63 Md. 520 | Md. | 1885
delivered the opinion of the Court.
The bill in this case was filed by the children and grandchildren of Joshua Sellman against Joshua Sell-man and Jane Sellman, his wife, and others, for the purpose of having two deeds of conveyance declared void, as having been procured from the said Joshua Sellman by fraud and undue influence. In effect the bill charges that Joshua Sellman, the grantor, was, at the date of those deeds, a very old and infirm man, and greatly subject to the control and undue influence of a comparatively young wife, whom he had married a few years previous, she being his second wife, and not the mother of his children. It is charged that the grantor was, at the time of the making of those deeds, and still is, by reason of old age and other infirmities, of feeble and imbecile mind, and was “ without capacity to dispose of his property with judgment and discretionand being in that weak and infirm state, he was made a victim to the fraud and undue influence of his designing wife, and was induced to make the deeds in her favor, which the complainants, by their bill, seek to have vacated. It is alleged that the wife procured the- deeds to be made by the husband with the fraudulent intent and purpose of. investing herself with the property of her husband, “ and of depriving his law
The defendants, Joshua Sellman and wife, and Reifsnider, the trustee to whom one of the deeds was made, demurred to the hill, and the demurrer was sustained and the bill dismissed, upon the ground that the complainants had no such right or interest in the property as would entitle them to maintain a bill for the relief prayed. And this Court fully concurs in that opinion.
It is a fundamental principle of equity pleading that, to entitle a party to sustain a bill, he must show an interest in the subject of the suit, or a right to the thing demanded, and proper title to institute the suit concerning it; and if such interest or right to sue be not fully shown by the bill itself, the defendant may demur. Mitf. Eq. Pl., top pages 272, 329 ; Sto. Eq. Pl., secs. 728, 730. And this being the requisite in pleading, the complainants, upon the maxim nemo est licores viventis, can have no standing in Court; for that maxim is of equal force in equity as at law. The children and grandchildren of a living ancestor cannot claim a right or maintain a suit in respect to the property of that ancestor, while their interest in such property is merely in expectancy, depending upon a future inheritance that, by possibility, may never occur. The principle is, both at law and in equity, that no one is entitled to be recognized as heir until the death of the ancestor, or the person from whom the descent maybe cast; and the fact that such ancestor or other person may be alleged
We have, however, been referred to the case of Colegate D. Owens, in 1 Bland, 370, as a precedent for this
Decree affirmed.