever the valuation placed on this incident, it was the turning point in her life, but it does not in any way affect the validity of the Christian position she reached through her Judeo-Christian background.

      . Since Mr. Wasserman predeceased his wife, the share left to him should pass to those named in his will, in this case, his wife. Md. Est. & Trusts Code Ann. § 4-403 (1974). Since she, too, is deceased, the one-third share passes by statute to those sharing in her residuary estate. The master’s disposition of this share of Mrs. Wasserman’s estate was not excepted to by either party.

      . Mrs. Wasserman left a diamond ring to her niece, Elizabeth Ann Bassan, a wrist watch to another niece, Joann Dahan, a diamond pendant to her grandniece, Odetta Jane Dahan, and her silverware to her nephews, David, Jonathan, and Morton Bassan, share and share alike, all appellees here. Dorothy Cohen, Mrs. Wasserman’s sister, is also an appellee.

      . The trustees were Cecil C. Grasty, who renounced both as trustee and executor, the Reverend George T. Aulton, who was never located, and Thomas E. Rosser, appellant here.

      . Mr. Grogan was emphatic in his dislike of "Linda.” He told the master at the August 11, 1980, hearing:
      "THE WITNESS: It was unreadable; things a little baby said. Some of them had the wish and wisdom of a grandmother, the things she’d put into the child’s mouth. It was very uninteresting. MASTER PITTS: You are referring to the original book.
      THE WITNESS: I’m referring to the initial book, yes sir.
      BY MR. ALEXANDER (plaintiffs counsel):
      Q. Are you a literary critic, Mr. Grogan?
      A. No, sir.
      Q. Why do you classify it as ungodly bad?
      A. Because an average citizen who would buy the book wouldn’t read it.
      Q. How would you know that?
      A. The girls in the office all tried to read it.
      Q. And they are the average citizen, is that it?
      A. Yes, sir.
      Q. That is the basis of your determination that it is ungodly bad, the girls in your office?
      A. No. My own trying to read it.
      Q. Your own. You and the girls in your office?
      A. Yes.
      Q. And that makes it ungodly bad?
      A. In my eye, yes.
      MR. PREM (appellee here): I wish to state at this point that the girls in the office are above average.”

      . Appellant in his brief disavows any contention that a private trust was intended by Mrs. Wasserman. Thus, the case cited by the master, Waesche v. Rizzuto, 224 Md. 573, 168 A.2d 871 (1961), is not applicable because it concerned a private trust which requires an element not necessary to ereation of a charitable trust, that is, a designated person for whose benefit the trust property is held. Id. at 583, 168 A.2d at 875.

      . The chancellor did not say what elements were missing but agreed with the findings of the master. He said from the bench:
      "And I agree that looking at the whole picture, that to find the elements necessary to make this a charitable trust would be lacking. This Court can’t find the necessary requisites to spell out a charitable trust. I don’t think the intent was that anything of this nature could be considered to be a charity. Doesn’t appear to the Court that way, ...”

      . Cases decided since the charitable trusts subtitle of Md. Est. & Trusts Code Ann. § 14-301 et seq. (1974) took effect in 1974 include: Loyola Fed. Sav. & Loan Ass’n v. Galanes, 33 Md. App. 559, 365 A.2d 580 (1976), cert. denied, 279 Md. 683 (1977), which merely cited the statute; and Carroll Park Manor Community Ass’n v. Board of County Comm’rs, 50 Md. App. 319, 437 A.2d 689 (1981), which held that the question was not whether taxpayers had standing to enforce a charitable trust but whether they could invoke the aid of an equity court to restrain public officials from ultra vires acts.
      The editor’s note to the Estates and Trusts article stated that certain cases decided under the former statute have been retained in the annotation because they have some value in interpreting the present' statutes. Although now outdated, several early cases are worth noting:

        Isaac v. Emory, 64 Md. 333, 1 A. 713 (1885), cited by the master in his memorandum opinion, involved a deed of land to be used as a place of worship by the Methodist Episcopal Church. The gift failed because of indefinite beneficiaries and the appeal was dismissed. The case stated the familiar premise, now discounted in the case of charitable trusts: "According to the uniform course of decisions in this State, a trust cannot be upheld unless it be of such a nature that the cestuis que trust (beneficiaries) are defined, and capable of enforcing its execution by proceedings in a Court of Chancery.” Id. at 337.

        Bennett v. Baltimore Humane Impartial Society, 91 Md. 10, 45 A. 888 (1900), involved a bequest to a home for aged men and women. The court held that no trust was created because of the uncertainty of the beneficiaries and creation of a perpetuity but that the gift was valid, subject to the condition subsequent. The next of kin had claimed that the will created a trust and it was void; therefore, they inherited. The court remarked: "Courts are not, or ought not to be, astute in searching for a construction which nullifies a will if there are other equally reasonable interpretations which uphold it.” Id. at 18, 45 A. at 889. See Emmert v. Union Trust Co., 86 N.E.2d 450, 455 (Ind. 1949) (Gilkison. dissenting) Cut res magia valeat quam pereaiC — that the thing may rather have effect than be destroyed).

        Rabinowitz v. Wollman, 174 Md. 6, 197 A. 566 (1938), involved a residuary gift to "such religious, charitable, scientific, literary or educational Hebrew corporations or associations” as might be selected by the executors. The Court applied the statute removing indefinite beneficiaries as an objection to the validity of a gift and held that the trustees had the power to choose appropriate institutions in effectuating the intent of the testatrix.

        Salem Church of the United Brethren v. Numsen, 191 Md. 43, 59 A.2d 757 (1948), involved a deed of land to an unincorporated religious association. The trust failed because designation of the beneficiaries was too vague and indefinite, a failing since cured by § 14-301 (c). The holding in the case was that the religious society did not acquire title by adverse possession.

        Second National Bank v. Second National Bank. 171 Md. 547. 190 A. 215 (1937), involved the construction of Md. Ann. Code Art. 93, § 337, the predecessor of § 14-301 (c), which then provided, in addition, that a corporation had to be formed to take the gift. The court held that a gift for an indefinite class, in this case "unfortunate girls,” will be upheld if the object is for a purpose commonly understood as charitable. Id. at 558, 190 A. at 221.

      . Charitable purposes beyond the confines of the first five categories mentioned in the Restatement (Second) of Trusts § 368 at 246 (1959), are explained in the comments to § 374 at 257. Comment 1 discusses "unpopular causes,” for which the publication of "Linda” qualifies, in the view of the late Mr. Grogan, appellees, the chancellor, and the master. We quote from comment 1:
      "1. Unpopular causes. If the general purposes for which a trust is created are such as may be reasonably thought to promote the social interest of the community, the mere fact that a majority of the people and the members of the court believe that the particular purpose of the settlor is unwise or not adapted to the accomplishment of the general purposes, does not prevent the trust from being charitable. Thus, a trust to promote a religious doctrine is charitable although the doctrine has few adherents. So also, a trust to publish books or pamphlets or to give lectures advocating the doctrine of the single tax is charitable, even though the doctrine may have few adherents. One of the great advantages resulting from charitable trusts is in the fact that they permit experimental tests of ideas which have not been generally accepted.

      The courts do not take sides or attempt to decide which of two conflicting views of promoting the social interest of the community is the better adapted to the purpose, even though the views are opposed to each other. Thus, a trust to promote peace by disarmament, as well as a trust to promote peace by preparedness for war, is charitable.” (Emphasis added.)

        Id. at 261.
      The experimental idea alluded to by Mrs. Wasserman in "Linda” is extra-sensory perception, in which she had an interest, and of which, according to the book, she had several personal experiences.

      . What is thought irrational varies with time and place. See State Tax Commission v. Whitehall Foundation, Inc., 214 Md. 316, 322, 135 A.2d 298, 301 (1957) ("conceptions of public charity, benevolence, and education change with the passing generations”; gift to promote horticultural or agricultural improvements is charitable); Eckles v. Lounsberry, 111 N.W.2d 638 (Iowa 1961) (bequest to promote instruction in vocal music and the proper development of the lungs of young children held charitable). The determination of rationality is sometimes difficult, as in the case of an idea born before its time. What court in 1400 would have enforced a trust to publish the writings of one who believed the world was round? What court today would not uphold a trust to publish the writings of those who believe the earth is flat?
      Among the whimsical or irrational trusts noted by Professor Bogert is a gift to provide a band to march to the testator’s grave on his birthday and play dirges. Bogert, Trusts and Tjrustees § 379 at 204 (2d ed.rev.1977). Professor Scott points out that "it is not always easy to draw the line between purposes believed to be irrational and those believed to be merely unwise. The test is not what the court believes, and not what the majority believe, but what rational persons may believe.” IV Scott On Trusts § 374.7 at 2920-1 (3d. ed. 1967).
      In National City Bank v. Case Western Reserve University, 369 N.E.2d 814 (Ct.C.P. Ohio 1976), the testatrix ordered her beautiful home razed. Witnesses testified that she felt it had no future as a residence because of its expensive Upkeep, and that she would rather have the home destroyed than see it used commercially as had so many of the once-fine residential tracts surrounding her property. The court decided that while her purpose was impelled by sentiment, her real desire that her home endure as a residence was not capricious or irrational, and that desire could be effectuated by selling the property to an historical society that would maintain it for the use of the public. Id. at 818-9.
      Two other recent cases involving the razing of property were decided on a different ground. In re Will of Pace, 400 N.Y.S.2d 488 (Sur.Ct. 1977) held that a testatrix’s direction to level her property was clearly destructive, produced no benefit to offset the waste of the asset, was purely capricious in that the testatrix’s wish was not something she would have done while alive, and would not be upheld because the result would be absurd and abhorrent to public policy. Id. at 493.
      The razing of a home in Eyerman v. Mercantile Trust Co., 524 S.W.2d 210 (Mo.Ct.App. 1975) was also held to violate public policy in that it was "senseless destruction serving no apparent good purpose....” Id. at 217. The case cited the Restatement’s examples of capricious purposes — the testator who directed that his money be thrown into the sea and the testatrix who ordered her home boarded up for 20 years. Id. at 216. The dissent stated acidly that the majority had allowed "wispy public policy” and "aesthetic sympathies” to interfere with legal judgment. Id. at 218. In re Estate of Coleman, 317 A.2d 631 (Pa. 1974) held that the testator’s direction that all trustee successors be Protestant was a personal vagary and unrelated to the proper trust purpose. "I Judicial significance need not attach to all manifestations of a settlor’s whimsy ... and not every notion of a settlor is entitled to judicial vindication.” Id. at 634.

      . The dialogue between Eugene A. Alexander, III, representing appellant here, and the chancellor went as follows:
      "MR. ALEXANDER: Your Honor, if Your Honor please, this case involves a trust that was created in the last will and testament of an individual named Eleanor B. Wasserman. She had an unfortunate tragedy in her life. She had a daughter whom apparently she loved and was devoted to, who died at a very young age. And she wrote this book called "Linda.”
      THE COURT: Apparently wasn’t much good, was it?
      MR. ALEXANDER: Sir?
      THE COURT: Wasn’t much good, was it?
      MR. ALEXANDER: What?
      THE COURT: The book.
      MR. ALEXANDER: Well, I don’t think that makes any difference for the purposes of this case, as far as that’s concerned. 1 am just telling you why she did it, sir.”

      . Books that have dealt with this theme include John Gunther’s "Death Be Not Proud, a Memoir,” which describes the death of his son, (Harper, 1949; 2d ed., Modern Lib. ¡953), and a recent best seller, "Why Do Bad Things Happen to Good People?” (Schocken, 1981) written by a rabbi, Harold S. Kushner, whose son died of a premature aging disease.

      . The word "charity” has always been afforded a broad meaning in law. It includes "substantially any scheme or effort to better the condition of society or any considerable part thereof.” Wilson v. First National Bank, 145 N.W. 948, 952 (1914). "It may be for any purpose in which the public has an interest such as ... the spread of the truth ... .” Collins v. Lyon, 24 S.E.2d 572, 580 (1943). Charity "embraces the improvement and promotion of the happiness of man.” People ex rel. Scott v. George F. Harding Museum, 374 N.E.2d 756, 761 (App.Ct.Ill. 1978). Such an expansive definition of charity logically leads to the "universal doctrine that charitable trusts should be liberally construed ... so as to give them effect if possible. ...” Baily v. McElroy, 195 N.E.2d 559, 566 (Ct.App. Ohio, 1963).

      . The attorney-author retired from practice in New York State in 1904. Thereafter, he devoted himself to writing and published a bibliography in 1934. Some of the titles were "Ertogenesis ofReligion,” "Divinity in Semen,” "Why Priests Don’t Marry,” and "Phallic Worship to Secularized Sex.’’Later titles focused on the same and related subjects — "The Love-Hate Complex,” "Three Attitudes Toward Sex,” "Sadism in Mormonism,” and "Sanctified Lust.” Associate Justice O’Sullivan declared that a trust to "distribute articles which reek of the sewer” will not be held valid, remarking that his reading of one of the articles was "a truly nauseating experience in the field of pornography.” Fidelity Title & Trust Co. v. Clyde, 121 A.2d 625, 629 (Conn. 1956). Such a holding would be questioned today, in view of changing public mores. See n.10, supra. In fact, as Professor Scott noted, the "purposes for which trusts can be created are as unlimited as the imagination of lawyers.” Scott I, Law of Trusts § 1 at 4 (3d. ed. 1977).

      . Despite some grammatical errors, the lack of chapter or paragraph headings and the need for professional editing, the book "Linda” is not at all irrational. We quote two passages which are especially striking. In the first, Linda is speaking to her mother:
      "Well, Mommy, I know this much. It’s not right for one person to say another is not as good,as he is because he isn’t the same color or the same religion. God wants everyone to be alike. We are all human beings. There is only one God and we are the same to Him. Colored people are good and so are the people who have a different religion. Those are my own ideas!”
      In the second, Linda is talking about her mother’s quest for spiritual solace:
      "Being with children a lot helps her to see how God wants us to think. We have to think in symbols, too. Everything around us is a symbol. The things we see all mean something much more real than our eyes tell us.
      "God is everywhere. He is in the trees, in the oak trees, symbols of power and strength and eternity. He is in the birds, symbols of the soul. He is in the squirrels, scratching away for the fruits and acorns. They are symbols of forethought, knowing ahead the things for God. They are symbols of spiritual striving always being busy to go higher to God. They are symbols, when they sit and watch and wait, of meditation of God’s Divine Word, and all His things of earth, part of Him.”