68 A. 265 | Md. | 1907
This is an appeal from a judgment for the defendant in an action of ejectment brought by legatees to recover certain leasehold property specifically bequeathed to them, and tried before the Court without a jury.
The property in question was demised on January 21st, 1850, by William H. Cole to Hinson H. Cole, by deed duly executed, acknowledged, and recorded, for the term of ninety-nine years thereafter, renewable forever, in consideration of a yearly rent of $240, reserved in said deed, and the title to said leasehold property was traced by successive assignments to Edward Burns, who died seized thereof in April, 1862. The plaintiffs offered in evidence a certified copy of the will of Edward Burns, and of letters testamentary thereon granted by the Orphans' Court of Baltimore City to Charles Crean, the executor named therein, on May 6th, 1862. The bequest of this property is set out in the following clause of the will:
"After the payment of my just debts and the funeral expenses, I give and bequeath to Charles Crean, and Catherine his wife, my two two-story brick houses on the west side of Marsh Market Space in the city of Baltimore and known as Nos. 40 and 42. To hold the same for and during their natural lives, and to enjoy the rents and profits arising from the same, and immediately after the death of the survivor, then I give and bequeath the aforesaid houses unto the living issue of the aforesaid Charles and Catherine Crean share and share alike, absolutely forever."
The plaintiffs also offered in evidence the notice to creditors by the executor of Edward Burns, and a certified copy of the inventory returned by him to the Court May 10th, 1862, showing a total personal estate of $2,714.30, which included as a distinct item, the two two-story brick houses mentioned, with the lot on which they stood, subject to said ground rent, and valued in said inventory at $1,000. *517
They also offered in evidence a certified copy of the administration account of Charles Crean, executor of Edward Burns, passed June 30th, 1862. It appears from this account that the estate was not adequate, after the payment of debts, for the payment of the legacies in full, all of which were accordingly properly abated, and the account contains the following item relating to the bequest of these houses:
"Allowed this accountant for the following property bequeathed to him and Catherine, his wife, for and during their natural lives, and retained by them, viz: A lot of ground and the improvements thereon on the west side of Centre Market Space appraised at ............................. $1,000.
Less their proportion of deficiency, ....... 316.67 __________ $ 683.33"
Charles and Catherine Crean lived with Edward Burns sometime before his death, in that property, and continued to live there until 1873. Charles Crean died August 4th, 1884, and Catherine Crean died September 14th, 1889. At the death of Catherine, the survivor, there were six children representing her living issue by Charles Crean, of whom the plaintiffs are four, the other two living somewhere in the west, and not being parties to this suit.
One of the plaintiffs, Mrs. Kidd, testified that after the family removed from this property in 1873 they rented it out until dispossessed by a tax sale which occurred before her mother's death, but she could not fix the year, though she knew the defendant was in possession when her mother died in 1889, and she also testified that none of her brothers or sisters nor she herself ever paid any ground rent or taxes on the property, or received any income therefrom, nor anything from the proceeds of said tax sale; and Mrs. Thirlkel and Frederick J. Crean two of the other plaintiffs confirmed her statement.
Here the plaintiffs closed their case, whereupon the defendant offered in evidence one of the chancery records of the Circuit Court of Baltimore City and proposed to read therefrom part of the report of John H.B. Latrobe, surviving trustee *518 under the will of Frederick Bedemeyer, which report was made January 13th, 1879, for the purpose of showing "that the ground rent upon this property was sold for taxes, and the city was obliged to buy it in, no one being willing to bid the arrears, and the cestui que trust not being willing the trustee should pay them to regain possession of a property rendered comparatively worthless by depreciation of property in the neighborhood," and that the ground rent was sold for $300. To this offer the plaintiff objected, and without deciding thereon, the Court suggested to the defendant to offer a prayer directing a verdict for the defendant, intimating that in the opinion of the Court an administration d.b.n.c.t.a. was essential to pass title to the plaintiffs. The defendant thereupon offered a prayer that under the pleadings and evidence in the case there was no evidence legally sufficient to entitle the plaintiff to recover, which was granted, and to this ruling the single exception was taken.
The first and principal, question raised by this appeal, is whether it was necessary, in addition to the proof offered by the plaintiff, to show that the property in question was actually, in and by the administration account, of Charles Crean distributed to these legatees by the Orphans' Court.
If the property was so actually distributed to the plaintiffs, then the appellant contends the further question arises, whether after the plaintiffs had closed their case, and after the defendant had gone into his testimony, but before he had closedit, the Court could properly withdraw the case from its own consideration sitting as a jury.
The main question was argued fully and ably. and an elaborate brief was filed by the learned counsel for the appellee, which we have carefully read and considered, but we are unable to agree with its conclusions.
The contention of the appellee upon this point is stated with his accustomed vigor in the following passage extracted from his brief: "No legal title or right of possession can ever possibly vest in a legatee to a chattel real, under the Maryland law, until such chattel real has been, under the sanction of the *519
Orphans' Court, distributed to such legatee by either the executor of the testator, or his administrator de bonis nonc.t.a. Equally true and universally declared as Maryland law by this Court, is the principle of law to be hereafter fully considered and discussed in this brief, that assent by an executor to a bequeathed life estate in a chattel real, inures, so far as assent is involved, to the estate in remainder, butthat this assent, as full as it may be to both estates, neverdispenses with the absolute necessity under Maryland law, todistribute the chattel real to the remainderman under thesanction of the Orphans' Court, in order to vest the legal titlein said chattel real in such remainderman." For this proposition he relies upon the following seven cases. Alexander v.Stewart, 8 G. J. 246; Smith v. Doe,
The appellant relies upon two cases, viz: Kopp v. Herman,
We will first examine these two cases.
In Matthews v. Turner, a very short opinion was filed by JUDGE ROBINSON, speaking for the six Judges who heard the case, in which he said, "The main question in this appeal is whether in an action by legatees to recover certain leasehold property specifically bequeathed to them, it is necessary to prove in addition to the probate of the will, and the grant of letters testamentary, and the assent of the executor to the legacy, that the property was included in the inventory returned by the executors, and was distributed to the legatees by the order of the Orphans' Court." (Here we break the continuity of the opinion cited to note that the last sentence, deals with the precise thing declared by the argument of the appellee to be indispensable, viz: the distribution of the chattel real to the remainderman under the sanction of the Orphans' Court in order to vest in him the legal title). The Court then proceeds to say, "There ought not to be any difficulty in determining this question. Upon the death of the testator his entire personal *520 estate, including property specifically bequeathed, devolves upon the executor, to be administered by him for the benefit of creditors, and the payment of legacies, and the balance if any, to be distributed to the persons entitled under the statute of distributions. Strictly speaking the entire personal estate ought to be returned in the inventory to the Orphans' Court. But thetitle of a legatee to property specifically bequeathed does notdepend upon the inventory returned by the executor, nor does itnecessarily depend upon the orders of the Orphans' Court. By the will itself, the legatee gets an inchoate title, and when the debts are paid, and the executor assents to the delivery of the property to the legatees, the title of the latter is thereby perfected. Nothing more is necessary, and upon the title thus perfected, the legatee may maintain an action of ejectment if the property be leasehold, or an action of trover for the conversion of personal property." The Court therefore held there was no error in the ruling of the lower Court in excluding certified copies of the inventory and of the administration account in that case offered by the defendant for the purpose of showing that the property in question was not included in the inventory and hadnot been distributed to the plaintiffs through the Orphans'Court.
It is obvious that the distinction made in this concise opinion, is that inherently existing between the title of a legatee derived from the testator through the will, and that of the next of kin determined solely by the statute of distribution, and evidenced by the order of Court ascertaining who answers to that description. In all cases the assent of the executor to the delivery of the property is necessary for his protection against creditors of his testator, and against insufficiency of assets to pay all legacies in full, but in the case before us, that assent was given. In Williams on Executors, top page 1479, (6 Amer. Ed.) it is said, "If a term of years or other chattels be bequeathed to A for life, with remainder to B and the executor assents to A, such interest will enure to vest that of B; and econverso, for the particular estate and the remainder constitute but one estate." That much was *521
expressly admitted in the passage quoted from appellees brief, and it was also quoted in Kopp v. Herman,
That the Court meant in Matthew v. Turner, supra, precisely what JUDGE ROBINSON there said, we think is apparent *522
from what was said in Myers v. Forbes,
We will now refer briefly to the other cases cited by the appellee with the view of showing, why we do not regard them as irreconcilable with Matthews v. Turner, supra. The first of these is Alexander v. Stewart, 8 G. J. 227. There the testator devised the residue of his estate to Stewart and Morris in trust for his son Eaton for life with remainder to his children, and appointed Eaton his executor. Eaton passed his first and only administration account, showing in the language of the bill filed upon which the case was made, "that the residue of the estate then in his hands was equitably the *523 property of the said trustees for the trust established by the will of John Partridge." But there was no distribution or delivery to the trustees. Hence Mr. McMahon in his argument asked, "Has the executor fully administered?" and answers his own question, "No, he was ready to do it." Readiness to perform is not performance — and hence the Court in its opinion in that case says, "The executor had not completed the administration, not having paid all the legacies (though offering himself in his account ready to pay them) nor delivered over the property in his hands to the persons entitled thereto, without which, there could be no full administration."
In Smith v. Dennis,
It was of course clear upon all the cases that administrationd.b.n. was essential in that case.
In Neal v. Charlton,
In Foos v. Scarf,
We do not think it necessary to make any further reference toMyers v. Safe Deposit Company,
In Woelfel v. Evans,
In Drovers' Bank v. Hughes,
It is not possible to insure literal uniformity and perfect harmony in judicial decisions upon analogous questions presented under constantly varying facts, and we find no irreconcilable conflict between the cases we have perhaps too tediously attempted to review.
We cannot adopt the contention of the appellee that the lease in this case was ipso facto forfeited by the non-payment of the rent reserved, and that no re-entry was necessary for that purpose. Its language, we think, clearly imports that it was to be void, only on re-entry. We find nothing in conflict with this view, in Shaufelter v. Horner,
Mrs. Crean died in September, 1889, and the appellants are not therefore barred by limitation. Kopp v. Herman,
It appears from what we have already said in reference to the main point in the case, that we are of opinion this prayer could not have been properly granted at the close of the plaintiff's case, and so far therefore as this appeal is concerned it would not be necessary to notice the contention of the appellant that it was error to allow the prayer to be offered as it was in this case. But as the question might be under other circumstances of some importance in practice, we will briefly consider it.
It was argued in the appellee's brief that the report of the trustees in the chancery record offered in evidence, afforded proof of a re-entry, or what was equivalent thereto, but without inquiring into this suggestion, it will be sufficient to say, that as the objection to the evidence was not overruled, the record was not in evidence at all, and it cannot therefore be made the basis of any deduction whatever. And this consideration, we think, is decisive also of the question now under consideration.
It is true as argued by the appellant that a prayer of this character can only be offered either at the end of the plaintiff's case, or at the end of the whole case, and the reason for this as stated in State, use of Harvey v. B. O.R.R.,
In the present case no evidence for the defendant had been admitted. The offer of this prayer under the circumstances of this case, was equivalent to a withdrawal of the offer of the evidence, and to the closing of the case. It cannot be supposed that the learned Judge of the lower Court, if he had refused this prayer at that time, would have permitted the defendant to offer further testimony, and again to offer such prayer. We must assume that he regarded the offering of this prayer as the closing of the case, no evidence having been admitted for defendant, and the plaintiff therefore having no evidence to rebut, and this being so we must hold the prayer was offered at a proper stage of the case, but for the reasons already stated was erroneously granted at any stage of the case.
The judgment will be reversed and the cause be remanded for a new trial, the costs above and below to be paid by the appellee.
Reversed and remanded.