43 A. 863 | Md. | 1899
The bill was filed in this case by Anna and Sarah Godwin, adult children of Anna W. Godwin, to have a partition of the property allotted to her in the division of the estate of Daniel B. Banks, her father, and to have the will of said Banks construed, so far as it affected the interest of W. Frank Godwin, Jr., who died after the death of his mother, Anna W. Godwin. The infant children of Mrs. Godwin and the other heirs at law and next of kin of Daniel B. Banks, together with a trustee in insolvency of one of them, were made defendants. After the answers were filed and testimony taken, a decree was passed construing the will of Mr. Banks and appointing commissioners to make a partition of the property. By that decree it was determined that under the will the one-sixth interest of W. Frank Godwin, Jr., passed to the heirs at law and distributees of the testator, and the property was directed to be divided into six equal parts — one-sixth to each of the five surviving children of Mrs. Godwin, and the other sixth to said heirs at law and distributees. On appeal to this Court that decree was affirmed — the only questions considered, however, being the construction of the will and whether the trustee in insolvency took the interest of the insolvent in this property. The decree also provided for the partition of W. Frank Godwin's sixth interest, and after the decision of this Court the commissioners proceeded with the partition and duly reported their proceedings to the Court. The Godwins excepted to the report, and the exceptions having been overruled, and the final decree ratifying the report, and another directing the sale of the part of the sixth interest allotted to the Godwins, having been passed, appeals were taken by Sarah and Margaret Godwin, adults, and Alice Godwin, infant, by her next friend.
The exceptions urged before us are, (1) because the commissioners allotted to Margaret Godwin a property on Baltimore street, in the city of Baltimore, which it is alleged is old and difficult to rent, and hence the partition in this respect *681 was grossly unfair to her, and (2) because "Subdivision F" of the report was allotted to the five Godwin children as tenants in common, and "Subdivision L" was allotted to four other parties, and no ultimate or final partition in severally was made of the property mentioned in the subdivisions.
1. The total estate divided, after deducting certain sums for fees, costs, etc., amounted to $77,615.74, including $1,118.17 of cash, which the commissioners divided into six equal parts, valued at $12,933.95. The five shares allotted to the Godwin children are spoken of as Grand Divisions A, B, C, D and E, and the other sixth was divided into five parts, called Subdivisions F, G, H, K and L. Grand Division A was allotted to Margaret Godwin, and consists of this property on Baltimore street, which was valued at $11,500.00; a ground-rent valued at $1,043.48; four shares of Central R.R. Co. stock at $160.00, and cash $232.47. The testimony of the witnesses, taken on behalf of the exceptants, tends to show that the Baltimore street property spoken of has very greatly depreciated in value during the past sixteen years, and is still depreciating; that it is difficult to rent to advantage, and is sometimes without tenants. The three commissioners, who made the partition, were examined and their testimony not only shows familiarity with the values of real estate in Baltimore, but that they exercised great care in the division of the property. Indeed the valuations placed by them on the respective properties do not seem to be seriously questioned. This particular property, now being considered, is assessed for taxation at $14,000, and at the time the partition was made was yielding about ten per cent., gross income, on the valuation placed on it by the commissioners. Judging from the evidence in the record it is by no means certain that it cannot now be sold for more than it was valued at.
The prayer of the bill was that partition be made of the whole property into six equal parts, one of which to be allotted to each of the Godwins, and the remaining sixth to *682
be set apart as the share of W. Frank Godwin, Jr. It then asks for a construction of the will of Mr. Banks, and prays that if the executory devise spoken of be held valid, the one-sixth so set apart be sold and the net proceeds divided among the several parties entitled thereto. The adult defendants, by their answer, made no objection to the partition into six parts, but several of them alleged that it was impossible to tell whether the sixth part to be allotted as the Frank Godwin share, would be susceptible of partition until it was set apart, and therefore denied that it was not susceptible of partition. The infant defendants, through their respective guardians ad litem, filed the usual formal answers, excepting that the Godwins answered more fully as to the construction of the will. The commissioners, therefore, in this respect, not only acted in accordance with the decree and commission, directing them to divide the property into six equal parts, but in accordance with the prayer of the bill, and as consented to by all the adult defendants. It was, of course, necessary to allot the Baltimore street property to one of the six shares — which one was necessarily left to the discretion of the commissioners. In allotting the property to Margaret Godwin there is nothing from which we can assume or infer that the commissioners did not act fairly — indeed, it is not pretended that there was any evidence of prejudice, partiality or intentional unfairness of any kind by the commissioners in any of their allotments. But it is contended that they set apart this Baltimore street property to one of the Godwins instead of to the Frank Godwin share, because of the alleged error in the interlocutory decree directing that it should be divided into five parts, which would have been impossible if that property had been included in that sixth. It is true that the commissioners may have been influenced to some extent by that direction in the interlocutory decree, but of that we cannot be certain, for they may still have thought it best to assign it to one of the five Godwins. If the case was remanded to the commissioners for further action the *683
loss to the exceptants would probably be much greater on account of the costs than it will be under our decision of the case, even if we felt justified in doing that, of which we will speak later. We have so recently considered the duties of commissioners in making partitions, and the power the Court can properly exercise over their returns, that we will only refer to that case,Claude v. Handy,
2. According to the direction of the decree and the commission, the commissioners subdivided the Frank Godwin sixth into five parts, one of which was allotted to the five Godwin heirs, one to Margaret W. Dorsey, one to Andrew Banks, one to Harry L. Slingluff, and the other to Alice Maud Jacobi, Annie Lepley, William Lepley and Matthew Lepley. It is contended that that was erroneous, because there was no ultimate or final partition in severally of that sixth interest. It is undoubtedly true, as was said in Dugan et al. v. Mayor, etc., of Baltimore,
Although Section 26 of Art. 5 of the Code permits a review of previous orders on an appeal from a final decree or order, unless an appeal has been taken under section 25, it does not of course refer to previous orders that have been concurred in by the party appealing, under which parties acted without objection and incurred large costs. Although this Court held in Bull v.Pyle,
The infants were not only represented by their guardian adlitem, their father, but by able and competent solicitors, appointed by the Court for that purpose. These solicitors were cognizant of what was being done and the interlocutory decree was submitted to them before it was acted on by the Judge. If it appeared that they had inadvertently overlooked any provisions in the decree that would injuriously affect the infants, a Court of Equity might still protect the latter, but it is difficult to see how they can be materially injured, if at all. If the whole sixth, exclusive of the cash, instead of one-fifth of the sixth, was sold, it would certainly greatly increase the costs — possibly would cost nearly five times as much as the one-fifth would, as the commissions, the clerk's and auctioneer's fees would probably be nearly that much more, and the advertisement of the whole sixth would be much larger than for the one-fifth, if all the properties were properly described. But, in addition to that, there are other infants interested in this sixth, and if it be true that we must direct a sale of the whole sixth, at the instance of the appellants, because each tenant in common *688
is entitled to his share in severalty, why should we not require a sale of the whole property affected by the proceedings? For, as we have already seen, each had an undivided interest in the whole, and each had, according to the theory of the appellants, a right to have his or her interest in severalty, which was to be taken out of the whole, and not out of a sixth, set apart out of the entire property. With such possible results as those, we cannot reach the conclusion that it is for the interest of the Godwins, who are still infants, to set aside the action of the commissioners, for the reason assigned. As we said in Gittings
v. Worthington,
The decree overruling the exceptions to the return of the commissioners and ratifying and confirming said return will be affirmed.
We have had some difficulty in determining whether the decree for the sale of the property mentioned in "Subdivision F" was desired by the Godwins in the event of the other decree being affirmed, but we must act on what we find in the record. InGittings v. Worthington, supra, in speaking of property allotted to several co-tenants, it was said: "When the portion to which they are entitled collectively has been allotted to them, they can, by petition in this cause, obtain a redivision among themselves, according to their respective interests, or a sale of the whole of their allotment, and a division of the proceeds," etc., and this decree was passed, as we understand, on that authority. But we do not find in the record any evidence of a petition, or *689 application of any kind, from any of the Godwins to have "Subdivision F" sold. It may be that when they know our conclusions as to the other decree, they will not desire to sell the property, but may prefer to keep it and thus avoid the cost of sale and retain the investments. But however that may be, two of them are still infants and there should be a petition filed in proper form, alleging that the property thus allotted to them is not susceptible of partition, etc., and the infants ought to be made parties to that proceeding. It is true they are already in this cause, but not for such purpose as the sale of the property thus allotted to them. As there is nothing in the record to show that there was a proper application for the sale, and as the decree directing it is appealed from, there is nothing left for us to do but reverse it. We will direct that the parties to each side pay their own costs.
Decree ratifying and confirming the commissioners' returnaffirmed, and decree directing sale of property in "SubdivisionF" reversed, the parties to each side to pay their own costs.
(Decided June 22d 1899).