72 Md. 186 | Md. | 1890
delivered the opinion of the Court.
This action is brought by Mary E. Dodge, and Allen Dodge, her husband, against the administrators of Martha L. Berry, deceased, upon a bond or covenant executed under hand and seal by Martha L. Berry in her life
The declaration is upon the bond, and the pleas are, 1st. That Martha L. Berry, in her life-time, was never indebted as alleged; and, 2nd. That the said Martha L. Berry, in her life-time, never agreed as alleged. All errors of pleading were waived.
The facts of the case are undisputed; but as they are somewhat peculiar, it is necessary to state them, in order to a full understanding of the questions intended to be raised for decision.
It appears that Mrs. Dodge, the principal plaintiff, is a daughter of the late Philip T. Berry, who died in January, 1819, and is a niece of the late Horatio E. Berry, who died in May, 1883. Philip T. Berry left a will, which was duly admitted to probate, and he also left a family of children, consisting of seven, including Mrs. Dodge. His estate was not large, though sufficient to pay debts. By his will, (of which an extract only is contained in the record,) he devised to his daughter, Mrs. Dodge, part of lot No. 204, in Georgetown, D. C., 30 feet front on West street, 120 feet deep, with brick dwelling thereon, No. 93, with all its alley privileges, &c.; this house and lot to be used as a residence for Irel- and her husband, or to be rented; and all the net revenue therefrom, after paying taxes, insurance and repairs, for her use and control, and not subject to any debt or debts of her husband, now existing, or hereafter incurred ; and if she dies without issue, then the house,- lot and appurtenances to revert back to my estate, and the proceeds to be divided between my children herein named, share and share alike; otherwise to go to her heirs.” At the time of Philip T. Berry's death, his brother, Horatio E. Berry, held a mortgage on the lot or parcel of ground devised to Mrs. Dodge, and upon which mortgage there was a balance due, at that time,
“To Mrs. Mary E. Dodge, wife of Allen Dodge, and daughter of Philip T. Berry, the sum of $2000, and the balance due on the mortgage, payable by the estate of Philip T. Berry to my husband' and secured by the property on the south side of P. street, in the City of Georgetown, D. C. To Miss Martha V. Berry, and Miss Alice L. Berry, each the sum of $5000. To Miss Margaret A. Berry and Miss Marian Berry, each the sum of $3000; the four last named being daughters of Philip T. Berry. ” And to three other young ladies, kindred of Horatio E.
It appears that the bond, upon its execution, was entrusted to George W. Grafflin, with instruction to deliver it to the obligees or beneficiaries therein. But for some reason, not disclosed, Grafflin failed to carry out the instruction, and the existence of the bond was not made known to any of the obligees or beneficiaries until after the death of Mrs. Berry, and was not delivered by Grafflin until February, 1888, and then upon demand of counsel. But before this, that is to say, in February, 1884, upon the suggestion and request of Mr. Matthews, one of the executors of Philip T. Berry, and the counsel of Mrs. Dodge and her sisters, Mrs. Martha L. Berry executed and delivered to. Mr. Matthews, for the heirs of Philip T. Berry, a full release of the mortgage of the house and lot in Georgetown, devised to Mrs. Dodge by her father. After the death of Mrs. Berry, her administrators paid the $2000 to Mrs. Dodge, but declined to pay the balance due on the mortgage, for the reason, as they contend, that Mrs. Dodge had received the full benefit of the obligation to pay to her the balance due on the mortgage, in having her property released of the mortgage debt, and the debt cancelled, for which the property was liable.
At the conclusion of the evidence, the jury were instructed, at the instance of the plaintiffs, that under the pleadings and evidence, their verdict must be'for the plaintiffs for the amount of the balance due on the mortgage, to Avit, $1307.58, Avith interest from May 11th, 1884. The verdict Avas rendered accordingly, and from
It is contended by the plaintiffs that the release of the mortgage is not a gratification or discharge of the obligation to pay the balance due on the mortgage, the mortgage debt being due from the estate of the father of Mrs. Dodge, though a specific lien or charge upon the property devised to her. But in view of the facts of this case, we cannot accede to the correctness of the contention of the plaintiffs.
It is true, it is a well established general rule, that where a debtor has a portion of his real estate under mortgage, whether with or without covenant to pay, and the debt is the debt of such debtor originally or by adoption, and not a charge primarily affecting the estate, and he makes his will devising the mortgaged estate, (and there be no intention to the contrary either express or implied,) in such case, as between the devisee and the residuary legatee, though not to disappoint either general or specific legatees, the personal assets are the primary fund to be applied for the payment of the mortgage debt, in exoneration of the land. Howell vs. Price, 1 P. Wms., 291, 294, and Cox’s note; O’Neal vs. Mead, 1 P. Wms., 693; Hawes vs. Warner, 2 Vern., 477; Serle vs. St. Eloy, 2 P. Wms., 386; Bickham vs. Cruttwell, 3 Mylne & Cr., 763. Here, however, the will of Philip T. Berry is not before us, and we are not therefore advised as to what were the rights of the legatees or distributees under that will, as opposed to any claim for exoneration of. the devised real estate to Mrs. Dodge. And of course, if Mrs. Dodge took the property cum onere, and was bound to discharge the incumbrance, she could liave no claim against her father's estate for exoneration; and therefore the release of the mortgaged property was a release of the debt to her.
But upon the question of intention of Horatio E. Berry and his wife, in the making of the bond, we think
But if the intent were not thus apparent, the judgment in this case could not be sustained. The bond
Judgment reversed.