| Md. | Jun 26, 1878
delivered the opinion of the Court.
The appellant, devisee and legatee of the late Benjamin Ogle, filed her bill in the Circuit Court for Prince George’s County, sitting in equity, against the appellees, purchasers of a part of the real estate of the testator, claiming compensation for the right of domicil in the Mansion House of the testator called the “Bel Air House,” and the balance of a legacy charged upon the lands purchased by his last will.
The bill alleged, that the father of the complainant, the late Benjamin Ogle, being seized and possessed of a large real and personal estate (the former known by the name of “Bel Air,” containing about fourteen hundred acres, on which there was a large and commodious dwelling house, the residence of the testator,) made his last will and testament duly attested to pass real estate, and among other devises and bequests, gave, bequeathed, and devised to the complainant hy the third item or clause of his will, the choice of a maid servant from among all his negroes, and any room she may choose to occupy in Bel Air House during her single life.
The testator devised and bequeathed to his wife during her natural life, all his personal estate, (excepting as thereinafter mentioned) and all the real property of which he died seized, and after her death, the said land, negroes and other personal property, to be equally divided between his sons Richard Lowndes Ogle and George Cooke Ogle, to them and their heirs in fee simple, etc.
The testator further gave and bequeathed to the complainant, the sum of three thousand dollars, to be paid to her by her brothers Richard and George, (each paying
The testator died in the year 1844, his widow Anna Maria Ogle entered into possession of his estate, real and personal, and enjoyed it until 1856 when she died. The devisees, Richard and George Ogle, succeeded to the property after the death of their mother, under the provisions of the will, the real estate being divided into two parts, that portion containing the mansion, being assigned to George O. Ogle.
The complainant being unmarried resided with her mother until her death, on the 28th of December, 1856, and since resided with her brother, George O. Ogle, up to 1871, when the real estate, containing the mansion house was sold under a decree of the Circuit Court for Prince George’s County, in the case of Mullikin, Ex’r of Jackson, against George C. Ogle and Wife, and purchased by the appellees, who took possession and now occupy the same.
The complainant alleges that in consequence of the said sale and possession by the appellees, she is unable to occupy the room devised to her and which she had selected, occupied and enjoyed from the time of her mother’s death, and has been obliged to vacate the same.
It is further alleged that George C. Ogle is insolvent, and has never paid the complainant any part of the one-half of the legacy of $3000 bequeathed her, that the sum of $1500 with interest remains due to her, less the sum of $1500 paid in part thereof by the appellees, since their purchase, and the same is a lien upon the real estate purchased by the appellees.
The appellees by their answer, admit the facts alleged in the bill, including the sale and purchase of the lands by them under the decree in the case of Mullikin, Ex'r vs. Ogle and Wife, but they deny that in consequence thereof, the complainant has been unable to occupy the room in the mansion house devised to her. “ On the contrary they aver that neither they, nor either of them, have directly or indirectly done anything to hinder or prevent in any manner, the complainant from the full, free and quiet occupation and enjoyment of the same, from the date of the sale to the'date of their answer, and they insist that the room in the mansion, heretofore selected and occupied by the complainant, is still in her possession, etc.—that they are still willing the complainant shall use and occupy the said room, fully, freely and uninterruptedly.”
Further answering the appellees deny the validity and justice of the claim for the balance of one-half of the legacy of $3000; they deny that it is a charge on the said land, aver that they are purchasers without notice as to the existence of any claim in that respect, beyond the sum of $1500, which they insist has been fully paid and satisfied. Testimony being taken under a commission duly executed and returned, the cause was submitted, and the Court below, on the 22nd day of June, 1877, passed a decree, dismissing the bill, from which this appeal was taken.
The questions presented by the record are two-fold.
1st. Is the appellant entitled to a commutation in money for the use of a room in the mansion house at Bel Air ?
As to the first enquiry, in a case recently decided in this Court, arising upon the construction of a devise very similar to the present, it was determined that “a provision of this character is a charge upon the land, not only while it is in possession of the original devisee, but follows it through all subsequent alienations. This is a proposition so well settled as to admit of no further question.” Tolson vs. Tolson, 10 G. & J., 159; Willett vs. Carroll, 13 Md., 459; Donnelly vs. Edelen, 40 Md., 117; Meakin vs. Duvall, 43 Md , 378.
But the right to commutation depends not upon the existence of the easement or service alone, but upon the interruption of its use and enjoyment by those taking the land subject to the burden.
In the case last cited, although this Court held that the devise in question created the charge, yet because the evidence did not show the devisee was in any manner interrupted, prevented or excluded from the use and enjoyment of her privilege, her claim for commutation was denied.
After a careful examination of the evidence in this case, we are unahle to find proof of the allegation of the complainant, that in consequenee of the sale and possession by the purchasers of the same, she has been unable to occupy the said room and has had to vacate the same.
The testimony shows’that the legal possession of the room was still in the complainant, that she left a part of her furniture in it and retained the key, and left the house because she could not remain without her brother, and with disagreeable people in the house, the managers of the defendants.
This aspect of the case has been anticipated and answered by this Court, in the case of Meakin vs. Duvall, in the fol
“ But this step we cannot take. However much, loss of property, of relations and friends, and change of circumstances and society, may excite sympathy for those who are unfortunately subject thereto, they cannot he made grounds for infringing legal rights. It is the right of the appellant, (the purchaser in that case,) to discharge the duties imposed on him by this will in the mode prescribed by the instrument itself, and he cannot be deprived of that right and made to pay a money charge without just cause shown. Nor can mere conjecture as to what may happen if the appellee should resume her residence in this house with its present owner, be accepted as safe ground for judicial action. The trial must first be made and the test of experience first applied.” 43 Md., 381, 382. We entirely concur with the learned Judge below, in the ■opinion, that in respect to the use of the room this case is concluded by the decision in the case just cited.
It is insisted by the appellant’s counsel, that she left the house and surrendered her room to the appellees, on the agreement made with them under their submission of the value of the room, to be ascertained by Messrs. Hill and Wootten, and on the undertaking by the appellees to adopt such valuation as these gentlemen may find.
Whatever may be the legal meaning, and effect of the agreement referred to, whether it is a submission to arbitration, consummated by a final award as contended by the appellant, or an inchoate submission, or invalid award for want of notice, as argued for the appellees, the evidence is excepted to as inadmissible by the latter, and although the reasons of their exception may not be tenable, it is
The allegations of the bill are, however, inconsistent with the position taken by the appellant’s counsel in this respect.
Whether the legacy of three thousand dollars is a charge on the r.eal estate purchased by the appellees, is necessary to be determined before their liability for principal or interest can be ascertained.
All the authorities concede that this is a question of intention, and the more recent determine that words which charge debts upon the realty, will have the same effect as to legacies. 2 Jarman on Wills, 525 to 532, in mar., (3rd Amer. Edition.)
In this case, the testator had previously devised all his estate real and personal, (except this legacy,) to his wife for life, and after- her death to his two sons, in fee, directing them to pay the legacy upon their coming into possession of the property hereinbefore bequeathed, them.
The appellees’ counsel contend that the word bequeathed relates only to the personal estate, and excludes the real. But we think this is too narrow a construction of the language of the will. The popular sense of the word bequeath includes “devises,” indeed the terms are used as synonymous, or equivalent by the lexicographers. Vide Worcester’s Dictionary.
The property bequeathed to them constituted one fund, and the residue of his estate after the death of his widow. Nothing else existed out of which the legacy could be paid. To confine it to the personalty, would have made it dependent- on the use and consumption of the widow, who had an absolute right of disposal by the terms of the will, (“ to have entire control and do with as she thinks best.”)
As the will was the foundation of George O. Ogle’s title and interest in the lands purchased by the appellees, and referred to in the advertisement, they must be considered as having notice of the charge imposed by the will on the lands devised.
The next inquiry is the extent of the lien to which they were subject.
The trustee by his advertisement notified the bidders, that the sale would be subject to any right which may exist under the last will and testament of the late Benj. Ogle, in favor of Miss Rosalie O. Ogle, of a room in the Bel Air House, during her single life, and the payment of fifteen hundred dollars.
■ It is said, that the trustee was in nowise the attorney, agent, or representative of Miss Ogle, and had no right to fix the amount of the lien due her.
Miss Ogle was no party to the proceedings under which the lands were sold, and does not appear to have had any personal knowledge of the sale or any participation in the result, beyond her demand of $1500, and the acceptance of the check of the appellees for the sum of $1500, payable to her order and endorsed by her, which acts cannot be regarded as a waiver of any antecedent rights, “per se.”
Whether she was advised of her rights, or acted in ignorance of them, the demand and acceptance unexplained constitute we think no estoppel.
Legacies are not barred by the Statute of Limitations, nor has there been such laches in this case, considering the relations of the parties as should preclude the appellant from asserting her right'.
But the appellant’s claim being only cognizable in equity should be subject to all the equities which would exist between her and the devisee of the land.
Although .Dr. Ogle declares he never paid his sister a -cent of the principal or interest, yet at the same time he says, “ she lived with witness, hut never paid any board; witness never asked her board; there was never any understanding between us she was to pay board, nothing was ever said between us with reference to her board, she never asked me for a dollar in her life.”
Such reticence between a brother and sister, for a long course of years, on a subject of such importance to both, could only proceed from a mutual consciousness, that reciprocal benefits cancelled all current obligations between them. The constant guest could not become the exacting creditor. All accumulation of interest or charges for board were tacitly abandoned.
The claim in this case is both “in rem,” and “in personam.” The charge on the land is an incident to the claim on the person, and the one cannot exceed the other.
Although the statutes of Set-off do not strictly apply to cases in equity, yet, the principle has its origin in Chancery, and is often applied.
The appellees in this case, if liable at all, are liable as •owners of the land charged by the will. The amount of that lien depends entirely upon the mutual dealings between the brother and sister, who occupied the farm, and the appellees being substituted by equity to the liabilities of the late proprietor, should be subrogated to all his rights.
We think therefore that the appellant is not entitled to interest on the claim of $1500, since she became an inmate of her brother’s family, and while she remained such. It follows from what has been said that the decree below should be affirmed.
Decree affirmed.
Stewart, J., dissented.