son against whom an application for a guard- | the petition of the person who claims to be ian has been made is thereby necessarily entitled to the allowance? We are unable to hindered and impeded in defending himself discover any. His petition presents the against it, and he may be, under the provi- whole matter to the judge of the probate sions of the statute, rendered utterly helpless court who will then deal with it, as to notice and defenseless in the premises. It was to of time and place of hearing, and other proafford a remedy for such condition that the ceedings as justice and equity seem to him to statute was enacted, and it should be con- require. "Probate procedure, in this state, strued, if permissible, to effectuate such should be conducted upon the rules of the remedy. broadest equity, whenever the provisions of statute do not conflict with that view. Substantial justice should be awarded by methods conducive to economy and dispatch, and without unnecessary circuity of action or prolixity in procedure." Ela v. Ela, 84 Me. 423-429, 24 Atl. 893, 895.

Where a particular construction of a statute would lead to an absurd consequence, it will be presumed that such was not the intention of the Legislature, and "such construction will be adopted as shall appear most reasonable and best suited to accomplish the objects of the statute." Com. v. Kimball, 24 Pick. (Mass.) 373. It would certainly lead to an absurd consequence to give to the statute in question a construction that the phrase "his reasonable expenses in defending himself against complaint" refers only to such expenses as the ward had paid, and that the guardian should be ordered to pay them, from the ward's estate, back to the ward himself. And it would be equally absurd to hold that the statute means that the guardian is to pay to the ward, who is incompetent, such expenses as he had reasonably incurred for his defense, but had not paid. On the other hand, we think the construction most reasonable and best suited to accomplish the manifest object of the statute is that the "reasonable expenses" which the judge of probate may allow, include all the expenses that have been reasonably incurred in defending the ward against the application for guardianship, and that such expenses, if allowed, are to be paid by the guardian from the ward's estate to the person found entitled to them. If such construction is not within the strict literal interpretation of the statute, it is, we believe, clearly within the intention of the statute, and fully effectuates the essential remedy which must have been the purpose of its framers to provide.

It only remains to consider if the procedure adopted in this case is permissible. We think it is. The statute is silent as to the procedure by which a claim for such an allowance may be presented to the judge of probate. Evidently it may be done through the petition of some one. But it is not to be expected that the ward would present such a petition, for his incompetency is the reason for the guardianship.

Neither does it seem reasonable that the guardian only should have authority to petition that such an allowance be made from the ward's estate. His trust rather requires that he should appear to defend the ward's estate against such a claim, at least, to insure its fullest investigation and proof.

What objection, then, can there be to the method of procedure adopted in this case,

It is the opinion of the court that the exceptions of both the appellant and the appellee should be overruled, but without costs for either, and that the case stand for further proceedings in the Supreme Court of Probate.

So ordered.

RUSSELL v. CARMAN et al.

(Court of Appeals of Maryland. Nov. 18, 1910.) 1. WITNESSES (§§ 159, 162*)-COMPETENCYTRANSACTIONS WITH DECEASED PERSONS.

incompetent to testify as to any transaction Under Code, art. 35, § 3, making a party with decedent or a party incompetent to testify, a grantor suing to set aside a deed executed to a deceased grantee on the ground of fraud of a third person is incompetent to testify as to conversations or transactions with the grantee personally, but is competent to testify to the false representations made by the third person who is alive and competent to testify.

[Ed. Note.-For other cases, see Witnesses, Cent. Dig. §§ 664-682, 701; Dec. Dig. §§ 159, 162.*]

2. TRIAL (§ 96*) — EVIDENCE - OBJECTIONS

SUFFICIENCY.

A motion to strike out all the testimony of a witness, a part of which is incompetent because relating to a transaction with a decedent, and a part of which is competent, is too broad, and is properly overruled because the court need not pick out the objectionable testimony, and exclude that alone.

[Ed. Note.-For other cases, see Trial, Cent. Dig. § 248; Dec. Dig. § 96.*] 3. DEEDS (§§ 211, 77*)-FRAUD-EVIDENCE.

A deed should not be set aside on the ground of false representations unless their making and falsity are clearly proved, and unless complainant has been injured thereby.

[Ed. Note.-For other cases, see Deeds, Cent. Dig. $$ 645, 209; Dec. Dig. §§ 211, 77.*] 4. DEEDS (§ 211*)—FRAUD-EVIDENCE-SUFFICIENCY.

Evidence held to show that a third person fraudulently represented to a grantor that the deed she signed was the will of another, and thereby induced execution of the deed justifying the court at the suit of the grantor to set it aside.

[Ed. Note. For other cases, see Deeds, Cent. Dig. § 645; Dec. Dig. § 211.*]

ness.

[Ed. Note. For other cases, see Evidence, Cent. Dig. § 2439; Dec. Dig. § 590.*]

5. EVIDENCE (8 590*) — WEIGHT-INTERESTED said deed, unless set aside for the fraud WITNESSES. The testimony of four reputable witnesses, practiced in procuring its execution. A copy two of whom are without interest and two of of said deed was filed as part of the bill, whom testify against their own interest, must and it appears from the recitals of that deed prevail over the testimony of one interested wit- that the property in question was conveyed to said Maria Louise Russel, Ann Elizabeth Russell, and Josephine A. Russell by two deeds from J. Hooper Edmondson, one dated January 16, 1903, and one dated February 24, 1903, duly recorded, and it appears in the evidence that Josephine died in 1904 and Maria Louise in 1907, leaving the plaintiff the sole surviving grantee under said deeds last mentioned.

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

Suit by Ann Elizabeth Russell against Nellie E. Carman and others. From a decree for defendants, complainant appeals.

and remanded.

Reversed

Argued before BOYD, C. J., and PEARCE, SCHMUCKER, BURKE, THOMAS, PATTISON, and URNER, JJ.

Robert P. Graham, for appellant. H. Wyman, for appellees.

Wm. R. Magers and Fannie D. Magers, two of the defendants, and also two of the four beneficiaries under the will of Maria Julius Louise Russell, filed separate answers, admitting the allegations that at the date of the execution of the deed of September 25, 1906, Ann Elizabeth Russell and Maria Louise Russell were seised as joint tenants of the property in question, and, as to the allegation of fraud in procuring its execution, their answers stated that "from their information they believed the charges of fraud to be true."

Mrs. McCrone answered, alleging that she had no knowledge of the joint tenancy mentioned in the bill, and neither denied nor admitted it. She averred that she knew Maria Louise Russell collected and received all the rents of this property during her life, and that she never knew of any interest of Ann Elizabeth in said property. She disclaimed any knowledge of the execution of the deed of September 25, 1906, but indignantly denied the imputation of fraud to Mrs. Carman.

PEARCE, J. The bill in this case was filed by the appellant, Ann Elizabeth Russell, praying that a deed executed by her, conveying certain real estate to her sister, Maria Louise Russell, since deceased, be set aside and annulled on the ground that its execution was procured by misrepresentation and fraud practiced upon her by her niece, Nellie E. Carman. The bill alleges that the plaintiff and her said sister, Maria Louise Russell, were on the date of the execution of said deed, September 25, 1906, seised and possessed as joint tenants, and not as tenants in common, of certain real estate and leasehold property in Baltimore city, and that she was induced to sign her name to a paper then presented to her by said Nellie E. Carman, who assured her that said paper was the will of her said sister, Maria Louise Russell, and that she had no knowledge of the contents of the paper or of its character until after the death of her said sister, in September, 1907. The bill further alleges that on October 2, 1907, said Nellie E. Carman filed in the orphans' court of Baltimore city a paper purporting to be the will of said Maria Louise Russell, which was admitted to probate, and in which said Maria Louise Russell devised and bequeathed all her estate to said Ann Elizabeth Russell for her life, and, after her death, to the defendants Wm. R. Magers, Fannie D. Magers, Ida A. McCrone. and Nellie E. Carman, children of the deceased sister of the testatrix, whose name was Mary R. Magers, and by which will said Nellie E. Carman was appointed executrix without bond, and was authorized upon the death of Ann Elizabeth Russell to sell all said property, and divide the proceeds among the parties last named above. The bill further alleged that said Maria Louise Russell was in bad health and of feeble mind, and that said deed and will would operate to deprive the plaintiff of the estate which she would take by survivorship on the death of her said sister in the property described in

Mrs. Carman answered, neither admitting nor denying the alleged joint tenancy, but denying that Maria Louise was of feeble mind, and averring that she was of sound and disposing mind when said will was executed and at all times. She averred that she collected all the rents from said property, and paid them over to Maria Louise as the owner of the property. She denied all fraud or misrepresentation as charged, and alleged that at the time said deed was executed it was read and explained to Ann Elizabeth, who knew and understood its contents and purpose.

The testimony covers 130 printed pages of the record, and involves many contradictions. It is conceded by all the parties that the disputed property originally belonged to Henry Fowble, an uncle of Josephine, Maria Louise, and Ann Elizabeth, and that it was left by his will to Josephine, Maria Louise, and their brother George Russell, who has since died, and whose widow holds her dower in his share. It also is established by the admission of Mrs. Carman upon cross-examina. tion that about six weeks after the execution of the will of Maria Louise, on July 31, 1906, Mrs. Carman found among the papers of

Maria Louise and Josephine told her that they had employed Mr. Graham to draw a deed, and that "it was all fixed, one for the other, and the longest liver would receive it all."

Ann Elizabeth a deed of this property from | to say anything about the will. On crossJosephine and Maria Louise to one J. Hoop- examination Miss Magers said her Aunts er Edmondson, and also a deed or deeds from him reconveying this property to them, and she testifies that she delivered these deeds at once to Ann Elizabeth and Mary Louise, both of whom declared they knew nothing up to that moment of the existence of such papers, and that both of them declared their purpose "to rectify it," and that the deed of September 25, 1906, was executed by Ann Elizabeth for the purpose of conveying any interest she might then or thereafter have in the property to Maria Louise.

Wm. R. Magers testified that before the death of his Aunt Josephine he came on from New York in 1903; "that Aunt Joe wanted her affairs fixed, and her whole mind was that whenever she or whoever died first, to have some kind of document drawn so that it wouldn't get into court; that he, with request, had Mr. Graham draw up the paper which was read and discussed to them, and which they signed and it was recorded, and that Aunt Joe was the head of the fam

Ann Elizabeth testified that, before Josephine's death in 1904, Josephine had a deed made by which this property was to go on Josephine's death to Maria Louise, and on her death to go to Ann Elizabeth. After Jo-ily, and attended to all the business." He sephine's death, Ann Elizabeth and Maria Louise lived with Mrs. Carman for a time, and during that period in 1906 she testified that Mrs. Carman took her to the office of some lawyer whom she did not know, and whose name she could not remember, to sign a paper which Mrs. Carman said was a will of Maria Louise; that the paper was not read by her, nor read or explained to her by any one, and that she signed her name, believing it to be her sister's will, though her sister had never said anything to her about a will. She said Mrs. Carman collected all the rents and paid them to Maria Louise during her life, and that since her death she had only received about two months' rent from Mrs. Carman, who said she was putting the rents in bank.

Miss Fannie Magers testified that on Thanksgiving day in November, 1906, Mrs. Carman visited her and her brother Wm. R. Magers at their residence in New York City, and that at that time Mrs. Carman said to her in her bedroom: "I have something to tell you. You know that will that Will drew up and Mr. Graham had made. It was no good, and I have had it changed, and I have had a will drawn, and I have been terribly worried over it, and I have come to explain it." And she said: "If my Aunt Elizabeth got the money in her possession, she knew what she would do with it, and she didn't want it disposed of in that way, and she said she had it fixed." Miss Magers asked her if Aunt Elizabeth knew it, and she said "she did not," and she said "she didn't want her to know it; that she would get excited over it." Miss Magers further testified that subsequent to the death of Maria Louise she went to her funeral in Baltimore, and the evening of the funeral Mrs. Carman and Mrs. McCrone called her in the next room, and said Ann Elizabeth "would receive the money from the rents and she wouldn't know the difference," and Miss Magers replied the will would be read to her aunt, "and she would be rewarded some way," and that

further testified that Mrs. Carman was at
his house in New York on Thanksgiving day
1906, that she came into the library in the
evening, and told him "that she had a paper
drawn up and had Aunt Elizabeth to sign
it, and that she had told Aunt Elizabeth 'it
was Aunt Lou's will she wanted her to sign;
*
that she did not read it to her-it
would just upset her and do no good-that
she did not tell him anything about the con-
tents of the paper, but asked him if he
thought she had done right, and that he,
knowing about the former documents that
were drawn up, replied that he presumed it
was all right." He further testified that
shortly after the death of Maria Louise he
went to Baltimore, and Mrs. Carman told
him Aunt Maria had left a will, and asked
him to open it, which he did and read it to
Aunt Elizabeth, Miss Magers, and Mrs. Car-
man; "that there were some hard things
said on both sides, especially by Mrs. Car
man, who said she had done it for the best,"
and that he knew nothing about the deed
from Ann Elizabeth to Maria Louise until
after the will was read, and then he and Mr.
Edmondson "went to the courthouse to get
our eyes opened" and saw the document
there; that Mrs. Carman said, "What dif-
ference will it make to Aunt Elizabeth, she
will get her money as long as she lived any-
way, and she thought she had done for the
best in having the will made." When the
general question was read to Mr. Magers at
the close of his examination, he said, "I
don't want to sign that yet. I want to look
over some memoranda I made when the will
was read." And then, after refreshing his
memory from those memoranda, he testified
further: "On October 1st the will was read,
and Mrs. Carman said to all in the room:
'It was none of your business if Louise did
make a will, and it was no use to tell you.
I didn't read the paper to Aunt Elizabeth,
as she would not understand it.' That is her
exact words that I copied."

Rev. Dr. Joel T. Rossiter, pastor of Maria

Elizabeth nursed her throughout several Aunt Elizabeth. That paper was a deed years of failing health; that she spoke to They told me so about 3 o'clock the same him about making her will before Mr. Ma- afternoon. I went upstairs, and they had gers went to New York; that she seemed read it. They both said positively and emworried that her sister had not shared in phatically that they did not know one thing their uncle's will, and that, after Mr. Ma- about it, and asked me to explain it to them." gers had moved to New York, she told him A moment later she said, when asked what that he "had had a paper drawn up by Ann Elizabeth did when the paper was handwhich as they died the estate should go to ed her, "she read it aloud to her sister because the living, and that whoever died last would her sister had no glasses strong enough to use. get the remainder, and that this arrangement At that time I did not know who the deed seemed to give her peace and satisfaction." was from. I went up there about 3 o'clock, Miss Annie Troll, who had known all the and then they told me about it. *** It parties all her life, testified that Maria Lou- was a deed from Maria Louise and Josephine ise told her, after she moved to Mrs. Car- to a man by the name of Edmondson. man's, "that the two sisters had arranged * ** After I told her exactly what the their affairs, and that their property was all thing meant, Maria Louise said she had nevto go to the longest liver." er seen the paper, and she would go herself to the orphans' court if Ann Elizabeth did not have it rectified, and Ann Elizabeth was very glad to have it rectified. Then

I went to Mr. Wyman, and he said Maria Louise insisted upon having her property in her own name, and Ann Elizabeth was perfectly willing to give back what did not be long to her." After giving this account of the one deed to Edmondson, on further crossexamination, she said she found another deed from Edmondson reconveying the property to her two aunts, "that the two were altogether," but she nowhere says that she gave this deed to either of her aunts, or told them anything about it, and she said, when speaking of the last-mentioned deed, "that both papers were together lying on the top of a box," though she had a moment before said the first-mentioned deed was "in a bag of waste papers." She also said that Ann Elizabeth declared "she had never been any where to sign any paper, and that no one had ever come to them"; but, when reminded by the appellant's counsel that she had said the deed was from Josephine and Maria Louise only to Edmondson (Ann Elizabeth up to that time having no interest in the property), she said Ann Elizabeth "declared that Maria Louise had never been anywhere to sign them, and there had never been any one to the house to sign them," but she did not say that Maria Louise denied she had signed the deed to Edmondson. It is certain, however, if disinterested and unimpeached testimony is to be allowed any weight whatever, that as a matter of fact Maria Louise did know that she had signed the deed to Edmondson, and that she fully understood the purpose of that deed and of the reconvey

Mrs. McCrone testified at considerable length principally about the mental characteristics and capacity of her aunts, but had no knowledge of the facts relating to the will and deed in question. It is proper to say that her testimony was marked by absolute fairness and impartiality, and evinced a high degree of intelligence. Mrs. Carman testified in chief that she went with Ann Elizabeth on September 25, 1906, to the office of Mr. Orem, a notary public; "that her Aunt Elizabeth, went of her own free will and the solicitation of her sister Maria Louise to deed back certain properties to Maria Louise so she could dispose of them as she saw fit; that she herself read the paper to her two aunts, and Ann Elizabeth read it herself; and that she signed it first on the wrong line, and then signed again." She denied that she told Ann Elizabeth the paper was her sister's will. She said Ann Elizabeth selected Mr. Orem from a list of notaries for the purpose of executing the deed, and that she understood fully what she was doing. She admitted that she had an interview with her brother Wm. R. Magers and her sister Fannie Magers on Thanksgiving day, 1906, at New York, but she utterly denied that she had told either of them anything they stated occurred at those interviews, and that all she told them was that Maria Louise had made a will. On cross-examination she testified that Mr. Wyman drew the will from "a digest" which she took him from her Aunt Maria. She said that, when this will was executed, her Aunt Maria knew nothing of the deed from them to Edmondson, nor of his reconveyance to them, and that her Aunt Maria believed Ann Elizabeth had no interest in the prop-ance by him to herself and to Josephine and erty, and that she herself discovered the true situation and communicated it to her two aunts. Her account of this discovery and of what followed is singular, to say the least. She says: "I went up on the third floor for an article I needed, and I found a paper. I opened it, and saw it did not belong to me. It was in a bag of waste paper, old letters they had torn up, and I took it

Ann Elizabeth, since Dr. Rossiter testified that Maria Louise told him that Mr. Magers had a paper drawn up, by which, as they died, the estate should go to the living, and that whoever died last would get the remainder, and that this arrangement gave her peace and satisfaction, and because Annie Troll testified that Maria Louise told her that "the two sisters had arranged their

longest liver." Ann Elizabeth testified that she testified to much not prohibited by the she knew this had been done, as her sisters told her so, but there is no occasion to dwell upon the testimony of an interested witness when the fact is established by disinterested witnesses. Mrs. Carman further testified not a transaction with her sister, but with that she went to see Mr. Wyman "to have some instrument prepared that would remove that trouble," and that he informed her "what would be necessary to fix it," and that she reported to Maria Louise, who told her to have it done.

Wm. H. Carman, the husband of Mrs. Car-ness, if they desired the questions to be passman, testified that Maria Louise told him they found these papers and Ann Elizabeth was going to have them transferred back to her, and that both the aunts said these papers had never been signed, and that the papers were a fraud, and that Ann Elizabeth was going to a notary to have them fixed.

The case is therefore reduced to the simple inquiry whether that false representation was made. Ann Elizabeth testifies it was made, and that she signed the deed believing Under section 3 of article 35 of the Code, it to be her sister's will. Mrs. Carman testithis witness was not wholly incompetent to fies it was not made, and that Ann Elizabeth testify, but was incompetent only "as to any knew and understood what she was signing. transaction had with, or statement made by The notary's testimony proves the execution the testator, intestate, ancestor or party so of the paper, but throws no light upon the alincompetent to testify, unless called by the leged false representation. Miss Elizabeth opposite party." Such portions of the tes- Carman testifies her Aunt Ann Elizabeth told timony of this witness as related to conversa- her she was going to sign a deed, but did not tions between herself and Maria Louise or say to whom or for what purpose. The testransactions with her personally were, of timony of Mrs. Carman's husband, Wm. H.