83 Md. 279 | Md. | 1896
delivered the opinion of the Court.
Thomas Swann Latrobe died intestate as to his real estate, and the bill in this case was filed for the purpose of having the Court below declare by its decree what portion of his said estate he acquired by purchase, and how much thereof he acquired by descent. The maternal aunts of the intestate claim the whole of his said estate upon the theory that all of it was held by him by title by descent, while the defendants, his half-brother and half-sisters, who are also claiming the whole, base their contention upon the ground that he held the same by purchase, and that, therefore, under the provisions of our Code (Art. 46, sections 19 and 20) it must come to them. By its decree the Court below held that both of these contentions were wrong, and decreed as follows: 1st. That all the property and estate which was acquired by the intestate under the declaration of trust executed by his grandfather, Thomas Swann, on 3rd April, 1878, said intestate held by purchase. 2nd. That so much of said intestate’s estate as he acquired under the will of his grandmother, Elizabeth Gilmor Swann, he also held by purchase and not by descent; and lastly, that said intestate acquired by descent from his mother, Louisa Swann Latrobe, one undivided half of the real estate in these proceedings known as the “ Water Company’s Lot.”
But for the elaborate argument submitted on the part of
We think it equally clear that the property which was acquired by the intestate under the deed of trust was held by purchase and not by descent. Some of the reasons upon which this conclusion is based are thus concisely stated in the plaintiff’s brief: “(«) Because Gov. Swann’s (the grantor) entire estate did not pass under the deed. (b) Because he reserved to himself a life estate therein, and declared that he held the property (except the Washington and Newport lots) in trust for his children and grandchildren, whereas estates do no descend in trust. ‘ {¿) Because the deed gave the grandchildren awested remainder in fee. (d) Because the intestate not having been devisee as to any portion of the property of his grandfather excepted from the operation of the deed, did not take the same interest in Gov. Swann’s lands that he would have acquired had his grandfather, the Governor, died intestate.”
As it is manifest the intestate would have taken by descent a very different estate both in quantity and quality from that which passed to him under the deed, he must take by purchase, according to the rule we have already re- ■ ferred to.
The remaining question relates to the title by which the intestate acquired his share in the Water Company’s lot. By the decree appealed from it was held that it came to him by descent from his mother. The defendants contend that while it is true this property was originally acquired by descent, yet by reason of the acceptance of the deed of trust and by virtue of the doctrine of election and the payment of the money by the intestate to the plantiffs as required by the deed, the plaintiffs cannot now set up a different title or any other than the one which was asserted in said deed. We are unable to discover the application of the doctrine of election to the facts before us. Stated in general terms it is that a person shall not be allowed to claim an interest under an instrument without giving full effect to that instrument so far as he can. Thelusson v. Woodford, 13 Ves. 209. The same doctrine has been frequently applied by this Court. McElfresh v. Schley, 2 Gill, 181; Barbour v. Mitchell, 40 Md. 163 ; Albert v. Albert, 68 Md. 376 ; Kuykendall v. Devecmon, 78 Md. 540, and re
It follows that the plaintiffs take the undivided half of the Water Company’s lot, because it was acquired by the intestate by descent from his mother, and that the remainder of the intestate’s estate, having been acquired by him by purchase under the will of his grandmother, and the deed of trust executed by his grandfather goes to the defendants.
Finding no error in the decree appealed from it will be affirmed.
Decree affirmed, cause remanded, costs to be' equally divided between plaintiffs and defendants.