
    JOHN J. FRISBY and Others v. JARED PARKHURST, and Others. Jared Parkhurst and Others v. John J. Frisby, and Others.
    
      Decided June 10th, 1868.
    
    Wills ; contracts and agreements as to devises of land ; SPECIFIC PERFORMANCE. ; CREDITORS’ RIGHTS. PRACTICE IN EQUITY ; SUPPLEMENTAL ANSWER ; DISCRETION OF COURT. APPEALS ; WHEN FORMER DECISION RINDING. WITNESSES ; RE-EXAMINATION.
    An agreement to devise lands to a third party, made by parties competent to contract, for a meritorious and valuable consideration, will be enforced in equity, in favor of the creditors of the assignee for a valuable consideration, of the third party, in a contest as to the proceeds of the property that was to have been devised, 
       p. 68
    *A decision upon a former appeal is conclusive upon a second appeal between the sam'e parties, only where the facts are the same. 
       p. 67
    The action of a Court of Equity, on an application for leave to file a supplemental answer, depends upon its discretion, and cannot be assigned as error, or reversed on appeal,  p. 69
    Where a witness had been previously examined and grave doubts were entertained as to the true meaning and construction of his testimony, the parties have a right to direct his attention to the particular point upon which his further evidence is required. p. 69
    Cross Appeals from the Circuit Court for Baltimore County.
    This case was before this court on a former appeal, and may be found reported in 20 Md. 62, where the facts are very fully stated. By the decree of this court passed upon that appeal, the order of the Circuit Court, continuing the injunction, was affirmed, and the cause remanded for further proceedings. Upon the return of the- case to the Circuit Court, -the defendants, Horatio L. Whitridge and Thomas S. Alexander, upon leave obtained, filed a supplemental answer setting forth the fact that Mrs. Elizabeth Frisby had entered into an agreement with her mother, Mrs. Edwards, that the property devised by James Edwards, should be settled in a certain way, and that the will of Mrs.' Edwards was made upon and in execution of that agreement, expressed the family settlement thus mutually determined on, and had Mrs. Frisby’s full assent at the time. The supplemental answer was filed on -the 9th of June, 1863, and on the 24th of September, 1863, a commission was issued to take testimony. *Under it Mr. James B. Ricaud, whose previous deposition taken in another suit between different parties, in the Superior Court of Baltimore City, had been made evidence in this cause by agreement, was re-examined. He testified, distinctly and unequivocally, that there was an agreement between Mrs. Frisby and her mother upon the subject of the disposition of the property ; -that the will of Mrs. Edwards was executed in pursuance of such agreement, and that the parties, both, agreed that its provisions should be carried out. He further proved that Mrs. Frisby, after the execution of the will, both in the life-time -of Mrs. Edwards, and after her death, repeatedly declared that she would stand to and carry out the will of her mother, as made according to the understanding or agreement so had between -them. To the interrogatories propounded for the purpose of eliciting the explanatory testimony of Mr. Ricaud, and to his answers to them, the complainants excepted, as also to the original and supplemental depositions of the witness in regard to the agreement between Mrs. Edwards and Mrs. Frisby. Subsequently, the complainants filed a petition, asking that the supplemental answer should be -taken from the file ; this petition, together with the questions involved in -the final decision of the cause, were set down for hearing at the same time. 'The court (Emory, J.,) after argument, passed a decree overruling the objection to the supplemental answer, and allowed the same to stand as part of the proceedings and pleadings ; and also overruled the exceptions to the supplemental interrogatories propounded to Mr. Ricaud, and to his answers thereto. Upon the question of an agreement between Mrs. Edwards and Mrs. Frisby, the court being of opinion that the testimony of Mr. Ricaud was not strengthened by his re-examination, and not feeling at liberty to disregard the opinion of the Court of Appeals, decreed a distribution of the proceeds of the sale of the property in question, amongst the creditors of Mrs. Frisby. The complainants appealed from so much of the decree as admitted the supplemental answer, *and overruled the exceptions to the interrogatories to Mr. Ricaud and his answers thereto ; and the defendants appealed generally.
    The cause was argued before Bartol, C. J., Stewart, Brent, Grason, Miller, Alvey and Robinson, JJ.
    
      Arthur W. Machen and S. Tcackle Wallis, for Whitridge and Alexander, Trustees :
    The decision upon the former appeal does not preclude the creditors of John J. Frisby’s assignee from the defense set up in the supplemental answer. The question of an agreement, or valid family settlement, was not in issue, and therefore any opinion then expressed upon it, was extra-judicial. There can be no adjudication of a question which is not put in issue by the parties to the controversy. The decision must be germane to the issue. What transcends the issue before the court, is not the legitimate opinion of the court, but a mere judicial dictum, and has no further force. Graham v. Maxwell, 2 Dow, 314 ; Henderson v. Malcolm, 2 Dow, 285 ; Bainbrigge v. Baddeley, 2 Ph. Ch. 705 ; Ellicott v. Nichols, 7 Gill, £07 ; Guest v. Warren, 9 Exch. 379 ; Thistle v. Frostburg Coal Co., 10 Md. 145 ; Sellman v. Bowen, 8 G. & J. 55 ; Simpers v. Simpers, 15 Md. t6o ; Mason v. Alston, 5 Seld. 28 ; King v. Chase, 15 N. H. 9 ; Foster v. Jackson, Hobart, 53, 54 ; State v. Reigart, £ Gill, 25 ; Stevenson v. Schriver, 9 G. & J. 336, 337.
    Not only is the question of the agreement now put in issue by the amendment of the pleadings, but a different state of facts is before the court. A preliminary hearing upon an interlocutory order, does not stand like a decision in a former distinct litigation. On the contrary, it is in accordance with the theory of equity practice, that ithe case may stand differently upon the evidence at final hearing. And the court may, without inconsistency, come to one conclusion for *the purposes of the temporary injunction, and arrive at another when all the proofs are in, and the questions in the cáse fully presented.
    The evidence discloses an agreement or family arrangement which, upon well established principles of equity, was binding on Mrs. Frisby. It is definite and precise, for the will expresses what was to be accomplished. It has mutuality, is amply supported by consideration, and (the performance of it, on Mrs. Edwards’ part, relieves the case from any difficulties arising out of the Statute of Frauds. Gaither v. Gaither, 3 Md. Ch. 160 ; Small v. Owings, 1 Md. Ch. 369 ; Johns v. Johns, 20 Md. 58 ; Rhodes v. Rhodes, 3 Sandf. Ch. 279; Brinker v. Brinker, 7 Pa. St. 53 ; 2 Story’s Eq. sec. 715.
    
      Family arrangements for the settlement of the property, of the family, have peculiar claims to the favorable consideration of a Court of Equity. To receive a case into this class, the court does not require that any doubtful or disputed right should have been the subject of adjustment, nor will it inquire into the quantum of consideration. Williams v. Williams, Law Rep. 2 Ch. Ap. 294, by the Lord Chancellor and the Lord Justice Turner, (1867,) affirming a decision of Kindesly, V. C., 2 Dou. & Sm. 378 ; Stockley v. Stockley, 1. Vesey & Beames, 30.
    Under the circumstances of this case, not to treat Mrs. Frisby as bound by the provisions of her mother’s will, would be to make her the instrument of a fraud. On the other hand, to sustain the will of Mrs. Edwards, is to respect the principle on which rests the'great doctrine of equitable estoppel. McClellan v. Kennedy, 8 Md. 251’; Alexander v. Walter, 9 Gill, 254 ; Freeman v. Cook, 2 Exch. 662, 663.
    Upon the Cross-Appeal. — The action of the Circuit Court in allowing an amendment of the answer by receiving the supplemental answer, is not subject to review on appeal. Warren v. Twilley, 10 Md. 46 ; Calvert v. Carter, 18 Md. 107 ; Code of Pub. Gen. Laws, Art. 16, sec. 16.
    *No rule of the Circuit Court for Baltimore County, required notice to be given of the application for leave to amend. The practice is regulated'in each case by the sound discretion of the Judge. In this instance, the cause was still at the same stage as when the original answer was filed. No replication had been put in, nor other proceeding taken by the complainants in consequence of the answer, which also remained open to exception, as well as to amendment. Bowie v.. Stonestreet, 6 Md. 433 ; Murdock’s Case, 2 Bland, 463 ; McKim v. Thompson, 1 Bland, 162.
    There is reason to disturb the ruling of the Circuit Court upon the complainants’ exceptions to the evidence.
    The mode of examination adopted in re-examining Mr. Ricaud, before Commissioner Tormey, was perfectly legitimate. By the agreement of both parties, his former deposition, taken in the Superior Court, was treated as evidence introduced under the commission, and the solicitors of the defendants thereupon proceeded to call the attention of the witness to certain parts of his testimony, which had given rise to a difference of opinion as to his meaning, and requested him to sáy what he did mean. The interrogatories are not liable to criticism if they are construed in the light of the surrounding circumstances. A witness has the clear right to interpret his own testimony. People v. Mather, 4 Wend. 247 ; 2 Phil. Ev. 890, 891 ; 1 Greenl. Ev. sec. 434 ; Lee v. Tinges, 7 Md. 234.
    
      R. B. Taney Campbell and William Schley, for Parkhurst and others :
    On the appeal of Parkhurst and others, it was insisted that although the right to amend the answer, upon application, before final decree, is given by the 16th section of Article 16 of the Code, yet it is restricted and qualified by the words, “ so as to bring the merits of the case in controversy fairly to trial.” Such amendment can only be made by leave of the court; and hence the established practice of the court *must be regarded. The court will not allow an amendment, unless informed of the nature of the proposed amendment ; and unless satisfied that it is necessary to bring the merits of the case in controversy fairly to trial. A defendant will not be permitted to make a new case, and raise a new controversy ; and he ought to satisfy the court that he has been guilty of no default, no laches, and seeks no unjust advantage. Calvert v. Carter, 
      18 Md. 73 ; Bank-v. Stryker, 1 Clarke, 382 ; Strange v. Collins, 2 Vesey & Beames, 163.
    The answer in this case is not properly an amended answer. The original answer is wholly unchanged. No allegation therein contained is retracted. In the application for leave to file a new answer, it is termed a supplemental answer; it is so denominated in the order granting leave to file it ; and is s,o styled in its caption. And in this new answer, the defendants expressly rely on all the averments contained in their former answer : thus presenting the inconsistent defenses of a title' by election, dependent on volition ; and a title by contract, dependent on obligation.
    The answer ought to have been taken off the file. It was irregularly introduced into.the case, and filed in disregard of the established practice in chancery.
    On the appeal by Messrs. Alexander & Whitridge, it was insisted, on behalf of the appellees, that the decree of this court, on the former appeal, was a final adjudication, that Mrs. Frisby had not made an election, binding on her creditors, to take, under the will of Mrs. Edwards, the benefits to her given under said will ; and to renounce the benefits to her given under the will of James Edwards, so far as it was inconsistent with the will of Mrs. Edwards. There is no .pretense of any new evidence in this respect. . The case, in this aspect, is precisely now what it was when formerly before the court.
    The decree of this court, on the former appeal, was a solemn decision, that, upon the evidence then in the cause, *there was no sufficient evidence of a binding agreement on the part of Mrs. Frisby, to give effect to, or acquiescence in the devise by Mrs. Edwards to John J. Frisby. If the record now before-the court presents the same state of -case on which the court made its decision on the former appeal, there is no open question. The parties are the same, and if the evidence be the same, it is res adjudicata. It is the law of the case, and is binding on the court itself. Mitchell v. Mitchell, 6 Md. 224 ; 'Johns v. Johns, 20 Md. 61, 62 ; Alexander v. Worthington, 5 Md. 476, '488 ; Magruder v. Carroll, 4 Md. 345 ; C.arroll v. Carroll, 16 How. 286.
    
      
       As to agreements to devise real estate, see Whitridge v. Parkhurst, 20 Md. 62.
    
    
      
      
         Cited in Royston v. Horner, 75 Md. 565. Cf. Thompson’s Appeal, 15 Md. 268, where it is held that if the Court of Appeals has declared a deed of trust for the benefit of creditors to be void, that decision is the law of the case, and must govern all future proceedings in the same case, notwithstanding a different decision upon a similar deed, may have been subsequently made in another case.
    
    
      
       Appeals do not lie from the action of inferior courts upon matters that lie in their discretion; see cases cited in Warren v. Twilley, 10 Md. 39, note (a).
    
   Grason, j.,

delivered the opinion of the court :

This case has arisen out of the conflicting claims of the creditors of Elizabeth Frisby and John J. Frisby, respectively, to the proceeds of the sales of the property mentioned in the proceedings in the cause, and this is the second time this case has been before this court upon appeal. The first appeal was from an order of the court below, continuing the injunction till the final hearing. The order was affirmed by this court, and the cause remanded for further proceedings. A supplemental or amended answer was filed, further evidence was taken and, upon final hearing, a decree was passed decreeing, among other things, that the property, in the proceedings mentioned, was the property of Elizabeth Frisby, and, as such, was held to the payment of the debts due to the complainant and others, her creditors, at the time of her death. From this decree the defendants appealed. It has been urged that the decision upon the former appeal has settled the questions which the present appeal presents for the consideration of the court, and is conclusive upon the parties and the court. It is perfectly clear that, if the same questions are presented upon this appeal as upon the former, and upon the same state of facts, the former decision must stand as the law of this case and the parties and this court must be bound by it. The *question presented by the record, upon that appeal, was whether Mrs. Frisby had made an election to take the property in question under the will of Mrs. Edwards or that of her father Mr. Edwards, and though the question whether or not there was an agreement between Mrs. Frisby and Mrs. Edwards, was not directly presented by the pleadings, it came up incidentally, and its existence and binding force were forcibly urged by the counsel for the appellees. The court decided that no election had been made, and that there was no sufficient proof of an agreement between Mrs. Frisby and Mrs. Edwards, and the order continuing the injunction till final hearing was affirmed, and the case went back for further proceedings. The evidence of such an agreement, as contained in the record of the former appeal, was, owing to the language used by the witness, uncertain, ambiguous and liable to misconstruction. Is there any uncertainty, ambiguity or insufficiency in the evidence, as presented by the record in this case ? Is the state of the facts the same in this, as in the former appeal ? We think not. Mr. Ricaud was again examined and his attention called to his former evidence, and he has clearly, distinctly and unequivocally sworn that there was' an agreement between Mrs. Edwards and Mrs. Frisby, by which the former who was possessed of a large real and personal estate in her own right, as well as of a life estate in certain property devised to her by 'her husband, with a reversion to Mrs. Frisby in fee, was permitted to devise to John J. • Frisby, “ Oxford and Mount Pleasant,” and “ Lot No. 17,” (the property so devised by her husband,) in consideration that she (Mrs. Edwards) would devise to her daughter, Mrs. Frisby, a life estate in the whole property, including as well the property which Mrs. Edwards held in her own right, as' the property so devised to her for life, by (her late husband, with the right to Mrs. Frisby to give the first named property to her children, other than John J. Frisby, in such shares and proportions, and for such estate or estates as she by her last will and testament might determine. Mr. Ricaud *further proves that both of the above named ladies, and be thinks all the other members of the .family were present, when he drew Mrs. Edwards’ will ; that he received instructions from both of the said ladies — that it was drawn and executed in pursuance of the said agreement, and that both before and after its execution, Mrs. Frisby stated to Mrs. Edwards that she would' stand to and carry out the provisions of itbe said will. The will having been drawn and executed in pursuance of the agreement, shows clearly and distinctly what the agreement was. The state of facts, thus presented, is very different from the proof upon the former appeal, and it is admitted by the counsel for the appellees that the evidence must be the same to make the decision upon the former appeal binding upon this. This view of the case is also sanctioned by State v. Reigart, 1 Gill, 27. The facts of that casé were, that a legacy to Elizabeth Stevenson was paid to her husband ; he died and his widow and her brother, Philip Reigart, administered upon his estate ; she exhibited to the Orphans’ Court her account against her husband’s estate for the amount of the legacy he had received, with a copy of the will under which she took, and proof 'tending to show that the legacy had been paid to her husband in consideration of a promise and agreement by him to invest it in property to be held as the separate estate of his wife. The Orphans’ Court passed the claim, and the creditors and distributees of the husband appealed and the Court of Appeals decided that the will did not give her the legacy as her separate estate, and that there was no sufficient proof of the alleged promise and agreement by the husband. See Stevenson v. Schriver, 9 G. & J. 337. A judgment creditor of the husband afterwards brought suit upon the administration bond of Mrs. Stevenson and Reigart, who pleaded general performance and plene administravit, and the question was raised whether the widow was entitled to retain out of her husband’s estate, as his creditor, on account of her legacy which he had received, and full proof was produced of his agreement to invest it in property for her separate use. The judgment *was in her favor, and the plaintiffs appealed and relied upon the decision in the former case as conclusive upon the question, but the court affirmed the judgment.

The agreement between Mrs. Edwards and Mrs. Frisby having been established by the proof in the cause, and this court being of opinion that the decision upon the former appeal does not conclude the rights of the parties in the case now under consideration, the only remaining question to be determined is, is the agreement such an one as equity and good conscience require to be enforced. The agreement was made by parties competent to contract, for a meritorious and valuable consideration, and it has been completely executed by Mrs. Edwards upon her part, who has since died. Mrs. Frisby received under Mrs. Edwards’ will not only a life estate in the property mentioned in the proceedings in this cause, but also a life estate in all her mother’s property in consideration of her agreement to stand to and carry out the devise of the reversion in “ Lot No. 17,” and “ Oxford ” and “ Mount Pleasant,” to John J. Frisby ; and if, after enjoying the benefits, flowing from the execution by Mrs. Edwards of her will in pursuance of the said agreement, it is not to be enforced as against Mrs. Frisby, a fraud will have been perpetrated, not only upon Mrs. Edwards, but also upon John J. Frisby, who will be deprived of all benefit of his grandmother’s estate, while it clearly appears that she intended him to receive a large share of her bounty. Justice to the living and to the dead, as well as sound principles of equity, require that the contract should be enforced as against Mrs. Frisby. Owing’s Case, 1 Bland, 397; Dufour v. Pereira, 1 Dick. 420; 1 Story’s Eq. Jur. sec. 781.

The complainants have also appealed from that part of the decree which overrules their objections to the filing of the supplemental answer of the defendants, and allowing the same to stand as part of the proceedings and pleadings in the cause, also from that part of it which overrules their exceptions to the supplemental interrogatories to Mr. Ri.caud, and his answers thereto.

*The action of a Court of Equity, on an application for leave to file a supplemental answer, depends upon its discretion, and cannot be assigned as error, or reviewed on appeal. Calvert v. Carter, 18 Md. 74.

This court is of opinion that there was no error in the ruling of the court below upon the exceptions to the interrogatories and answers. Mr. Ricaud had been previously examined ; grave doubts had been entertained as to the true meaning and construction of his testimony,- and the parties had a right to direct his attention to the particular point upon which his further evidence was required. The rulings of the court below, upon the appeal of the complainants, are affirmed, and, upon the appeal of the defendants, this court will pass a decree reversing the decree of the court below, and sending back the case for further proceedings.

The costs upon both appeals in this court and in the court below to be paid out of the trust fund.

Decree reversed and cause remanded.  