2 Md. Ch. 64 | New York Court of Chancery | 1849
Upon carefully reading the mortgage deed of the 29th of March, 1843, from the defendants, Robert H. Ayres, and Alethea, his wife, to the complainant, I am of opinion, that its legal effect is to secure to the complainant the annuity therein mentioned, of one hundred and twenty dollars, during the life of Mrs. Mary Ayres.
That such was the intention of the parties to the instrument, is too clear for dispute, and, as has been said by the Court of Appeals, in a recent case, it is the duty of courts, (the intention being ascertained,) to give the instrument such an interpretation as will effectuate that intention; provided the terms and expressions employed will admit of such construction. The courts are first, by an inspection of the grant, to ascertain what the parties intended should be effected by it, and then they are so to expound it as to accomplish that intention, unless expressions are employed which positively forbid it. In this case, the recitals, constituting a portion of the premises of the deed, which word premises constitutes every thing which precedes the habendum, make it too plain for argument, that the intention was to secure the plaintiff the annual sum of one hundred and twenty dollars, during the natural life of Mrs. Mary Ayres, and, therefore, although the habendum contains no words of limitation, defining the duration of the estate, the grant must be construed with reference to the manifest intention of the parties, and be made to convey an interest commensurate with the object to be accomplished. Budd vs. Brooke et al., Lessee, 3 Gill, 198, 234, 235. I am, therefore, of opinion, that the exception of the defendant, Banks, filed on the 5th inst., to the report of the auditor, must be overruled.
The same party has also excepted to the Auditor’s report, upon the ground, that the effect of the proceedings in this case, wdiich originated in a bill filed by the mortgagee, in July, 1846, for a foreclosure and sale of the mortgaged premises, is to ex-
This I understand to be the settled doctrine upon the subject, and undoubtedly meets the justice of the case. Salmon vs. Clagett, 3 Bland, 179. Binckerhoof vs. Thallhimer, 2 Johns. Ch. R., 486. Campbell et al. vs. Macomb et al., 4 ib. 534. This exception, therefore, cannot be sustained.
The remaining question relates to the propriety of the rule adopted by the Auditor for ascertaining the present value of the annuity, payable to the complainant during the life of Mrs. Mary Ayres. In the account A, he has assigned to the complainant so much of the proceeds of the sales as would, according to Dr. Price’s Northampton Tables, be sufficient to purchase such an annuity; though, as he observes, there is no evidence that the sum so assigned would be sufficient for the purpose.
These tables were formed by Dr, Price, from bills of mortality, kept in the parish of All Sffints, in the town of Northampton, in England, from the years 1735 to 1780; but it seems to be conceded, they would not now, in England, furnish a safe guide to follow, in estimating the present value of a life
The object here is to ascertain as near as may be, the probable duration of the life of Mrs. Mary Ayres, a person, as stated by the Auditor, proved to be fifty-five years of age. The object in the other case, was to determine in the same way, the probable duration of the life of Mrs. Dorsey, shown to have
My opinion, therefore, is that the Chancery rule is to be adopted, and I shall refer the case again to the Auditor for that purpose, when proof may be supplied of the state of the health of Mrs. Mary Ayres, on the 16th day of January, 1850.
[The case was accordingly referred to the Auditor, for the purpose of stating an account in conformity with these views.
On the 3d of April, the Auditor stated his account C, to which the complainant excepted, on the ground that there had not been a sufficient amount granted him to pay said annuity; and on thé 26th of September following, the Chancellor delivered the following opinion:]
This case is brought before the court upon exceptions to the report of the Auditor, made in pursuance of the order of this court, of the 16th of January last; and before the exceptions are considered, it becomes necessary to inquire, whether that order is so far conclusive, as to be binding upon the court; even though the views now presented, and the evidence subsequently taken, should make it apparent, that the ratification of the report would result in injustice.
Upon examination of the cases referred to in the argument, and especially that of Clagett, Administrator vs. Crawford, Trustee, 12 G. & J., 275, I am quite satisfied that although the report of the Auditor, may be in exact conformity with the views expressed, and the directions given in the former order; it is entirely competent to the court to reject the report, and order
The evidence taken under the order of the 16th of July last, renders it very clear to my mind, that the amount assigned to the complainant for the annuity of $120, is wholly insufficient, and that manifest and great injustice will be done him, if the report is confirmed.
• Mr. Donaldson, the president of the Baltimore Life Insurance Company since its organization in 1831, proves that the annuity in question was worth $1286 17, according to the tables upon which the business of that company is regulated, being the Carlisle tables, which tables, he says, furnish a fair business criterion, and a reasonable average profit; whilst the Auditor’s report gives to the complainant but $666 67. If this be so, and there is no counter testimony, it follows that the complainant, if the report is confirmed, will receive very little more than one-half the value of the annuity. This certainly is a result very much to be deprecated, and one which should be avoided, if it be possible to escape it, without trenching upon principles so firmly established as to leave the court no alternative.
My impression is, that if this question was now before the Court of Appeals, with the lights which observation, and the experience of our insurance companies would throw upon it, that tribunal would not come to the conclusion, to which, in the year 1826 it arrived, in Dorsey vs. Smith, 7 H. & J., 345.
When that decision was made, no observations had been made in this country, nor had insurance companies in Maryland, (for there were then none in existence,) by their experience, shown the applicability of the English tables to our latitude and climate. In the absence of all experience upon the subject, the court thought it would be hazardous to follow these guides, and chose rather to apply by analogy the rule long before adopted in the Chancery Court, for the purpose of ascertaining the value of a dower interest in land, sold under its decrees.
But, although the Court of Appeals might, and I think would at this day, establish a different rule for ascertaining the value
My opinion is, that such a mode does exist, and, therefore, without in any degree departing from the rule established in Dorsey vs. Smith, the rights of the parties in this cause may be settled in a way which will be perfectly just.
In Dorsey vs. Smith, from the circumstances of the cause, it became absolutely necessary to ascertain the value of the legacy purchased by Dorsey, before it became due. It was to be paid one year after the death of a party then living, and, consequently, its value at the date of the purchase depended upon the probable duration of the life of such party. The cause could only be settled by determining the value of this legacy and crediting the purchaser of it, for such amount as it should be ascertained to be worth, at the date of the purchase.
But the cause now under consideration, may be settled without determining the value of the annuity, and paying such value in money at this time. This may be effected by pursuing the the course adopted by the Court of Appeals, in the case of Buchanan vs. Deshon, 1 H. & G.,280; that is, by directing so much of the proceeds of the sale to be invested as will be necessary to raise the amount of the annuity during the life of Mrs. Mary Ayres — which, as heretofore declared, was the obvious intention of the mortgage from Robert H. Ayres and wife, to the complainant. The intention of that mortgage was to secure to the complainant the annual sum of one hundred and twenty dollars during the life of Mrs. Mary Ayres ; and, I am of opin
This arrangement has the recommendation of indemnifying the complainant, according to the provisions of the mortgage, and preserving the capital for those who may be entitled to it after the death of Mrs. Mary Ayres. Banks, the defendant, has no right to complain, because, as the assignee of the equity of redemption and purchaser at the trustee’s sale, he gets precisely the rights, which as such assignee and purchaser, he is entitled to. An order will be passed in conformity with these views, and when the trustees shall have made the investment and reported the same to this court, such further order will be passed, as the nature of the case may then require.