Hollins v. Coonan

9 Gill 62 | Md. | 1850

Martin, J.,

delivered the opinion of a majority of the court.

Since the opinion delivered in these cases by a majority of the court, a plat has been filed in the cause by the counsel for the defendant, marked CD, and admitted by both parties to be correct, from which it clearly appears, that the late Cumberland Dugan was the owner of three three-story houses, fronting on the south side of Water street. And it has been admitted by the counsel for the defendant, in his letter of the 22nd of March, 1850, filed in the cause, that these houses were erected by the testator prior to the execution of his will. Under such circumstances, it is impossible to contend, there was a misdescription of the property designated by the testator in the fifth clause of his will. The court, therefore, all concur in the opinion, that the testator is not to be considered as having committed a mistake in the 28th clause of his will, and that the 25th and 28th sections are to be construed as operating upon the same property.

The question, then, arises, whether the 28th clause is to be regarded as an abrogation of the 25th clause of this will, or do the devisees mentioned in the two clauses, take concurrently ?

Upon this question there is a difference of opinion among the members of this court. Three of the judges being of opinion that the 28th clause operates as an abrogation of the 25th clause, and that the property in contest, is therefore devised by the 28th clause to the plaintiff’s below. Two of the judges being of opinion, that the trustees named in the 25th and 28th clauses of the will, take concurrently, each trustee taking a moiety of the property in dispute, for his cestui que use.

This court is therefore of opinion, that the county court erred in refusing the plaintiff’s prayers, in the instruction given by them to the jury, and were correct in rejecting the defendant’s prayer.

It is proper to state before leaving the case, that the majority of the court, in determining that there was a mistake in the 28th clause of this will, (for the reasons stated in their opinion,) on the supposition that the testator had misdescribed the property intended to be devised by the fifth clause, acted upon the record in its then imperfect condition. It appeared from the plat, forming a part of the record as it then stood, that, there were no houses on the south side of Water street; and with this plat before them, they thought it demonstrably clear from the terms of the will, that the property which the testator designed to give to his wife, for life, by the 5th clause, was the house at the corner of Water street and Cumberland row; and the three houses, Nos. 2, 3 & 4, on that row; that the testator meant, that the 5th, 16th, 24th & 25th sections of his will should operate upon the same property.

By the plat recently filed, designated as DC, and the admissions of the counsel, it is beyond controversy, that the testator was, at the date of the will, the proprietor of three three-story houses, fronting on the south side of Water street; and there is, of course, no room for the argument, that there was misdescription in the fifth clause.

In the case of C. D. Hollins of Robert, and C. D. Hollins of John, vs. Daniel Coonan, the judgment of the county court is reversed. And in the case of Daniel Coonan, vs. C. D. Hollins of Robert and C. D. Hollins of John, the judgof the court below is affirmed.

JUDGMENT AFFIRMED.