* revocation of wills (Code, art. 93, § 318) pro- | situated at the corner of Calvert and Madison vides, in substance, that: "No will * streets, Baltimore, and adjoins and communishall be revocable otherwise than by some cates on the south with and is physically a other will or codicil in writing, or other writ- part of Loyola College building, which said ing declaring the same unless the college building occupies (including said same be altered by some other will or codicil church) the entire block on the west side of in writing or other writing of the devisor Calvert street from Madison street to Monusigned as hereinbefore said in the presence of ment street; that the rector or president of two or more witnesses declaring the same." said college is by virtue of his office the recIt is true the instrument executed in 1905, tor or pastor of said church, the priests atwith all the formal requisites to constitute tached to said college being also attached to it a will under all the requirements of the said church, and that said church and college law, did not in terms revoke the will of 1899, are integral parts of the same management; but this is not necessary. A will may be just that the title to said property embracing the as effectively revoked by an inconsistent dis- church and college building is vested in the position of previously devised property. 30 Associated Professors of Loyola College, in Am. & Eng. Ency. (2d Ed.) p. 624; Colvin v. the city of Baltimore, a corporation duly inWarford, 20 Md. 357; Hopkins Un. v. Pinck- corporated under the laws of Maryland, and ney, 55 Md., 365; Joynes v. Hamilton, 98 that by an act of the General Assembly of Md. 665, 57 Atl. 25. By the will of 1899 Maryland (Laws of 1888, chapter 208) said Mrs. Gardner had given her entire estate corporation was duly authorized to take and of every description to her husband. By receive bequests on behalf of said church." the second instrument she gave all her rail- The act of 1888 referred to was one to enroad stock and all money in bank except large the powers of "the Associated Profess$300 (which was bequeathed to Mary Fin- ors of Loyola College in the City of Baltinegan) to her brother, and certain articles more," and as a portion of said enlarged powof personal jewelry to named friends. It ap- ers the corporation was specifically authorpears from the agreed statement of facts that ized for the purposes of said church to take, this comprised her entire estate at the time, hold, and receive any gift, grant, devise, or with the exception of a few pieces of furni- bequest of any property, real, personal, and ture and some minor articles of personal mixed, as fully and to the same extent as it adornment. The second paper evidently in- is authorized to do as an educational institutended to make a complete disposition of her tion. This legacy, therefore, presents clearly property no less than the first, and, the the case of misnomer of a legatee, and a mere legatees being entirely different persons, the misnomer will not operate to defeat the ininconsistency was as great as was possible. tent of a testatrix, where the beneficiary of But one conclusion can be reached, the will the intended bounty is perfectly certain. of 1899 was revoked by that of 1905, and was This legacy is analogous to the one contained therefore without any force or effect at the in the will of Melissa Baker to "the Woman's time of her death, and the learned judge be- College located at the City of Lynchburg," low was correct in his decree to this effect. which was held to be a valid bequest to "the The proceedings in the case make necessary trustees of the Randolph-Macon College," in a consideration of the various legacies con- Trinity Church v. Baker, 91 Md. 539, 46 Atl. tained in the will of 1905. 1020, and to the legacy which was sustained in Society v. Mitchell, 93 Md. 199, 48 Atl. 737, 53 L. R. A. 711, and to the devise which was held good in Doan v. Ascension Parish, 103 Md. 662, 64 Atl. 314, 7 L. R. A. (N. S.) 1119, 115 Am. St. Rep. 379. [2] The agreed statement shows that the articles given by the will to Marie McNeal had been actually given to her before the death of the testatrix, and therefore constituted no part of her estate at her death, and, so far as the legacy was concerned, it had been anticipated by the testatrix in a manner which had the same effect as an ademption. Gallagher v. Martin, 102 Md. 115, 62 Atl. 247. [3] The legacies to Stella McNeal and Mary A. Fenwick were specific legacies, and no reason exists why the articles given these ladies should not be delivered to them by the administrators and the circuit court was correct in so directing. By the decree in this case the legacy now being considered was sustained, and the administrators were directed to make distribution of it to the Associated Professors of Loyola College. In so decreeing either the court below had evidence before it which is not in the record, or else it fell into a partial error. The legacy was one manifestly intended for the benefit of the church known as St. Ignatius Church, not for the educational purposes [4, 5] The legacy of "my diamond rings and included within the powers of the Associatearrings to the church (St. Ignatius)," pre- ed Professors of Loyola College. It was sents a different question. So far as the ar- therefore a legacy of the class coming withticles are concerned the legacy is specific, but in the provisions of article 38 of the DeclaraSt. Ignatius Church is not a body corporate. tion of Rights; and, before it can be treated But the agreed statement of facts embodies as valid and effectual, it must receive the the following: "That St. Ignatius Church sanction of the General Assembly of the state a general legacy, with a certain fund pointed out for its payment," and that, in our view, is precisely the character of legacy here given to Mary Finnegan. It is a bequest of $300, to be paid out of the money remaining in bank, and the fact that there was not that amount remaining in bank at the time of her death, entitles her, in addition to the $12 which was in bank, to the payment of the balance out of the general assets belonging to the estate, if such general assets existed, and, if not, then pro rata with general legatees, if any. In the present case there were assets, which, as will be seen in a moment, were adequate, out of which to pay this balance, and this portion of the decree of the lower court which held the legacy as specific, and that it had been adeemed as to all above the sum of $12 must be reversed. sanction has ever been given, and there is nothing in the terms of the act of 1888 which can properly be construed as giving a sanction by anticipation to all devises or legacies which may thereafter be made to that corporation for its religious purposes. The will now under consideration was admitted to probate on the 4th of October, 1910, and there has been no meeting of the General Assembly since that date; but an executor is always entitled to a reasonable time in which to obtain legislative approval, where such sanction is required. When such approval is given, the legacy will become payable, and not before. Accordingly the decree below should be so far modified as to provide that the said bequest should be distributed to the Associated Professors of Loyola College upon the production to the executor of satisfactory evidence that the sanction of the General Assembly of the state had been given to it, and not before. [6, 7] With regard to the legacy to Mary Finnegan, it appears that at the time when Mrs. Gardner executed her will in 1905 she had on deposit to her credit a sum of money more than sufficient to have paid this legacy, but that between that time and the time of her death she had withdrawn from bank all, except the sum of $12, and the contention is that the legacy to Mary Finnegan was adeemed except as to said amount of $12. Whether the decree of the lower court was correct in this regard depends upon whether the legacy in question was or was not a specific legacy. If specific, the ruling was undoubtedly correct; on the other hand, if the legacy was demonstrative, it was incorrect. To reach a satisfactory determination in this regard, it is necessary to understand with precision the distinction between the different kinds of legacies. The language of the will, "I, Ellen Gardner, devise and bequeath to my brother, James McNeal, my railroad stock and all money remaining in bank, excepting the sum of $300, which I leave to Mary Finnegan," shows clearly that it was the purpose of the testatrix that the $300 bequeathed to Mary Finnegan was to be paid out of moneys remaining in bank, and, if the testatrix had at the time of her death $1,000 to her credit in bank, it would have been perfectly easy to discharge the legacy by paying over to her any $300, so to the credit of said testatrix, and not otherwise disposed of. The inclination of the courts is against "construing a legacy to be specific, because specific legacies are not liable to contribution in cases of a deficiency of assets, and inasmuch as the legacy fails entirely, if the testator parts with the thing or property specifically bequeathed" (Dryden v. Owings, 49 Md. 356; Kunkel v. MacGill, 56 Md. 120) and when, under the language of a will, a legacy is susceptible of being construed either as a specific or as a demonstrative legacy, courts lean to the construction the one under consideration was in the case which will regard it as demonstrative. A demonstrative legacy is defined in Kunkel v. MacGill, supra, as "a legacy in the nature of [8] The remaining legacy which this appeal brings before us for construction is as follows: "I, Ellen Gardner, devise and bequeath to my brother, James V. McNeal, my railroad stock and all money remaining in bank, excepting," etc. It appears from the agreed statement of facts that at the time when Mrs. Gardner executed her will she was the owner of 12 shares of the common stock of the Baltimore & Ohio Railroad Company, and 60 shares of the preferred stock of the same corporation, and that she had a cash balance in bank of $436.03. It further appears that the preferred stock was sold about October 1, 1909, by her brother and agent, Joshua V. McNeal, and the proceeds of that sale, together with some of the money in bank, reinvested in the purchase of bonds of various corporations. The bequest of the stock was undoubtedly a specific legacy. "Bonds and shares of stock of corporations may be specifically bequeathed, and the word “my," "in my possession," or "standing in my name," and other like expressions referring to the corpus of the fund, have generally been relied on as showing the intent of the testator that the bequest of such stock was specific. Kunkel v. MacGill, supra. The effect of the language of the testatrix is therefore to give to her brother, Joshua V. McNeal, the 12 shares of the common stock of the Baltimore & Ohio Railroad as a specific legacy. With regard to the 60 shares of preferred stock the same result by no means necessarily follows. [9] The nonexistence of property at the time of the death of a testatrix which has been specifically bequeathed by will is the familiar and almost typical form of ademption. This may result from a variety of causes, such as a gift during the lifetime of the testatrix, of the particular article which was the subject-matter of the legacy, its consumption, loss or sale, and in each of such instances the courts have held a legacy to be adeemed. A case of almost exact parallelism with of the Unitarian Society v. Tufts, 151 Mass. 76, 23 N. E. 1006, 7 L. R. A. 390, in which a testatrix by her will gave to a legatee cer Neal, and her half-brother, James H. McNeal. The decree of the circuit court will therefore be affirmed in part and reversed in part, and the case remanded, to the end that a decree may be entered in accordance with this opinion, and the administration of the estate completed accordingly. Decree affirmed in part and reversed in part, and case remanded, costs to be paid out of the estate. (117 Md. 38) tain railroad stocks, which she subsequently | distributable to her brother, Joshua V. Mcsold and reinvested the proceeds, and this was held to have adeemed the legacy; the court saying: "The general rule is that, when the chattel specifically bequeathed by a testator is sold or conveyed by him during his life, the legacy is adeemed." And in Weston v. Johnson, 48 Ind. 1, after the statement of the same rule, the court adds: "If the proceeds from such sale or disposition would be substituted and permitted to pass, the effect would be to convert a specific into a general legacy." The same principle will be found stated in Cowles v. Cowles, 56 Conn. 240, 13 Atl. 414, and has been recognized in this state in Brady v. Brady, 78 Md. 461, 28 Atl. 515. In that case the testator gave to his son certain cows and farming implements, with a 1. APPEAL AND ERROR ( 837*) - APPOINTlife estate in the same chattels to his widow. When the life estate terminated, none of the cows which were in the possession of the testator when he made the will were living, and the legacy of these animals was held to be adeemed, while in the case of the farming implements, a portion only of which had disappeared through use, the legacy was held to have been adeemed only in part. [10] Applying these cases to the one under consideration, we must hold the legacy of 12 shares of common stock to be valid, and that of the 60 shares of preferred stock to have been adeemed, and that the reinvestments which had been made cannot be substituted as a specific legacy in favor of Joshua V. McNeal. able to concur. JOYCE v. RAGAN. MENT OF RECEIVER-REVIEW. Dec. 6, Where the court on an ex parte order appointed a receiver of the estate of a decedent, the court on appeal may not consider an answer to the petition, praying for the appointment, subsequently filed by the party appealing. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3262-3278; Dec. Dig. § 837.*] 2. RECEIVERS (§ 35*)-APPOINTMENT-NOTICE. authorizing the court at any stage of any cause Code Pub. Gen. Laws 1904, art. 16, § 192, concerning property to pass such order as to it may seem fit as to the possession of property pendente lite, does not abolish the rules the court may not, without notice, appoint a governing the appointment of a receiver; and receiver of the real estate of a decedent on the application of a simple creditor, where the claim of the creditor and the allegation of the insufficiency of the personal estate have been denied by answer. [Ed. Note. For other cases, see Receivers, Cent. Dig. §§ 54–60; Dec. Dig. § 35.*] Appeal from Circuit Court No. 2 of Baltimore City; Henry D. Harlan, Judge. Petition by Elizabeth Ragan for the ap and remanded. Reversed Argued before BOYD, C. J., and BRISCOE, PEARCE, BURKE, THOMAS, PATTISON, URNER, and STOCKBRIDGE, JJ. D. C. Andre and Henry H. Dinneen, for appellant. Frank G. Turner, for appellee. It was earnestly argued that this change of investment was made by Joshua V. McNeal, the brother of the testatrix, without any special sanction from the testatrix, and it may be without her knowledge, and that by reason of these facts the legal result which would follow a sale of the property by the testatrix were avoided. In this view we are un-pointment of a receiver of the estate of Harriet Joyce, deceased. From an ex parte Whatever Mr. McNeal may have done was done as agent of Mrs. Gard-order appointing a receiver, Marcelina Joyce, ner, and his acts as such agent were practi- as administratrix of George William Joyce, cally ratified in advance when she delivered and in her own right appeals, to him the certificates of the preferred stock indorsed for transfer, and there is no suggestion or imputation that Mr. McNeal violated or in any way exceeded the powers conferred upon him, or that his acts in disposing of the stock for her, and otherwise reinvesting the proceeds were ever in any manner disavowed by her. The will of June 6, 1905, BURKE, J. Harriet Joyce died in the did not contain any residuary clause, and, city of Baltimore on the 5th day of Februunder the construction which we have felt ary, 1911, seised of the fee-simple property compelled to put upon it, it necessarily fol- known as No. 1060 Argyle avenue. She had lows that, as to a considerable portion of her made and executed a last will and testaestate, Mrs. Ellen M. Gardner died intestate. ment, by which, after giving $50 to the Aged That she had no intent to die thus intestate Men and Women Home of the Methodist is undoubtedly true, and in that respect again Episcopal Church, she devised and bequeaththe present case is in exact parallel with the ed all the rest and residue of her property case of Unitarian Society v. Tufts, supra. to her son, George William Joyce, whom But that fact cannot alter the legal result, she appointed the executor of her will. Her and the balance of her estate after the pay-son qualified as executor, but did nothing ment of specific and demonstrative legacies is further in connection with the settlement of the estate, and died on the 17th of March, who has survived him." On May 12, 1911, Elizabeth Ragan, the appellee, claiming to be a simple contract creditor of Harriet Joyce, filed a creditor's bill in circuit court No. 2 of Baltimore city, asking for the sale of the property at 1060 Argyle avenue, upon the ground that the personal estate of Harriet Joyce was insufficient to pay her debts. The bill alleged that John Joyce and William Joyce were halfbrothers, and Anna Addison was a half-sister of George William Joyce; and upon the claim that they were his heirs at law they were made defendants in the suit. Marcelina Joyce, in her own right and as the administratrix of her husband, and Richard C. Rose, d. b. n. c. t. a. of Harriet Joyce, were also made defendants. The following is a transcript of the account, verified by affidavit, which was filed with the bill: "Baltimore, April 17, 1911. "The Estate of Harriet Joyce, Deceased, to Elizabeth Ragan, Dr. To services as nurse and general To services as above from July 1, $ 40 00 285 00 $425 00" William Joyce, John Joyce, and Anna Addison answered the bill, and admitted that Harriett Joyce, in her lifetime, was indebted to the plaintiff in some amount, but in what amount they did not know; and they asserted that they were the only living heirs at law and next of kin of George William Joyee. They also admitted the insufficiency of the personal estate of Harriet Joyce to pay her debts. The answer of Marcelina Joyce, widow, in her right and as administratrix, denied that Harriet Joyce was indebted to the plaintiff as alleged in the bill. It denied that John Joyce, William Joyce, and Anna Addison were the heirs at law of Harriet Joyce, or George William Joyce, or that they were entitled to any part of her or his real or personal estate. It further averred "that the said real estate was devised by the said Harriet Joyce to her only son, George William Joyce, and that the said George William Joyce died intestate, seised and possessed thereof in fee simple, and left no descendant or kindred capable in law to take the said real estate from him, and that the same has, under the law in such case made and provided, passed to and devolved upon this respondent, Marcelina Joyce, his wife, 82 A.-63 The answer fur ther alleged that the personal estate belonging and due to the said Harriet Joyce and recoverable by her administrator was sufficient to satisfy all legal and valid claims against it. Richard C. Rose, administrator, did not answer; and nothing further was done in the case until August 10, 1911. On that day, the appellee filed a petition, verified by her affidavit, in which she referred to the bill which she had filed on May 12, 1911, but made no reference to the answer thereto of Marcelina Joyce. The following paragraphs of the petition are here set out: "Second. That, since the filing of the above bill, your petitioner has been served with a notice by the appeal tax court of Baltimore city; that the taxes on the fee-simple property, known as 1060 Argyle avenue, owned by Harriet Joyce, were in arrears; and that the same would be sold for the taxes, if the taxes thereon were not paid. "Third. That an administrator d. b. n. c. t. a. has been appointed by the orphans' court of Baltimore city, who has instituted suit to collect an insurance policy, amounting to $50; no further procedure having been taken by the administrator d. b. n. c. t. a. "Fourth. That your petitioner is informed that there are claimants to the residue of the estate of Harriet Joyce after the payment of the creditors. "Fifth. That, previous to the death of the said Harriet Joyce, your petitioner had paid rent on said property to and including February 1, 1911, for which she holds proper receipt. "Sixth. That, since the death of the said Harriet Joyce, your petitioner and her sister, Eleanor Ragan, have occupied that portion of said property, 1060 Argyle avenue, which they occupied previous to the death of the said Harriet Joyce; and that the rent which they have paid since the filing of the complaint in the above-entitled cause has been paid to Frank G. Turner, attorney, to be held by him for the party who may be entitled thereto, which said payments are held by him, subject to their right being established; the payments being as follows: June 6, 1911, to cash. July 17, 1911, to cash.. Total $12 00 12 00 $24 00 "Seventh. That your petitioner is informed and believes that it is to the interest of your petitioner and such other creditors as there may be of the said Harriet Joyce and the distributees of her estate that a receiver should be appointed to receive the rent and income of the property of which she was possessed at the time of her death, out of which should be paid all legal taxes, assessments, etc.; and that the property of the said Harriet Joyce, consisting as far as your petitioner is informed, solely of the property 1060 Argyle avenue (and an insur ance policy amounting to $50), should be sold, Maryland cases which state the principles and disposed of by a trustee appointed by this honorable court in accordance with such further order as may be properly passed by the judge of this honorable court." The prayer of the petition was for the appointment of a receiver to take charge of the property of Harriet Joyce, which consisted, so far as petitioner was informed, of the fee-simple property on Argyle avenue and an insurance policy, amounting to $50, and to collect the income from the property, and to hold and disburse the same under the direction of the court. [1] Upon this petition, without notice to any of the defendants, the court passed an order appointing Frank G. Turner receiver pendente lite. The appeal before us was taken from that order by Marcelina Joyce in her own right, and as administratrix of her husband, after having filed an answer to the petition; but this answer cannot be considered by us. [2] The record presents a case where the court, upon the ex parte petition of a simple contract creditor, whose claim was denied, and where the allegation of the insufficiency of the personal estate made in the bill was also denied, took possession of the real estate without notice to Marcelina Joyce, who had asserted her absolute ownership of the property, and, without notice to the administrator of Harriet Joyce, took from him the personal estate of said deceased and transferred its administration to the court of equity. It is quite evident, we think, that the attention of the learned judge who passed the order was not called to the answer of Marcelina Joyce, as that answer showed sufficient reasons why a receiver should not have been appointed without notice to her. applicable to the appointment of receivers and the circumstances under which a receiv er will be appointed without notice, and said: "It is well settled by all the adjudications of this court, and by the established equity practice in this state, that courts cannot be too cautious and careful in the exercise of a jurisdiction so summary in its character, and one which may deprive a person of his property without notice and without a hearing. To uphold an ex parte proceeding of this character would not only afford a convenient mode of depriving one of his property, but would work an injury that would be difficult to subsequently repair or remedy." This statement we regard as specially applicable to this case. The receiver in this case appears to have been appointed under section 192, art. 16, of the Code. That section provides that: "The court may, at any stage of any cause or matter concerning property, real or personal, on application, or of its own motion, pass such order as to it may seem fit, with regard to the possession of the same, pendente lite, or the receipt of the income thereof, on such terms preliminary thereto (as to security, etc.) as to it may seem just, subject to the same right to move for its discharge, and the same right of appeal as is given in the preceding section." This statute was considered by this court in Baker v. Baker, 108 Md. 269, 70 Atl. 418, 129 Am. St. Rep. 439, wherein it was held that "the statute did not mean to abolish the rules on the subject of the appointment of a receiver, which this court has adopted and followed for so many years." There was no allegation of fraud made in the petition, and no necessity shown why a receiver should be appointed without notice to the parties affected, and no reason whatever why the court should have assumed, as it did, the possession of the personal estate of Harriet Joyce. The order appealed from will be reversed, and the cause remanded. Order reversed, and cause remanded, with costs to the appellant above and below. In Uhl v. Dillon, 10 Md. 500, 69 Am. Dec. 172, where an injunction and receiver were asked for upon allegations much fuller and stronger than those contained in the petition in this case, Judge Bartol said: "No authority has been shown to this court, nor can any be produced, entitled to consideration, which sanctions the exercise of the high and extraordinary power of a court of chancery to interpose, by writ of injunction, in a case like the one before us, restraining a debtor in the enjoyment and power of disposition of his property. The appellees (the complainants below) are merely general (Supreme Court of Rhode Island. April 18, creditors of the appellant, who have not prosecuted their claim to judgment and execution, nor in any other manner acquired a lien upon the debtor's property, and were not entitled to the writ of injunction, nor to the appointment of receiver." This case was followed in Frederick County Bank v. Shafer, 87 Md. 54, 39 Atl. 320. In the Baltimore Skate Manufacturing Company v. Randall, 112 Md. 411, 76 Atl. 491, Judge Briscoe referred to a number of WHITE v. ALMY. 1912.) 1. EXECUTION (§ 158*)-STAY OF EXECUTION -STATUTORY AUTHORITY. Gen. Laws 1909, c. 303, § 3, authorizing any justice of the Supreme or superior court authorizes each of the justices to exercise his to stay on motion execution on any judgment, own individual discretion in granting or refusing a motion to stay, and a denial of a stay by one justice is no bar to the making of a of the two courts; and until execution is staylike application to any of the other justices ed, or until every justice has denied a stay, |