55 Md. 301 | Md. | 1881
delivered the opinion of the Court.
The decree from which this appeal is taken determines that the leasehold property mentioned in the proceedings belongs to the heirs, distributees and legal representatives
1st. In February, 1848, Scarf conveyed by deed certain leasehold property on Howard Street in the City of Baltimore to Alex. G. Robinson, in trust for the sole and and separate use of his wife Ann Scarf “ for and during her natural life,” with power to receive the rents and profits thereof for her own use and benefit, or to sell and ■dispose of the same or any part thereof absolutely, “ so that neither the property nor the rents and profits or the pro-needs thereof, shall at any time be subject to the control of the said George W. Scarf, nor be in anywise liable for his debts,” and from and immediately after the death of the said Ann Scarf, then in trust, as to the said property ■or so much of the same as may remain undisposed of by her deed or contract for the use and behoof of her issue if any, and in the event of her death without issue, then to revert bach to the said George W. Scarf, his heirs or assigns.”
2nd. In October, 1850, Scarf purchased from Robert M. McLane, trustee, leasehold property on Pearl Street, and directed the trustee to convey, and united with him in conveying the same by deed to William R. Robinson in trust, for the sole and separate use of Ann Scarf, wife of the ■said George, “ for the term of her natural life without the let •or control of her present or of any future husband whom ■she may have, and if she should survive her present husband, then after his death with power to grant, assign, ■sell or dispose of said premises either by deed or xvill, but should she depart this life before the said George W. ■Scarf, then and in such case for the use of the said George. W. Scarf and his assigns.”
Srd. In August, 1851, Scarf purchased leasehold property on Harford Avenue from George B. Clarke, and
4th. In October, 1851, Scarf purchased another leasehold property on Boyd Street from Thomas M. Lanahan, and directed him to convey the same by deed (which was also duly executed) to William R. Robinson in trust “for the sole and separate use of Ann Scarf, wife of George W. Scarf, without the let or control of her present or of any future husband whom she may have, and if she should survive her present husband, then after his death with power to her to grant, assign, sell or dispose of the said premises either by deed or by will, and whether sole or covert, hut should she depart this life before the said George W. Scarf, then and in such case for the use of the said George W. Scarf, his executors, administrators and assigns.”
Scarf died in May, 1855, leaving a will executed on the third of that month by which he gave and bequeathed unto his wife Ann Scarf “ all the property ” he possessed “ in this world, that is to say, all houses, lots, leaseholds, rents, money, and every thing of any value, to the said Ann Scarf for her sole use and benefit duringher natural life, and to dispose of as she thinks best,” and appointed his said wife sole executrix of his will. Mrs. Scarf subsequently intermarried with James Foos, the appellant, and died in October, 18|7-|7', intestate, without ever having had issue by either marriage, and without ever having, sold or disposed of by deed, the property now in controversy. The parties claiming this property, are, on the one side, the appellant, the surviving husband, and on the other, the next of kin and heirs-at-law of George W. Scarf.
We think it very clear that by the deed of February, 1848, an equitable life estate onlywa,s conveyed to tbe wife with power to her to dispose of the property or any part of
It is equally clear that by the deeds of October, 1850, and August, 1851, only equitable life estates were conveyed to the wife with power to her, in case she survived her then husband, to dispose of the property after his death by deed or will, and it is not pretended that these powers have ever been executed to the extent of affecting the property now in controversy. So far, therefore, as these three deeds are concerned, life estates only were conveyed with powers of disposition superadded, and as the wife during her life never made any appointment or disposition of the property in favor of the appellant, it follows that upon her death, he ceased to have any interest therein. It is hardly necessary to add that the appellant acquired nothing by the deed of December, 1878, which he obtained from Clarke, for it sufficiently appears from the proof that the purchase money for the whole absolute interest in the property conveyed by Clarke’s deed of August, 1851, was paid by Scarf, and that that deed was made by his direction. After the execution of that deed Clarke had no further interest, legal or equitable, in the property, nor was there any resulting trust in his
In the case of Benesch vs. Clarke, 49 Md., 497, we decided in accordance- with all the authorities, that where an estate is given to a person generally or indefinitely with power of disposition, such gift carries the entire estate, and the devisee or legatee takes not a simple power, hut the property absolutely ; hut where the property is given to a person expressly for life, and there he annexed to such gift a power of disposition of the reversion, the rule is different; and in such case the first taker takes-but an estate for life with the power annexed; and if the person so taking fails to execute the power, the property goes where there is no gift over to the heir or next of kin of the testator, according to the nature of the property. Such is the rule as laid down hy Chancellor Kent in Jackson vs. Robins, 16 Johns., 588. It is perhaps more clearly and concisely stated by Mr. Preston thus : “ Grant that an express estate is limited, and a power of disposition either generally or in favor of particular persons is added, the person to whom the devise is made, will have merely the estate limited hy express words, and the right in point of power, and not of estate, of disposing of the remainder,” and as an instance of the application of the rule he cites as good law, a case very similar to the terms of the will before us : “ So a devise to one for life to dispose at his will and pleasure, gives an estate for life only ; for the words superadded to the limitation merely express an intention to authorize a power of alienation during that period for which an estate is devised in terms.” 2
This leaves for consideration and construction the deed of October, 1851, by which the Boyd street property was conveyed. In that deed ther.e is no express limitation of an equitable life estate to the wife, but the trust in her favor contains no words of limitation, and the deed was executed prior to the passage of the Conveyancing Act of 1856, ch. 154, and prior to the adoption of the Code which by Article 24, sec. 11, dispenses with the necessity of inserting words of inheritance in a deed in order to pass fee. It is true that before the enactment of these laws, the rule was not so universal and imperative as to require
We agree with the Court below, that the bill in this case is not open to the objection of multifariousness, but we think there should be an administration de bonis non on the estate of George W. Scarf, and that such administrator should be made a party to this suit before the decree for a sale is executed. The property is entirely leasehold, and if any interest therein after the death of his wife, reverted or fell back into his estate, such an administration is indispensably necessary in order to give a good title to the distributees. Alexander vs. Stewart, 8 G. & J., 226; and to the purchasers under this decree. We do not mean now definitely to determine the construction of either of these deeds with respect to the interests of any. of the parties, other than the appellant thereunder, for that question is not regularly presented by this appeal, which was taken by the appellant alone. All that we mean to decide is, that as the presence of the
Cause remanded.
