Donnelly v. Edelen

40 Md. 117 | Md. | 1874

Alvey, J.,

delivered the opinion of the Court.

Upon full examination of this case, we discover nothing in it that will justify a reversal of the decree appealed from. The cases of Tolson vs. Tolson, 8 Gill, 376, and Willett and Wife vs. Carroll, 13 Md., 459, would seem to be conclusive of the right asserted by the complainants. The will of the father provides, not only a home for his daughters, during their single lives, on the farm devised to the son, but for a reasonable and moderate support therefrom; and the devise to the son being subject to the condition of furnishing such home and reasonable support, that condition or proviso constitutes a charge on the farm. The defendant, as purchaser, can stand in no better position in reference to this charge than the son, the devisee; and as the right was enforcible against the farm while in the hands of the son, so it may be enforced against it in the hands of the defendant, the purchaser ; the latter taking the estate cum onere. And without entering at all into an investigation as to what would he a fair compensation for the loss of the home on the farm, simply as a local habitation or place of residence, the proof is abundant to show that the amounts decreed to he paid to the several complainants are entirely inadequate to afford even a reasonable and moderate supply of food and clothing, regard being had, in making the estimate, not only to the value and yield of the estate devised, hut to the condition and habits in life of the testator, and of his children, for whom the provision was made. And that the whole net income of the farm may he required to furnish this reasonable and moderate support, can make no difference. Neither the devisee, nor the defendant claiming under him, could or can rightfully appropriate any part of the net income from the farm, until the reasonable and moderate support of the single daughters of the testator be supplied. And if the net income from the farm he insufficient for this purpose, it is alike the misfortune of the complainants and the defendant.

The position of the defendant, that because one of the daughters has joined a religious association, and become a Sister of Charity, she has thereby abandoned her claim to the particular provision under her father’s will, is, we think, untenable. While she may not he entitled to compensation, during her stay in the sisterhood, in respect of her right to room and residence in the house on the farm, she is clearly entitled to the reasonable and moderate support from the farm, as provided by the will. This she has in nowise abandoned. And as to the other two single daughters, if they have been really hindered in and prevented from the reasonable enjoyment of a suitable portion of the house on the farm, as a place of residence, they are entitled to he compensated for such deprivation, according to the decision of the case of Willett and Wife vs. Carroll.

That the actual income from the farm, or what it ought to have been, by the usual and proper course of husbandry, was not too highly estimated, we think it clear from the evidence. And if the respective amounts decreed to he paid to the complainants be not paid according to the terms of the decree, the sale of the farm will be proper, as the result of default.

(Decided 10th April, 1874.)

Decree affirmed, and cause remanded.