57 Md. 67 | Md. | 1881
delivered the opinion of the Court.
This is an amicable bill filed by the appellee against the appellants for a specific performance of a contract of purchase of certain real estate in the City of Baltimore. The question presented is as to the sufficiency of the title offered by the vendor, and declined by the vendee; and this question depends upon the construction of two deeds ; the first, from William Key Howard to Charles Howard, dated 6th day of May, 1854, and the second, from William Key Howard and Agnes, his wife, to Charles Howard, dated the 8th of December, 1855.
By the first of these deeds, the estate was granted and conveyed to Charles Howard, his heirs and assigns forever, and, in the habendum of the deed, it was declared to be to him, his heirs and assigns forever, to his and their proper use and behoof, in trust, nevertheless for the uses and purposes therein expressed — that is to say: for the wife, Agnes, of William Key Howard, the grantor, for her life, and, in case the husband should survive the
By the second deed another piece of property was granted, and the uses and trusts declared were the same as in the former deed ; the only difference being, that in the last deed executed, the estate was simply granted to Charles Howard, his heirs and assigns forever, without the additional words contained in the former deed, “to his and their proper use and behoof,” following the words of limitation.
Mrs. Agnes Howard, the wife, died in 1857, leaving an infant child surviving her, hut which died a short time thereafter, while still an infant. These events occurring, there was a failure of the limitations contained in the deeds, except those to the husband for life, with power of appointment by will, to such persons as he might think proper, and, in default of such appointment, to his right heirs.
In this state of case, in 1859, William Key Howard filed a bill in equity, in the Circuit Court for Baltimore City, against Charles Howard, the only party defendant, to have the trusts under the deeds broken up and surrendered, and to have the legal estate in the property, embraced by both deeds, re-conveyed to him, free and discharged of all the trusts declared in those deeds. And by the decree that was passed, Charles Howard was authorized and required to re-convey to William Key
Subsequently, William Key Howard conveyed the property, or nearly all of it, by deed to Mrs. Catharine E. Lee, in fee simple, with covenant of general warranty and for further assurance, and also with covenant against all or any attempt to execute the power of appointment contained in the deeds of trust. The appellee purchased the right and estate of Mrs. Lee, from those holding the estate for her benefit, and it is the title thus acquired that is now made the subject of question in this case.
There are two questions involved: 1st. Whether, by the terms of the deeds of trust, the limitation to William Key Howard for life, and in default of children or descendants of himself and wife, and of the appointments provided for to his right heirs, lie took an estate in fee, either legal or equitable? and, 2nd, Whether, by operation of the decree, and the deed made in pursuance thereof, and the subsequent deed to Mrs. Lee, the power of appointment by will was extinguished?
In neither of these questions do we perceive any room for serious doubt as to the decision required to he made, ypoh settled principle and by force of direct authority.
1. As to the first question: The deeds of trust express 3 money consideration, and profess to be made thereon, though the amounts are merely nominal. The deeds therefore, containing appropriate terms, are to be treated as deeds of bargain and sale. Matthews vs. Ward, 10 Gill & John., 449. And such being their character, the general principle applicable in respect to the operation
Nor would the result be different if the deed were treated as a feoffment, as has been suggested it should be. The legal estate or seisin would still be executed in Charles Howard; for it is perfectly well settled, that a conveyance by way of feoffment to A. and his heirs, to the use of him and his heirs, will give him the legal estate. It is true, the Statute does in express terms require that one person be seised to the use of another, to make the case in which the trust or use to that other shall be transferred into possession by the Statute. But, notwithstanding the words of the Statute, to use the language of Mr. Sugden, “ there are several cases in which it vests the possession in the very person in whom the seisin is vested: the strict words of the Act, in these instances, appear to have given way to the intention of the parties; and at this day a limitation unto, and to the use of the same person, is considered so clearly to vest the legal estate in him, that an, express declaration, that he should stand seised to the use of another, would only have an equitable operation.” Note 2, by Sugden, to Gilbert on Uses and Trusts, lop p, 369; Sammer’s Case, ¡3 Co. Hep., 56. In such case, “ it
It being clear, therefore, in any view of the case, that Charles Howard took the legal estate, in trust for the uses declared by the deeds, and the interest or estate in the property conferred upon William Key Howard being merely equitable, the question is, whether the estate for his life, to commence at the death of his wife, so united and coalesced with the ultimate limitation to his right heirs, as to constitute an equitable fee simple in him, notwithstanding the intervening power of appointment? Of this we can entertain no doubt.
The estate limited to him for life and that to his right heirs being both equitable, the rule in Shelley’s Case plainly applies. That rule applies to equitable as well as to legal estates ; and it is now well settled, that the mere power of appointment is wholly ineffective until the power be executed; and in the case of a limitation to one for life, with power of appointment, and, in default of appointment, to his right heirs, the remainder limited to the right heirs will become an executed fee in the taker for life, under the rule in Shelley’s Case, subject to be divested by the exercise of the power. In the case of Cunningham vs. Moody, 1 Ves , 174, Lord Hardwicke, in speaking of the vesting of estates before the execution of powers, said, “nor does the power of appointment make any alteration therein ; for the only effect thereof is that the fee which was vested was thereby subject to be divested, if the whole were appointed.” That case, and the principle of it, were fully adopted in the case of Doe vs. Martin, 4 Dunf. & East, 39, 64.
2. Now, as to the second question: — We entirely agree with the learned Judge below, that the powers of appoint
Upon the whole, we are clearly of opinion, that the decree, and the deed.made in pursuance thereof, re-invested William Key Howard with the full and complete legal estate, and absolute ownership and dominion, in and over the property in question, free, clear and discharged, of all trusts declared by the deeds; and that all powers of appointment therein declared have been completely and effectually extinguished. And as we perceive no valid objection to the title offered by the appellee to the appellants, and think with the Court below that the contract of purchase should be performed, we shall affirm the decree appealed from, with costs.
Decree affirmed, and cause remanded.