(111 A.)

2. Attachment 47(4)-Defendant not disposing of property in fraud of creditors. On motion to quash a writ of attachment, the note which first became due was paid evidence held to show that plaintiff was not dis-out of the proceeds of the sale of one of the posing of his property in fraud of creditors.

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whether the plaintiffs had good reason to believe that the defendant was defrauding his creditors, but whether such a fraud was in fact being committed. The material issue raised by the motion to quash the attachment is not determined by an inquiry as to the state and basis of the plaintiffs' belief in the truth of the charge they preferred, but by a consideration of the actual purpose and effect of the defendant's conduct. Collier v. Hanna, 71 Md. 253, 17 Atl. 1017; Dumay v. Sanchez, 71 Md. 508, 18 Atl. 890; Pitts Agr. Works v. Smelser, 87 Md. 493, 40 Atl. 56; Palmer v. Hughes, 84 Md. 652, 36 Atl. 431; Johnson v. Stockham, 89 Md. 358, 43 Atl. 920. Uopn the evidence in the case we can have no doubt that the transactions which excited the suspicions of the plaintiffs in reality involved simply a sale of a part of the defendant's property for the benefit of his creditors generally. A formal assignment for that purpose would not have afforded ground for the attachment (Strauss v. Rose, 59 Md. 525), and there is no reason to condemn as fraudulent the method actually employed to accomplish the same object. The ruling under review was therefore clearly correct.

(137 Md. 29)

In re WILMER. (No. 41.) (Court of Appeals of Maryland. June 18, 1920.)

1. Appeal and error 87 (2) Appeal lies from order of orphans' court denying increase of allowance to ward.

The discretion vested in the orphans' court by Code Pub. Gen. Laws, art. 93, § 165, declaring that the court shall ascertain the sum and education of the infant, in view of section to be annually expended in the maintenance 237, relating to removal of a guardian, is not an absolute and arbitrary discretion, but a sound legal discretion, and so an appeal will lie from order of the orphans' court refusing to increase the allowance of ward. 2. Guardian and ward 30 (2)—Maternal parent entitled to allowance where children live with her.

Under Code Pub. Gen. Laws, art. 93, § 180, a mother, acting as guardian of infant children, is entitled to allowance for their support, though they live with her, for the statute specifically allows her all such charges, expenses, and commissions as are allowed other guardians.

3. Guardian and ward

30(2)—Order refusing increase of allowances for ward without hearing evidence improper.

[4, 5] A motion to dismiss the appeal was filed, but it must be overruled. The theory Where a mother, guardian of infant daughof the motion is that the decision of the ters, petitioned for increase in their annual alcourt below, having been rendered upon an lowances, and the orphans' court, notwithstandissue of fact, is not a proper subject of ap- ing the general increase in living expenses and peal. It is argued that the judge before the recognized fact that the expense of educatwhom the motion to quash the attachment ing and maintaining children increases as they was tried should be regarded as having sar grow older, without allowing the guardian to as a jury for the determination of the ques-decreased the allowance, such action was an introduce any evidence, entered an order which tion of fact presented, and that his finding is abuse of discretion. therefore not reviewable. But it is well

settled in this state that a motion to quash is a summary proceeding triable before the court without the intervention of a jury. Upon an issue raised by plea a jury trial may

be invoked. A motion is addressed to the court, and is determined by it solely in that capacity. Ferrall v. Farnen, 67 Md. 76, 8 Atl. 819; Gittings v. Ockerme, 33 Md. 458; Union Trust Co. of N. J. v. Knabe, 122 Md.

584, 89 Atl. 1106. There can be no doubt as to the authority of this court to review a ruling made upon a motion to quash an attachment. In Howard v. Oppenheimer, 25 Md. 366, it was expressly held that the judgment below on such a motion was reviewable by the Court of Appeals "upon the proofs in the record," and this power has been exercised in numerous cases, including those we have cited. The evidence in the case has been authenticated by certificate of the trial judge and by agreement of the parties, and this is an approved method of verification. Coulbourn v. Fleming, 78 Md. 210, 27 Atl. 1041.

Judgment affirmed with costs.

4. Evidence 18-Judicial notice of recent increase of living expenses.

there was, between 1917 and 1920, a world-wide It is a matter of common knowledge that increase in living expenses.

5. Guardian and ward 30 (2)-Refusal to ratify expenditures to be made by guardian of ward held proper.

As if Code Pub. Gen. Laws, art. 93, § 165, requires the orphans' court, in its discretion, to ascertain the sum to be annually expended for the education of a ward, the refusal of the orphans' court to grant a petition by guardian of minors for an allowance in such amount as might be expended for their maintenance and education was proper, for the order as requested would deprive the court of its discretion.

Appeal from Orphans' Court, St. Mary's County.

In the matter of the petition of Nettie E. Wilmer, guardian of Margaret C. Greenwell and another, for an order increasing the annual allowance of wards. From the order entered petitioner appeals. Reversed, and cause remanded.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(111 A.)

Argued before BOYD, C. J., and BRISCOE, | reason that the allowance asked was unlimit THOMAS, PATTISON, URNER, STOCK- ed. From that order the present appeal was BRIDGE, ADKINS, and OFFUTT, JJ. L. Allison Wilmer, of Leonardtown (Wilmer & Ching, of Leonardtown, on the brief), for appellant.

OFFUTT, J. William F. Greenwell, a resident of St. Mary's county, died July 4, 1907, possessed of a considerable estate, consisting of real and personal property, and leaving to survive him four children, Margaret C. Greenwell, born November 26, 1903, Maria E. Greenwell, born May 7, 1905, Eleanor F. Greenwell, born June 30, 1906, and Wilhelmina F. Greenwell, born October 16, 1907, and a widow, the appellant, who in October, 1914, married L. Allison Wilmer.

taken. The appeal presents two questions: First, whether this court can review the order appealed from, and, if it can, then whether the lower court erred in its passage.

[1] Taking the questions in the order in this court does have the power to review the which they occur, we are of the opinion that order of the orphans' court. By section 165 of article 93, C. P. G. L., it is provided that in the administration of guardians' estates the orphans' court once in each year or of tener "shall ascertain at its discretion the amount of the sum to be annually expended in the maintenance and education of the infant." The discretion thus reposed in the court is not an arbitrary or a capricious discretion, but a sound judicial discretion to be The appellant was appointed one of the ad- exercised in accordance with established leministrators of his estate, and later with Fa- gal principles applied to the facts of the bian Gough, since deceased, was appointed particular case. In construing what is now guardian of her infant children and charged section 237 of the same article, which prowith the management of the estate which vides that, on the application of any infant they took as the heirs at law of their father, suggesting improper conduct or mental or her late husband. From time to time ac- physical unfitness in any guardian whatever, counts were filed by her as such guardian in the court may "inquire into the same, and, the orphans' court of St. Mary's county, in at its discretion, remove such guardian,

which allowances were made and ratified for various items of expense which she had incurred for the care, support, and education of the children, including annual allowance for their board, lodging, and clothes, and on February 9, 1920, she filed her "fourth guardian's account," and in connection with it submitted a form of order, providing for an increase in the annual allowance for the board and lodging of the children, and authorizing the appellant to make expenditures for their "schooling, school expenses, and proper and suitable clothing of each according to the needs and condition in life of the ward," and in connection with this account and order, on March 9, 1920, she filed a petition asking for the passage of an order in the form submitted and the approval of her fourth guardian's account, and on March 15 the orphans' court, without any testimony appearing to have been taken or any further proceedings having been had, refused to pass an order in the form submitted, but did pass an order approving, except as to a minor item, the account and limiting the expenditure to be made for the maintenance of the children in this language:

"That in lieu of the allowance heretofore made said guardian for maintenance, education, etc., of her said wards, she be allowed from the 1st day of January, 1920, the sum of $15 per month for the board and lodging, including laundry, lights, and fuel of each of the said wards, during the time the ward shall be and remain at her home at Leonardtown."

The order further provided that "the item for an additional sum for schooling, school expenses, and clothing" was rejected for the

*

* *" it was held that the expression "in their discretion" was not intended to and did not vest in the court an absolute and arbitrary discretion, but a "sound, legal discretion to be used conformably to the settled rules of law-to be exercised if the facts warrant it, to be withheld, if they do nottion is subject to review on appeal." Macand if erroneously exerted in either direcgill v. McEvoy, 85 Md. 291, 37 Atl. 219; Owen v. Pye, 115 Md. 407, 80 Atl. 1007. Nor is there any reason for any different construction of the phrase in the section now section 237. The exercise of the power thus under consideration than that given it in vested in the orphans' court may be of the most vital and permanent importance to the guardian as well as to the ward, and affect not only the present comfort and welfare of the ward but his entire future career and position as well. It was certainly never intended that a power so important and so grave in its possible consequences should not be subject to review upon appeal. Both reason and authority deny such a construction. There are cases in which such a "broad irreviewable" discretion is vested in the orphans' court, but the distinction between such cases and the case now under consideration is obvious and is clearly pointed out by Judge Thomas in Re Estate of Watts, 108 Md. 700, 71 Atl. 316. Such a discretion is given to the court only when it is inherent in the subjectmatter of the discretion, as in the case last cited, where the final conclusion of the court must be a matter of individual opinion based upon facts appearing upon its records or within the official knowledge of the court, or

where the character of the discretion is un-[and education as "she may eventually exmistakably defined by the statute conferring pend," according to their needs and condithe power. We are of the opinion, there- tion in life. The court refused to pass this fore, that the order appealed from may be re- order, but in lieu thereof passed the order viewed by this court. now before us.

[2-4] Coming, then, to the propriety of the The passage of this order was not warorder itself, it appears from the record that ranted by anything contained in the petition, it was passed upon the petition and the af- and there was nothing else before the court. fidavit thereto alone, without any testimony That there had been a world-wide increase having been adduced in support or consider- in the cost of living was common knowledge, ation of the averments thereof, and without and that the expense of maintaining and edany opportunity having been afforded the pe-ucating children increases as they grow older titioner to submit proof concerning them. is a matter of general experience, and while, But it is manifest that, whether such opportunity was afforded or not, such an order affecting the welfare and education of wards subject to the jurisdiction of the court ought not to have been passed without some inquiry into their situation and needs, and some investigation of the facts alleged in the petition filed by their guardian, who was in a position to know the requirements of her children and the expenses incident to their maintenance and support in their station of

life.

The petition presents a detailed history of the administration of the guardianship estate, much of which is immaterial to the consideration of the question now before the court. It is sufficient to say that in it is alleged that the income of the estate from March 27, 1917, to January 1, 1920, was $5,322.51, and that during the same period $2,750 was spent with the approval of the orphans' court for the maintenance of the four children; a detailed account of these receipts and disbursements being set forth in the fourth guardian's account filed with the petition. In addition to these items there were allowances for certain school expenses of the children, some minor allowances for traveling expenses, and expenses incident to the administration and the preservation and care of the estate. It is further stated that the annual allowance for the maintenance and support of the children was at first $300 a year, and that as they grew older this allowance was increased until in 1917 it was fixed at $1,000 a year. The needs of the children and the expenses incident to their education and training naturally increased with their years, and the court recognized that fact, as shown by its approval of the increases in the annual allowance for their support. In 1920 the general increase in living expenses, in connection with the desirability of sending the oldest child to a more expensive school, had so increased the expense of maintaining and educating the children that the allowance of $1,000 a year for that purpose was no longer adequate. Under the circumstances the court was asked to pass an order in the form referred to above, authorizing the petitioner to expend $25 per month for the board. lodging, and laundry of each child, and such sum for their clothing

therefore, there may have been reason for increasing it, if, therefore, the allowances previously made were proper, they should not have been reduced without sufficient reason. Whether such a reason existed could not well have been determined without some examination of the manner in which the children were maintained and the cost of such maintenance. The fact that the children lived in the home of their mother, which appears to have been given some weight by the court, could not affect the question, because the law provides where the mother is left the natural guardian of her infant children she is to be allowed "all such charges, expenses, and commissions as are or may be authorized by law in the case of other guardians." Article 93, § 180, C. P. G. L.

We are therefore of the opinion that the order should not have been passed until the court had informed itself by proper evidence of what, under all the circumstances of the case, was a reasonable and proper allowance for the support of the children; but, inasmuch as there is nothing before this court upon which to base an opinion as to what would have been proper allowances to be made, the case will be remanded in order that testimony may be taken, and such order then passed as may be warranted thereby.

The

[5] The refusal of the court to ratify in advance expenditures contemplated by the guardian for the clothing and school expenses of the wards was clearly proper. form of order proposed was entirely too broad. The court could not divest itself of the powers and duties imposed upon it by law, and yet that is just what it would have done had it ratified in advance any expenditures which the guardian in her discretion might deem proper to make for the clothing and school expenses of the wards, and the effect of such an order would have been to substitute the discretion of the guardian for the discretion which the law has placed in the court. The law requires the court at its discretion to "ascertain" the sum to be annually expended for the education of the ward. This language means that, after having before it the data and facts necessary to enable it to reach an intelligent conclusion, it is the duty of the court to ascertain and determine what sum the guardian may spend

(111 A.)

for the education of the ward, and this duty would not be discharged by permitting the guardian to determine in her discretion the amount to be allowed for such purpose.

For the reasons stated, the order appealed from will be reversed and the cause remanded to the orphans' court of St. Mary's county, that such further proceedings may be had there as will conform to the views herein expressed; the costs to be paid from the estate. Order reversed, and cause remanded for further proceedings.

(136 Md. 435)

RASCH v. SAFE DEPOSIT & TRUST CO. et al. (No. 11.)

(Court of Appeals of Maryland. June 16,
1920.)

1. Fixtures 31-Landlord and tenant
161-Restrictive covenants as to removal of
fixtures and personal property strictly con-
strued.

ment for plaintiffs, defendant appeals. Reversed, without new trial.

Argued before BOYD, C. J., and BRISCOE, THOMAS, PATTISON, URNER, STOCKBRIDGE, ADKINS, and OFFUTT, JJ.

Wilson J. Carroll, of Baltimore, for appellant.

Eli Frank, of Baltimore (Frank, Emory for & Beeuwkes, of Baltimore, on the brief), appellees.

PATTISON, J. This is an appeal from a judgment obtained by the appellees against the appellant in the superior court of Baltimore City.

The case was tried below upon an agreed statement of facts showing that on or about the 26th day of January, 1909, Mary F. Reitz, predecessor in title of the appellees herein, executed unto the appellant, John Rasch, individually, a lease of the premises, No. 227 Hanover street, in Baltimore City, for a term of five years. During the existence of this lease "The John Rasch Company" was incorporated. Its stock, with the exception of three shares, was held by John Rasch.

The general right of a tenant to remove fixtures and articles of personal property may be controlled by express contract; but covenants restricting, or claiming to restrict, the On the 17th day of March, 1914, a second tenant's ordinary right to remove such prop-lease was executed by Lewis M. Reitz and erty, are strictly construed, and cannot be extended by implication.

2. Landlord and tenant 152(1), 157(1-3)Elevator machinery installed by lessee not "improvements"; "alterations."

Supplying by lessee of premises for liquor and grocery business of hand elevator, and then electrically driven elevator, with necessary motor and machinery, in shaft already existing in building, held not "alterations" in the building or premises, nor "improvements," to make which the lessee under covenant to that effect had first to obtain the permission of the lessors, nor such an "improvement" as was to become the property of the lessors at expiration of

lease or termination of tenancy.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Alteration; Improvement.]

3. Fixtures 31-Corporation, assignee of lessee, not required to remove fixtures at expiration of tenancy.

Under Code Pub. Gen. Laws, art. 53, § 28, corporation, assignee of original lessee, and owner of fixtures under transfer from him, being the accepted tenant of the lessors, held not required to remove the fixtures at expiration of the tenancy under the original lease, or to reserve its rights therein by any provision inserted in the lease subsequently executed.

Appeal from Superior Court of Baltimore City; Carroll T. Bond, Judge.

Action by the Safe Deposit & Trust Company, trustee under the will of Harry O. Reitz, and others, against John Rasch, trading as John Rasch Company. From judg

Letitia F. Reitz, life tenants under the will of Harry C. Reitz, and the Safe Deposit & Trust Company as lessors, and the John Rasch Company, Inc., as lessee. This lease was for the term of five years, commencing on the 1st day of January, 1914, and terminating on the 1st day of January, 1919.

The John Rasch Company, Inc., was dissolved about May 1, 1918, and the stock and fixtures of said corporation were turned over to the defendant, John Rasch.

On the 31st day of December, 1918, a third lease was executed, in which the Safe Deposit & Trust Company of Baltimore, Trustee, is named as lessor, and John Rasch, trading as John Rasch Company, as lessee. The term of this lease began on the 31st day of January, 1919, and ended on the 31st day of March, 1919.

It appears from the record that the lease of January 26, 1909, has been lost, but it is agreed that it "contained substantially all the covenants and conditions contained in the lease dated the 17th day of March, 1914," a copy of which is found in the record.

The leased premises were leased to the lessee under the different leases for the sole purpose of "conducting therein a liquor and grocery business."

The lease of the 26th day of January, 1909, as well as the subsequent lease of the 17th day of March, 1914, contained the provision that the lessee "will not make any substantial alterations in said premises without the consent of the parties of the first part hereto

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