
    JOHN HENDERSON, JR., et al., vs. ISAAC O. HARPER, Trustee, et al.
    
      injunctions: pleading; filing written instruments referred to v‘i:' in bill. Parties: non-joinder; demurrer. Laches.
    
    ,, Under. General. Equity. Rule No. 4, np, order or process will be made or issued’ on any bill, etc., until each bill, etc,, together with all the exhibits referred to as parts thereof, be actually filed with the clerk. p. 432
    i Inhere a bill in equity is filed for the purppse of charging the lapds.of a decedent withfhe payment of'certain sums of money alleged to be distributable to his' children as legatees under his will, which is referred to in the bill, the will of the testator is a necessary part of the bill and should be'filed therewith, p. 432
    ,. fThp non-joindep or. defense of the want of. necessary parties, when apparent on the face of a bill, may be availed of by demurrer to, the bill. p. 432
    Equity does not countenance laches or long delays, and will rpfuse.to interfere in favor of.a party, guilty of laches.’or unreasonably acquiescence in. the assertion of stale demands.' p.433
    
      Decided January 12th, 1916.
    
    Appeal from the Circuit Court of Baltimore City. (Dobler, J.)
    The facts are stated in the opinio-”, of the Court.
    
      The cause was argued before Boyd, O. J., Briscoe, Burke, Thomas, Pattison, Urner and Constable, JJ.
    
      Wm. Edgar Byrd, for the appellants.
    
      R. Howard Bland (with a brief by Bartlett, Poe, Claggett & Bland, and Harley & Wheltle), for the appellees.
   Briscoe, J.,

delivered the opinion of the Court.

The object of the proceedings, in this case, is to charge the estate of John Henderson, deceased, with the payment of the sum of three thousand three hundred and thirty-three dollars, alleged to be the property of his surviving children, and to which it is alleged they became entitled upon his death, as part of the proceeds of their molher’s estate.

The facts as disclosed by the bill are these:

Mrs. Emaline C. Henderson, of Baltimore City, the mother of the plaintiffs, died on or about the 18th of June, 1895, intestate, but seized and possessed in fee simple of a lot of ground, improved by a three-story dwelling house, known and numbered as 1610 McCulloh St., Baltimore City.

She left surviving her, four children and her husband, John Henderson, and upon her death the property vested, under the existing law. the wife dying prior to the Act of 1898, in these children, as tenants in common subject to the life estate therein of the surviving husband.

The bill charges, that on or about September 30, 1895, the surviving husband, and the children of the mother sold the house and lot whereof she died seized and possessed to one James A. Richardson for the sum of ten thousand dollars, and by deed of the same date, conveyed the lot, in fee simple, to him, that the purchase money was delivered to the husband, who voluntarily divided it, as follows: Two-thirds thereof, to wit, six thousand six hundred and sixtv-six dollars and sixty-‘-ix cents he paid to the children and retained for his own use, the remaining one-third thereof, with a declaration, at the time, that “he would retain this amount during his lifetime and apply the income thereof to his own use, and upon his death they, meaning the children, would be entitled to the principal.”

The bill then avers that it was the belief of the husband, at the time of the sale of the property and the payment of the purchase money, that he was entitled to the use of one-third of the purchase money only for his lifetime, and that he was not aware that he was entitled to the use of the whole fund for life.

The bill further avers, that John Henderson, died on or about the 10th of January, 1914, possessed of the $3,333 1/3, but which was intermingled with his other property, during his life, and it passed, at his death, to the trustee and executor of John Henderson, for the uses and purposes set out in his will; that while his personal estate is not sufficient in the hands of the executor to pay the amount due them, his real estate is sufficient to pay his debts, and they are entitled to have the estate charged, with the payment of the fund to which they are entitled. The prayers for relief, as set out in the bill are as follows: (1) That the estate be charged with said amount; (2) That the trustee may account for the same; (3) That the said sum may be distributed among the parties entitled thereto, and (4) The prayer for general relief.

The defendants demurred to the bill and upon hearing, the demurrers were sustained and the plaintiffs declining to amend, the bill of complaint was dismissed, with costs, by the Court below.

The bill in this case, we think, was defective in several respects, and the Court was right in sustaining the demurrer, and upon the refusal of the plaintiff to amend, in dismissing the bill.

By General Equity rule No. 4, it is provided that no order or process shall be made or issued upon any bill * * *, and other paper until each bill or petition- together with all the exhibits referred to as parts thereof be actually filed with the clerk.

It will, ha seen; that in this .case the will of John- Henderson, referred to in the ninth paragraph of the bill,, is a- necr essary.part thereof,; and should havaNeen filed with- Ihe-biH. Isaac O.- Harper,* executor and trustee; under - the. will- is a party defendant, and the prayers of; the bill are to charge the trust estatewith-the-payment Of the,eláijn, and requir? ifig tiie trustee- and executor- to account in ;a. Court;of Equity for the fund in question. Chappell v. Clark, 92, Md. 100.

, By exhibit;,-,No>, two, .filed with the.* hill;, it?,-appears, that two of the children of Mrs-. Henderson are-married, and it is Stated,by. the? appeU.be. that all of them, are married. It, is clear,., that: if the property in; question- is to b.e treated, as ¡real estate, they are-necessary, parties to the case. '

-The joinder,.of the husbands ¡and-wives-would be:required tQ.-hind- their interest. , . , . , . -

;, Thqnpn-j-C!,i;u4er:0ir defense of the want-, ofnecessary.parti.es yrhen-apparent.npon-lhe.face of, the hill, can he-availed of, by dpnrarrern to the bill; Miller’s Equity, sec. 140; Phelps' Juridical Equity, sec. 39.

If the. fund, here .in question is to be treated as. personalty ah,the, daienf.tEp, division between.,the father.and the-children of Mrs. Henderson, the. first wife,, it; .was properly distributed between the parties in interest; Art. 93, sec. 121, Code P. G. Laws; Vogel v. Turnt, 110 Md. 200.

The contention of the appellants is, that the . husband was entitled, to. the wÉole fund during his, life, hut; he voluntarily paid to this children two-thirds thereof, in ignorance-of big legal rights and retained “onerthird of what he was,entitled, during, his life and apply the income thereof, to his. own use, and, upon, his death they.would be: entitled to the principal thereof.”

We find,hut little merit in-the, plaintiff’s, contention, under the facts of this .case., '

The father treated the fund here in dispute for over eighteen years as his absolute property, with the consent and acquiescence of the plaintiffs. It was not only treated by all parties as his property, hut it was intermingled with his own, and passed at his death to the appellee, as executor and trustee, under his will.

The children accepted and received under the agreement with their father, the sum of $6,666.66 on the 30th of September, 1895, and with legal interest thereon up to his death, would amount to $13,976.38, a sum larger than they were entitled to, if they had received the whole amount, under the law, at the death of their mother.

It is not alleged that the plaintiffs were ignorant of their father’s rights at the time they accepted the $6,666.66, but are relying upon their father’s ignorance of the law, to aid them in securing a larger sum.

It is well settled, that Courts of Equity do not countenance laches or long delays and refuse to interfere in favor of a party guilty of laches or unreasonable acquiescence in the assertion of stale demands, after a limited period; Hanson v. Worthington, 12 Md. 441; Syester v. Brewer, 27 Md. 319; Wilhelm v. Caylor, 32 Md. 151; Warburton v. Davis, 123 Md. 232.

We think the plaintiffs, apart from the defects of the bill-have failed to make out a case to entitle them to the relief asked by the bill.

The decree appealed from will he affirmed.

Decree affirmed, with costs.  