Dugan v. Hollins

13 Md. 149 | Md. | 1859

Eccleston, J.,

delivered the opinion of this court.

This bill was filed by Cumberland Dugan, on the 7th of July 1855, claiming a conveyance of a house and lot alleged to have been devised to him by his grand-father, Cumberland Dugan, senior, subject to a life-estate therein for Margaret Dugan the widow of the testator; she having died in June 1852. The property claimed is described, in the bill, as a lot of ground of about twenty-five feet front by sixty-five feet deep, situate on the west side of Market Space, in the city of Baltimore, with the house thereon, the same being the third house and lot in Cumberland Row, counting southwardly from Water street, now Lombard street; and which by the twenty-fifth section or item of the will of the testator, was devised to be conveyed to the complainant, when he should attain the age of twenty-one years. The bill alleging him then to be of that age.

It is denied, that the complainant has any right to insist üpon a conveyance of the property, or has any claim or title whatever to the house and lot. For it is contended that they were, by the 28th section of said will, (and subsequent to the 25th,) devised in trust for the use of the defendants, Cümberland Dugan Hollins, son of Cordelia, and Cumberland Dugan Hollins, son of Rebecca, to be conveyed to them when they should respectively attain the age of twenty-one years, by Isaac McKim, the trustee named in the will. But the said trustee having declined to act, the chancellor appointed in his place John Spear Smith, who, after the cestui que trusts became of age, executed to each of them a deed, for one undivided moiety of the said house and lot, in fee-simple.

The present defendants, Cumberland Dugan Hollins, son of Cordelia, and Cumberland Dugan Hollins, son of Rebecca, were the plaintiffs in the suit against Coonan, reported in 9 Gill, 62. That case, in form, was an action of assumpsit, to recover rent for the house now in dispute, but in reality was designed to obtain a decision upon the title to the property, under the will of Cumberland Dugan, senior. This is evident from the admission stated on page 66.

The case was decided upon the grounds, that the 25th and 28th sections of the will should be construed as operating upon the same property; that the 28th clause operated as an abrogation of the 25th clause, and therefore, the property in dispute was devised to the plaintiffs by the 28th clause or section.

It has been contended by the appellees’ counsel, that the decision in 9 Gill must operate as an estoppel upon the claim of the complainant in this suit. It is said, that although the complainant was a minor pending that suit, yet, in point of . fact, he was represented in the contest, through his trustee; that T. P. Scott, Esq., who, on the record appeared as counsel for Coonan, never was employed by him, but was employed by the said trustee. And, for the purpose of showing this to be so, a printed argument of Mr. Scott, in that case, has beeii read, which commences thus: “In the argument which I had the honor to present orally to the court in this case, on behalf of Cumberland Dugan, of Frederick* (under the tiame of Daniel Coonan, the tenant of the property.”)

As regards the effect or influence of the former decision iipoii the present case, it will be seen to be quite immaterial, whether it shall be considered as an estoppel, or ds a decision by the court of last resort* giving an interpretation to the clauses in the will of Cumberland Dugan* Sen.* in relation to the same property now in dispute* and where the same question arises* which was before decided.

The former judges all concurred in the opinion* that the 25th and 28th clauses of the will were to be considered as operating upon the same property. And in this conclusion we fully coincide.

Upon the question, whether the 28th clause should be regarded as abrogating the 25th, or whether the devisees mentioned in the two clauses should take concurrently, the members of the court were divided. Three of them held* that the 25th clause was abrogated by the 28th, and, therefore, the property in contest, was devised by the latter clause to the plaintiffs below. The two other judges decided, that the trustees named in the two clauses took concurrently, “each trustee taking a moiety of the property in dispute for his cestui que wse.”

The counsel for the present appellees insist, that the decision of the three judges was correct. But this is denied by the counsel for the appellant. They say:

“Although where two provisions of a will are totally irreconcilable, so that they cannot possibly stand together, and there is nothing in the context or general scope of the will to lead to a different conclusion, the last shall prevail* yet, if the same property is devised, in separate parts of the will, to two different persons, this is not to be considered as a case of irreconcilable repugnancy, but the devisees shall take concurrently.”

In Co. Litt., 112, b., it is said by Littleton: “If a man at divers times, makes divers testaments, and divers devises, &c., yet the last devise and will made by him shall stand and the others are void.” Commenting upon this Lord Coke says: “Here, by, &c., is to be understood as well devises of chattels real or personal, as of freehold and inheritance; also, that in one will, where there be divers devises of one thing, the last devise taketh place. Cum duo inter se pugnantiareperiuntur in testamento, ultimum ratum estP In note 1, on this subject, upon the same folio, appear the following remarks: “There is a great contrariety in the books, on the effect of two inconsistent devises in tire same will. Some hold with Lord Coke, that the second devise revokes the first. Plowd, 541. 3 Atk., 374. Others think, that both devises are void on account of the repugnancy. Ow., 84. But the opinion supported by the greatest number of authorities is, that the two devisees shall take in moieties. The authorities for and against Lord Coke’s opinion, are well collected and arranged, in a note in the English edition of Plowden, 541.”

It is undoubtedly true, that the correctness of the doctrine of Lord Coke, has been advocated by those, whose legal learning entitles them to great respect. It is equally true, however, that the opinion, stated in the above note, as having been sup ported by the greatest number of authorities, has been adopted by very distinguished names.

The construction of wills is often attended with much diffi culty, and perhaps there has rarely been more controversy or more conflict of authority, upon any subject, in relation to wills, or indeed in regard to any branch of the law, than that of which we have just been speaking.

The majority of the court decided, that the latter clause in the will abrogated the former. But the opinion does not state whether the decision was so made, simply because the two clauses gave the same property to different devisees, or, whether the court considered that the provisions in the will, rendered the two clauses so irreconcilably inconsistent as to prohibit the different devisees from taking concurrently, and, therefore, the last was a revocation of the first. The opinion merely announced, that the 25th clause was abrogated by the 28th, and thereby the property in dispute was devised to the plaintiffs.

On the part of the appellant it has been said, the former' decision was not given under such circumstances as can make it an estoppel upon him. As evidence of what the law is in such a case, the decision is conceded to be entitled to great respect. It is contended, however, that we are not prohibited from revising it, and if upon due consideration it is found to be erroneous, we not only may but ought to correct the error, by making a different decision in the present case.

In Hammond’s Lessee, vs. Inloes, 4 Md. Rep., 164, the counsel for the appellants urged the propriety- of revising and overruling the opinions of our predecessors, upon titles similar' to those which were then under examination; but, after the-most mature consideration, the former decisions were adhered-' to. And there it is said: “If, as a general rule, upon principles of judicial propriety, and in view of the importance of* having the law fixed and certain, a court respects its own decisions even in analogous cases, there would seem to be more reason for adhering to them where the facts are the same,though between different parties. ’ ’ There, it is true, the court concede, that cases have occurred, and may again occur, in-which they would feel themselves bound to withhold their assent to adjudged cases. But it is evident, from the whole-scope of the opinion, that the assent should only be withheld-where the former decisions were clearly erroneous. ,

Now, if in the case in 9 Gill, the majority of the court erred* at all, it was certainly upon a very doubtful question, to say the least of it. And we are not prepared to say, we are fully' convinced there was such manifest error in the decision as should require us to overrule it. The same property, the same will, and the same questions, arising upon similar facts, which were presented in the former case, are also before us in this. We therefore think the following quotation, from Hammond’s Lessee vs. Inloes, will constitute a very appropriate conclusion for us: “We have not been able to discover a sufficient rieason for making this an exception to-the almost uninterrupt©d practice of all courts, of receiving their own decisions as iof binding force.”

( Decided March 10th, 1859. )

The decree below will be aflirmed without costs in this court.

Decree affirmed.