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(123 Md. 128)
PETTIT v. COMMISSIONERS OF WICOM-
ICO COUNTY. (No. 33.)
(Court of Appeals of Maryland. March 19,

ble therefor.

1914.)

[Ed. Note. For other cases, see Highways, Cent. Dig. 88 358-370, 372, 373; Dec. Dig. 8 115.*]

[Ed. Note. For other cases, see Eminent Domain, Cent. Dig. § 626; Dec. Dig. § 242.*] 3. DAMAGES (§ 217*)-INSTRUCTIONS. An instruction on damages for taking and injuring land should lay down a definite rule to guide the jury in estimating the damages. [Ed. Note. For other cases, see Damages, Cent. Dig. §§ 556-559; Dec. Dig. § 217.*] 4. HIGHWAYS (§ 115*)-CONSTRUCTION-LIABILITY OF COUNTY COMMISSIONERS.

The report of the examiners in condemnation by county commissioners under Acts 1904, c. 583, of land for widening a road, not having been ratified by the commissioners, as thereby required, they did not acquire title to or interest in the land, and therefore in constructing the road on it were wrongdoers.

straighten the road, and prescribed the procedure to be followed. Section 128 of the act provided that:

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"The county commissioners of Wicomico county shall have the power by ordinance or 1. HIGHWAYS (§ 115*)-INJURY FROM CON- resolution of condemning, laying out, opening, extending, and making new roads, and for alSTRUCTION-LIABILITY. Tough county commissioners condemn atering, straightening, widening, grading, imstrip of one's land for widening a road, they, in proving or closing up, in whole or in part, any * * * when in their opinion doing the work of widening unnecessarily in- existing road juring his land outside that condemned, are lia- the public necessity or convenience requires the same without any previous application or missioners aforesaid shall proceed by condempetition. * *If, however, the county comnation in the exercise of the powers herein granted, all benefits or damages done, suffered, 2. EMINENT DOMAIN (§ 242*) — CondemnA- or incurred by laying out, opening, and making TION-COLLATERAL ATTACK. new roads, or by altering, straightening, widenCounty commissioners having had jurisdic-ing, grading, improving, or closing up, in part tion in condemning land for the widening of a or in whole, any existing road * * shall road, the question of disqualification of one of be determined or assessed by three disinterthe examiners, or a mere irregularity in that ested persons, freeholders and residents of statutory provisions were not strictly followed, Wicomico county and above the age of 21 may not be inquired into collaterally; direct years, who shall be appointed by the county appeal from the action of the commissioners commissioners aforesaid and shall, within ten being the remedy. days, after notice of their appointment take an oath before a justice of the peace of Wicomico county that they will faithfully and fairly, and without partiality or prejudice, view and assess the cost and damage to be suffered and incurred by any person interested in said property over, through, or by which the said road ened, graded, or improved; and also to estiis to be opened, closed, extended, widmate the benefits that may accrue therefrom to any subsequent property owner, through and by which the said road, drain, waterway, or landing is to be opened, closed, extended, widened, graded, or improved, or any property adjacent thereto, or any other property injured or benefited by said road; * but they shall give at least fifteen days' notice in one or more newspapers published in Wicomico county of their purpose to lay out, open, extend, close up, widen, straighten, grade, or improve the road as directed to be laid out, etc., and of the day and hour of place of meeting for said purpose; and shall meet at Worcester the time and place mentioned in the notice given by them and proceed to exercise the powers and perform the duty assigned and required of them, and to ascertain whether any and what amount in value of the damages will be caused thereby for which the owner or occupant of any rights or interests claimed in any ground improved ought to be compensated over and above the amount in value of benefits which will thereby accrue to said owner or occupant thereof, and ascertain what amount in value or benefits will thereby accrue to any lot or parcel of ground by or through which the same may pass or improvements made, or any other property, or to the owner or occupant thereof, which said lot or parcel of ground or owner or occupant thereof ought to pay. They shall locate boundaries and prepare an explanatory map giving description of the road opened, closed, extended, widened, straightened, each separate lot or parcel of ground deemed to have sustained damage or received benefit, BURKE, J. The appellant is the owner and they shall, within twenty days, return to the of a tract of land which binds upon a county county commissioners such maps, together with the amount of damage awarded such owner or road leading from Rocka Walking milldam occupant and the amount of benefits assessed to Catchpenny in Wicomico county. The to any lot or parcel of ground or the owner road is referred to in the declaration and thereof, together with a certificate of their mentioned in the evidence. The county com-ed, or allowed, and amended, in whole or in qualifications, which may be ratified or rejectmissioners of Wicomico county determined part, by said county commissioners; providto widen and straighten this road in front ed, that the county commissioners shall give of the appellant's property. The act of 1904, ten days' notice at least by publication in one newspaper published in Wicomico county, or by chapter 583, conferred upon the commission- ten days' notice at least in writing to each ers of that county the power to widen and property owner so interested, of the time set for

[Ed. Note. For other cases, see Highways, Cent. Dig. §§ 358-370, 372, 373; Dec. Dig. § 115.*]

Appeal from Circuit Court, County; Robley D. Jones, Judge. "To be officially reported."

Action of trespass by Linden H. Pettit against the County Commissioners of Wicomico County. From an adverse judgment, plaintiff appeals. Reversed, and new trial awarded.

Argued before BOYD, C. J., and BRISCOE, BURKE, THOMAS, URNER, STOCKBRIDGE, and CONSTABLE, JJ.

Elmer H. Walton, of Salisbury, and John H. Handy, of Snow Hill, for appellant. L. Claude Bailey, of Salisbury (Joseph L. Bailey, of Salisbury, and John W. Staton, of Snow Hill, on the brief), for appellees.

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For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

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final action on the return of said examiners, | ratification must be made by noon on the above and the county commissioners shall act on said date. If the comissioners' meeting is postponreturn within twenty days after the expiration ed from this date the report will be taken up of said notice and may issue a new commis- at the next regular meeting of the board. By sion as in their judgment may seem proper; order of the board. Thomas Perry, Clerk." and before proceeding to actually open, widen, extend, straighten, or close any such road the county commissioners shall pay or tender to the person, his agent, guardian, or representative, the amount of damages awarded; and if any one shall feel aggrieved by the decision of the county commissioners in any matter affected by their decision, he may appeal to the circuit court for Wicomico county by giving written notice within twenty days from said decision filed with the clerk of the county commissioners of his desire to appeal. And on filing of said notice it shall be the duty of said clerk to deliver the papers connected therewith to the clerk of the said court, and the same proceeding shall be had on the appeal as in cases of appeal from judgments of justices of the peace; provided, nevertheless, that the county commissioners may decline to open, lay out, extend, grade, widen, or straighten any * *notwithstanding the decision of the said court, but in case of refusal to do so they shall be liable for all cost incurred and shall pay the same; all benefits assessed by virtue of the above provisions shall be prior liens on the respective lots or parcels of ground which are assessed from the time of the final ratification of the aforesaid return, and shall be collected as taxes are now collected or may be collected by action."

road

The record does not show when the report of the examiners was filed. Mr. Clarke, one of the examiners, was the road engineer of Wicomico county, and was appointed and paid by the county commissioners. The return of the examiners was admitted in evidence over the objection of the appellant, and the action of the court in overruling the objection and admitting the return in evidence constitutes the first bill of exceptions. The appellant bases his objection to the admissibility of the examiners' return upon five grounds: First, that no ordinance or resolution 'was passed by the commissioners as required by the act; secondly, that Clarke was disqualified as an examiner, for the reason that he was an appointee of the county commissioners, and therefore was not a disinterested freeholder; thirdly, that the examiners did not take the oath within 10 days after their appointment, as required by law; fourthly, that one of them took the oath before the clerk, and not before a justice of the peace, as the law directed; and, fifthly, that the return was not made within the time prescribed by the act.

On December 2, 1909, the county commissioners appointed James M. Jones, A. W. Gordy, and H. M. Clarke, commissioners or examiners to lay out, extend, widen, etc., Acting under the proceedings, the county said road, and to assess benefits and damages commissioners proceeded to widen and as provided for in the act, and to locate straighten the road. The work of construcboundaries, prepare an explanatory map, tion upon the plaintiff's land was begun by showing each seperate lot or parcel of land Mr. Orlando Taylor, one of the county comdeemed to have sustained injuries or received missioners, and whose son was in charge of benefits, together with the amount of dam- the men doing the work. They appropriated ages and benefits awarded, with directions a strip of the plaintiff's land about four to report their proceedings to the county feet wide and binding on the county road commissioners, with a certificate of their from 1,000 to 1,200 feet, and, against the proqualifications, within 20 days from the date test of the plaintiff, dug up and destroyed a of their meeting upon the premises. The number of shade trees, and, without any necommission was issued January 5, 1910. cessity for so doing they hauled parts of the Messrs. Jones and Gordy qualified before a trees and branches over the plaintiff's propjustice of the peace for Wicomico county, erty, and deposited them upon his strawberry but H. M. Clarke qualified before the clerk patch, located quite a distance beyond the of the court. The examiners met on the boundaries of the new road. The plaintiff premises on March 7, 1910, having first given instituted an action of trespass in the circuit the notice required by the act. They made court for Wicomico county to recover damtheir return, to which was attached as a ages for these injuries. Upon his suggestion part thereof the commission, certificate of and affidavit the case was removed to the publication and plat; they estimated the circuit court for Worcester county for trial. cost of construction to be $650; they assess- At the conclusion of the evidence of both ed the damages to the various property own-parties a verdict and judgment were entered ers at $180, and the benefits at $64. The appellant was awarded $1 as damages, and assessed $1 for benefits. Upon the return of the examiners the county commissioners published in the Wicomico News for two weeks prior to October 25, 1910, the following no-sented which will be first stated. The dec

tice:

"The county commissioners of Wicomico county hereby give notice that the report of James M. Jones, A. W. Gordy and H. M. Clarke, commissioners, to widen and straighten the Rocka Walking to Catchpenny road, in Quantico district, has been filed in this office and will be taken up for final ratification on

for the defendant under the direction of the court, upon the ground that no legally sufficient evidence had been offered under the pleadings to entitle the plaintiff to recover.

There are some questions of pleading pre

laration contained four counts, to each of which the defendant demurred. The court overruled the demurrer to the first count and sustained those to the second, third, and fourth counts. We can discover no error in the first, third, and fourth counts. The

been taken by any one interested therein from the said decision of the said county commissioners after payment or tender to the respective persons entitled thereto of any and all damages awarded them, * *the alleged wrong was done in widening and straightening mills to Catchpenny in accordance with the said public county road from Rocka Walking report and explanatory map and location of boundaries by the commission aforesaid."

It also refiled the general issue plea. The defendant joined issue on the general issue plea, and demurred to the amended plea. The court overruled the demurrer, and the plaintiff then filed five replications to the plea. Issue was joined upon the first replication, which was a direct traverse of the facts al

and entered certain land of the plaintiff ly-eral Assembly of 1904, to determine and assess ing and being and situated on the public all benefits and damages to be suffered and incounty road from Rocka Walking to Catch-ening the public county road from Rocka Walkcurred by any person by widening and straightpenny, Quantico district, in the said Wicom-ing mills to Catchpenny, and no appeal having ico county, owned in fee simple and occupied by the plaintiff, and dug up and cut down the trees thereupon growing, and took possession of a large quantity of said land, and wrongfully dispossessed the plaintiff of the same on or about the month of March, or a little later, in the year 1910. The third count charged that the defendant "wrongful- | ly seized and took possession of a large quantity of the plaintiff's land situated in Quantico election district, in Wicomico county, Md., owned and occupied by him as a residence lying on the county road from Rocka Walking to Catchpenny, in said Wicomico county. The said defendant, under some claim that such taking was under some pre-leged in the plea, and rejoinder was filed to tended right that was necessary for the public use, seized and took possession of the same, and says that the defendant did not pay him, or any one for him, anything for the same, contrary to the Constitution of the state of Maryland, and the defendant never paid for the same or tendered him any payment therefor, or any one for him, to the great wrong and injury of the plaintiff," etc. The fourth count alleged that the defendant "wrongfully entered the land of the plaintiff and dug up and cut down and carried away a large quantity of shade trees, ornamental trees, timber trees, and other valuable trees, strawberry plants, and other valuable plants and shrubbery, and converted the same to the defendant's own use," etc.

The second count was bad. It alleged that the defendant was acting under its power as County Commissioners of Wicomico county to open, alter, close, and straighten public county roads, and then proceeded to set out certain acts which could only be taken advantage of by exceptions to the return of the examiners, or by a direct appeal to the court from the action of the commissioners ratifying the return. The count conceded the jurisdiction of the commissioners, and upon that concession any inquiry into practically all the facts alleged is precluded under the authority of the cases presently referred to. The defendant filed two pleas to the first count: First, that the alleged wrong was done in the execution of legal proceedings to widen and straighten the said public county road from Rocka Walking mills to Catchpenny; and, secondly, the general issue plea. The plaintiff joined issue upon the second plea and demurrer to the first. The court sustained the demurrer, whereupon the defendant filed the following amended plea:

"That on October 25, 1910, the county commissioners of Wicomico county, after notice, duly ratified finally the report of James M. Jones, Allison W. Gordy, and Horace M. Clarke, three disinterested freeholders of said Wicomico county, duly appointed by the county commissioners of Wicomico county, under pro

the third, fourth, and fifth replications, and issue was joined thereon. A demurrer was filed and sustained to the second replication. The result of the pleadings was to raise the following issues in the case: First, an issue of fact under the first count; secondly, an issue of fact under the amended plea; thirdly, an issue upon the disqualification of the examiners; fourthly, an issue of tender or payment of damages to the plaintiff for the property taken; and, fifthly, an issue of law as to the constitutionality of section 128 of the act of 1904.

Assuming that the county commissioners had jurisdiction in the premises, it would seem clear that the third issue was improper, and should not have been submitted to the jury; it was likewise improper to have presented an issue of law, namely, the constitutionality of section 128 of the act of 1904. The case proceeded to trial, and the plaintiff offered evidence tending to prove the injuries alleged in the declaration, and also the extent of those injuries. The defendant then called Horace M. Clarke, one of the examiners, and the road engineer of Wicomico county, and proved by him the quantity of land taken, and put in evidence the report of the examiners, above referred to, and closed its case. The plaintiff submitted six prayers, all of which were refused. The first prayer is based upon the proposition that the plaintiff was entitled to recover for injuries done to his property, including injury to his strawberry patch and other crops, not embraced in the condemnation proceedings and not necessary to the execution of said proceedings. The second told the jury that if they found that there was no payment or tender of payment to the plaintiff for the land condemned, then their verdict should be for the plaintiff, "and in estimating the damages they may take into consideration all the damage of every nature which may have directly resulted from the widening and straightening of said road." The third prayer was similar to the first, but concluded as to the damages

fourth presented the question as to the disqualification of one of the examiners, and the fifth asserted that the condemnation was null and void if the commissioners did not "follow strictly the statutory provisions." The sixth prayer was as follows:

"The plaintiff prays the court to instruct the jury that if they shall find for the plaintiff under the fourth and fifth prayers of the plaintiff, then in estimating the damage they shall take into consideration all the damage and injury which the plaintiff sustained by reason of the taking of said land by the defendant, and the injury to the trees and the loss and damage sustained by the cutting down and removal of said trees, and the loss and damage sustained by the plaintiff by reason of the injury to the strawberry beds and other grow ing crops of the plaintiff."

been taken by way of appeal from the proceedings of the commissioners; but to permit time, and thus defeat the whole of the proceedsuch an objection as this to prevail at this ings upon this narrow ground, is a proposition unsupported by sound principle or by authority. It is a collateral attack upon a proceeding which has been completed according to the forms of law. There is no more reason why this want of qualification should, when shown at this stage of the proceeding, invalidate it all, than there is why the discovery, after a judgment and after that judgment has passed beyond the control of the court, that one of the jurors was disqualified should make absolutely void the verdict and judgment. It is only one of those cases frequently occurring in the administration of the law, in which it is better that errors not pointed out at the proper time should be disregarded than that, by attempts to correct them, evils much worse should follow than those incident to the error."

[1-3] If the case was entitled to go to the jury, we think the court should have granted In Jenkins v. Riggs, 100 Md. 427, 59 Atl. the first and third prayers in connection 758, in which the proceedings of the county with each other. If the county commission-commissioners of Baltimore county in the ers had jurisdiction in the premises, the opening of certain roads were attacked in a fourth and fifth prayers were properly re- court of equity the court said: fused for the reason that the facts submitted

"If the county commissioners acted within the other matters alleged in the bill were subtheir jurisdiction in reference to these roads ject to their determination, and mere errors made by them, or irregularities in their proceedings, were reviewable only upon appeal taken, as provided for in the statute to the cir cuit court for Baltimore county, and do not form a proper foundation for a bill in equity. Greenland v. County Commissioners, 68 Md. 62 [11 Atl. 5811; Gaither v. Watkins, 66 Md. Union Mining Co., 61 Md. 548." 581 [8 Atl. 464]; County Commissioners v.

by those prayers were not open to inquiry in this case but should have been availed of by a direct appeal from the action of the commissioners. The second and sixth prayers were defective in not laying down a definite rule to guide the jury in estimating the damages. It is a perfectly well-settled principle of law that where the proceedings of a court are collaterally attacked and it appears on their face that the subject-matter [4] The act of 1904, chapter 583, under and the parties were within the jurisdiction which the proceedings in this case were takof the court they are not impeachable for en, provided for the return of the examiners mere errors or irregularities that may be ap- to the commissioners and for an opportunity parent. Such errors and irregularities must for all persons interested to object thereto, be corrected by some direct proceeding, ei- and it gave all such persons who felt agther in the same court to set them aside, or an grieved by the decision of the county commisappeal. If, however, there be a total want of sioners a right to appeal therefrom to the jurisdiction either of the parties or the sub-circuit court. There must be a ratification ject-matter, the proceedings are void and can confer no right, and will be rejected, though

by the commissioners of the action of the examiners, or a judgment by a court of law the objection to them be taken in a collateral proceeding. This principle applies likewise upon appeal and payment and tender of the to condemnation proceedings. In Huling et his rights are concluded, or title vested in damages sustained by the landowner before al. v. Kaw Valley Ry. & Improvement Co., the condemning corporation. The amended 130 U. S. 559, 9 Sup. Ct. 603, 32 L. Ed. 1045, plea, which set up the condemnation proceedJustice Miller, discussing a collateral attack ings as a part of the suit, alleged that the upon condemnation proceedings upon the report of the examiners had been “duly ratiground that one of the commissioners ap-fied finally" by the county commissioners. pointed to locate a railroad and assess dam- But the record shows no ratification of the ages for land taken was disqualified, said: report. It merely discloses the appointment of the examiners and their proceedings, upon which no action appears to have been taken by the commissioners, except the publication of the notice, above transcribed, that the report of the examiners would be taken up for

"The plaintiffs cannot recover in the present action without a holding in this collateral proceeding that all that was done by those commissioners is void by reason of this want of qualification in one of their number. The proper time for these plaintiffs to have taken this objection to Mr. Wood as a commissioner was either at the time of his appointment, or at the time he proceeded to act as commissioner. If it be objected that they could not be supposed to have any notice of the application for the appointment of these commissioners, and of the time and place when the judge would act on that application, the law presumes that they had notice, and might have attended at the time the commissioners entered upon their duties. If this objection had been then taken,

final ratification on October 25, 1910. There is nothing in the report to show that the defendant acquired any title or interest in the land taken, and, therefore, in the construction of a road upon the land of the plaintiff the defendant must be treated as a wrongdoer. But had the report of the examiners been finally ratified, as alleged in

would have been entitled to recover for in- | juries done to his property outside the boundaries of the land actually taken.

"The authorities undoubtedly hold that the assessment of damages will be presumed to include all damages which arise from constructing the works in a reasonable and proper manner, having regard to the efficiency of the works on the one hand and the interest of the landowner on the other. Where a subsequent claim for damages is made, arising from the construction of works, the question will be whether the works have been constructed in a proper manner, and whether the damage necessarily results from the works as so constructed. If

these questions are answered in the affirmative,
then the damages complained of will be pre-
sumed to have been considered in estimating
the damages, and no further recovery can be
had. If they are answered in the negative,
then a recovery can be had in an appropriate
common-law action.
The rights of the
party condemning are confined to the land tak-
en, and if any damages are done to adjoining
lands by blasting, by occupation, or encroach-
ments, or by using it as a roadway, a recovery
may be had." Lewis on Eminent Domain, 88
567, 573.

Such damages are not included in the award of compensation.

The defendant has appropriated permanently a portion of the plaintiff's property upon which was growing certain trees described in the evidence, and in addition thereto the plaintiff offered evidence tending to show other injuries not of a permanent character. In cases of tort "the court must decide and instruct the jury in respect to what elements and within what limits damages may be estimated in the particular action." B. & O. R. R. Co. v. Carr, 71 Md. 143, 17 Atl. 1052; Western Maryland R. R. Co. v. Martin, 110 Md. 554, 73 Atl. 267. The rule of damages to be applied in cases of this kind is stated in Redemptorists v. Wenig, 79 Md. 348, 29 Atl. 667. It follows that the judgment must be reversed and a new trial awarded. Judgment reversed, and new trial awarded, the appellee to pay the costs.

(123 Md. 161)

NOVAK V. TRUSTEES OF ORPHANS'
HOME IN BALTIMORE CITY
et al. (No. 36.)

(Court of Appeals of Maryland.

1914.)

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3. PERPETUITIES (§ 8*)—Restraint on PowER OF ALIENATION.

A devise to a corporation for a charitable use, which permits the leasing of the property, but forbids its sale, is void as creating a perpetuity.

[Ed. Note.-For other cases, see Perpetuities, Cent. Dig. 88 57-66; Dec. Dig. § 8.*1 4. CHARITIES (§ 36*) - DEVISES - CONSTRUCTION-USE OF PROPERTY "ESTABLISH."

In a devise to a corporation of which the testator had been an incorporator, and which was already conducting a school, for the purpose of establishing a school, the word "establish" will be held to mean, not to found or bring into being, which is its most common meaning but to place on a firm basis, since that was the manifest intention of the testator, and such intent will always be given effect by the courts, if possible, without doing violence to legal principles or the language used.

[Ed. Note. For other cases, see Charities, Cent. Dig. § 65; Dec. Dig. § 36.*

vol. 3, pp. 2469-2473.]
For other definitions, see Words and Phrases,

5. WILLS (§ 852*) - VALIDITY
CLAUSE.

- RESIDUARY

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[Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 2167, 2168; Dec. Dig. § 852.*] 6. VENDOR AND PURCHASER ( 131*)—TITLE

of Vendor-SUFFICIENCY-ADVERSE POSSESSION.

Exclusive, open, continuous, adverse possession for 41 years by devisees under void devises gives valid title to the devisees, so that they may maintain specific performance to compel a purchaser to carry out his contract to purchase.

[Ed. Note. For other cases, see Vendor and Purchaser, Cent. Dig. § 247; Dec. Dig. § 131.*] 7. DESCENT AND DISTRIBUTION (8 71*)-FAILURE OF HEIRS PRESUMPTION - ADVERSE POSSESSION BY DEVISEES.

Where devisees under void devises in the March 19, will of a Catholic priest had been in possession for 41 years, during which time no heirs appeared to claim the property, it will nevertheless be presumed that the testator left heirs, whose rights were terminated by the adverse possession, and not that the property escheated to the state against which the adverse possession would give no title.

1. CHARITIES (§ 3*)-CHARITABLE DEVISESCERTAINTY-STATUTORY PROVISIONS.

Code Pub. Civ. Laws, art. 92 $ 328, providing that a devise for a charitable use shall not be void for uncertainty of devisees, where it provides for the formation of a corporation to administer the devise, and one is thereafter formed within 12 months of the death of the testator, does not validate a devise for such use, where the will did not direct the formation of the corporation, and the special act creating the corporation was enacted before the adoption of the act which was codified in that section.

[Ed. Note. For other cases, see Charities, Cent. Dig. § 3, 4; Dec. Dig. § 3.*]

2. CHARITIES (8 20*)-BEQUESTS-CONSTRUC

TION.

[Ed. Note.-For other cases, see Descent and Distribution, Cent. Dig. §§ 229-236; Dec. Dig. § 71.*]

Appeal from Circuit Court of Baltimore City; Henry Duffy, Judge.

"To be officially reported."

Bill for specific performance by the Trustees of the Orphans' Home in Baltimore City and others against Frank Novak. Decree

A bequest for the purpose of establishing for the complainants, and defendant appeals. a children's aid society, made to a society in- Affirmed.

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