A court of equity will carry into execution what COURT OF APPEALS, JUNE TERM, 1808. B. & A. C. BROWNE vs. R. BROWNE, et al. APPEAL from a decree of the court of chancery appears to have dismissing the bill of complaint of the appellants. been a kind of family compact The bill, which was filed on the 4th of March for settling their property on a fair 1797, states that a certain James Browne of Glasgow, and reasonable Will a court of in Scotland, being seised and possessed of a tract of fective convey land called "Meagreholm," containing 608 acres, ly an agreement to ing in Queen-Anne's county, of one other tract of where there is no land called "Ashley," containing 95 acres and one Will a court of half, adjoining to the first mentioned tract, and of voluntary cove one other tract of land called "Hobls's Venture," containing 281 acres, lying in Caroline county, and insideration of natu- tending to convey the same to his brothers, Basil on? be such a conside Browne and Bennett Browne did on the 25th of July ration as entitled grantee to the 1777, duly make and execute a Deed Poll or instru aid of a court of equity to supply ment of writing for that purpose, and in which is defect a de fective convey contained a covenant binding the said James, and his ance to convey land, altho' such consideration was heirs, to execute any further deed or assurance that may be necessary for the more effectually conveying not expressed in the conveyance. A father being cised of conside the said lands to his said brothers, and their heirs, as rable real estate agrees not to de- tenants in common. That the lands contained in the belonged to a certain Charles understanding & Browne, who died, leaving issue the said James that Browne, his heir at law, and the said Basil and Ben agreement with nett his younger children. That a certain Andrew ing to a thinu per- Cochrane was also possessed of a large estate in Bri son whose devisee he expected to be, tain, and it was agreed between the said Charles th c he would then convey the Browne and the said James Browne, his heir, that the estate o descend. ed to him from his said Charles should leave the estate mentioned in the Lather, to his younger brothers. If after the fa- Said deed to descend unto him the said James, without ther's death the son does get tide to the estate of and in agreement with his father, a con veyance to devising the same, or any part thereof, upon this exsuch third person, press trust and confidence, that in case the said James pursuance of said should succeed to the estate of the said Andrew Cochhis rane, that then he the said James would convey the de-cend d lands, which are specified in the said deed, unto them Winch conveyance the said Basil and Bennett Browne. That the said quy James did afterwards succeed to the estate of the said Andrew Cochrane, and in conformity with the said Browne V'S Browne agreement with his father executed the deed before JUNE 1803. mentioned, which agreement, together with the natural love and affection he bore his two brothers, constituted the true consideration of the said deed. That said deed not being indented, acknowledged, or recorded agreeably to the directions of the laws of this state, did not operate to pass the legal title of said lands to the said Basil and Bennett, and that said James soon after, in 1778, died, never having been married, whereby the legal title to said lands descended unto his eldest brother Robert Browne, late of Queen Anne's county; but that said Basil and Bennett entered into and were possessed of said lands in virtue of said deed. That said Bennett afterwards, on the 1st of August 1788, made and duly executed his last will and testament, and thereby authorised his executors to sell said lands, if they should in their discretion find it necessary and proper, and if not he devised his moiety unto the complainants. That Basil also by his last will and testament, bearing date the 13th of September 1794, devised all his real and personal estate unto Basil Browne, one of the complainants. That both Bennett and Basil died without altering or revoking their said respective wills; and that Robert, the eldest brother of said Bennett, and the heir at law of said James, hath also died, leaving Charles Browne, (now of age,) Basil, Robert, and Sarah Browne, his children, to whom the legal title of the said lands have descended; but that the said Robert, by his last will and testament dated the 28th of May 1787, devised the said lands to be sold by his executors (Richard B. Carmichael and Sarah Browne,) for the payment of his debts. The complainants also state, that they have been informed, but cannot certainly declare, that the said James, in his lifetime, after the execution of the said deed, duly made his last will in writing, and devised all his estate to his mother Priscilla Browne, then resident of Queen Anne's county, who afterwards also duly made her last will in writing, and devised the same, including the legal title in the lands mentioned in the said deed, to Elizabeth the wife Browne VS. Browne JUNE 1803. of Alexander Lawson now of Baltimore county, (twe of the defendants,) and they pray that the defendants may discover the truth thereof. That said Sarah died before Robert, and that Richard B Carmichael renounced the said trust, and letters of administration with the will annexed of the said Robert were granted unto William Richmond (one other of the defendants); and forasmuch as the complainants have no means of obtaining the legal title to the said lands but by the aid of this court, and the rather as the children of the said Robert, who are the heirs of the said James, and bound to fulfil his covenant for further assurances, and to whom the legal title of said lands has descended, are infants under the age of 21 years, except Charles. To the end &c. that the defendants may answer, &c. and that said lands may be conveyed to the complainants by the children of the said Robert, or by their guardian to be appointed by this court for that purpose, and such estate vested in the complainants in the same as they respectively claim and are entitled to under the wills of the said Bennett and Basil, and that they may have such further and other relief, &c. prayer for subpena, &c. The answers of the infants, by their guardian, state, that they have no knowledge of any of the matters and things in the said bill of complaint stated but from information, &c. and the answers of the other defendants admit the facts stated in the bill. That they have no knowledge of any will being made by the said James Browne. That Priscilla Browne executed her last will and testament, dated the 29th of July 1778, which they exhibit, by which she devised the said lands to her daughter Elizabeth the wife of Alexander Lawson, during her natural life, &c. The exhibits were-the deed poll dated the 25th of July 1777, which is as follows, to wit:-"To ALL TO WHOм these presents shall come. Be it known to you, that I James Browne the younger, of the city of Glasgow, North Britain, merchant, lawful son of Charles Browne of Wye, in Maryland, merchant, deceased. Whereas the said deceased Charles Browne Browne Browne did, some time before his death, signify to me his in- JUNE 1803. clination that if I should succeed at any time to the estate of Andrew Cochrane of the city of Glasgow aforesaid, merchant, now deceased, upon that event's taking place that I should convey and make over to Bennett Browne and Basil Browne, my two brothersgerman, equally betwixt them, all such plantations, lands, tenements and hereditaments, situate and being within the colony of Maryland, as I should succeed to in virtue of the decease of him the said Charles Browne. And whereas the said Andrew Cochrane has lately deceased, having left me his whole estate real and personal, with the burthen of paying the jointure to his widow, and a few legacies, and that I am willing to fulfil the inclination of my said deceased father; therefore know ye, that I the said James Browne, have granted, bargained, aliened and confirmed, and in and by these presents do grant, &c. unto the said Bennett Browne and Basil Browne, equally betwixt them, and to their heirs and assignees, all those my plantations, &c. within the colony of Maryland, to which I succeeded upon the death of my said father, and also the whole horses, &c. &c. To have and to hold the said plantations, &c. unto the said Bennett Browne and Basil Browne, and their heirs, to the use and behoof of them the said Bennett Browne and Basil Browne, equally betwixt them, and their heirs and assignees, for ever, &c. And I the said James Browne, do hereby bind and oblige myself, my heirs and successors whomever, and covenant, promise and engage, to and with the said Bennett Browne and Basil Browne, that I and my heirs shall and will, from time to time, and at all times hereafter, upon the reasonable request, and at the costs and charges in law of the said Bennett Browne and Basil Browne, their heirs or assignees, do make, execute and acknowledge, or cause to be done, made, executed and acknowledged, all and every such further and other lawful and reasonable act and acts, deed and deeds, devise and devises, in law whatsoever, for the further and better assurances and conformation of all VOL. 1. 55 Browne VS Browne JUNE 1803. and singular the said plantations, &c. hereby granted, or intended so to be, with their and every of their ap purtenances, unto the said Bennett Browne and Basıl Browne, their heirs and assignees, for ever, as by them, or their counsel learned in the law, shall be reasonably devised, advised or required. In witness," &c. Signed and sealed by the said James Browne, junr. in the presence of three witnesses, one of whom was a notary public. On the back of the said deed was the certificate of Robert Donald, Esquire, lord provost and chief magistrate of the city of Glasgow, certifying and attesting, under the seal of the said city of Glasgow, that on the 29th of July 1777, personally came and appeared, before him, "John Maxwell, notary public, residing in Glasgow, who upon his great and solemn oath doth depose and say, that he was present alongst with John Shanks and James Allen, and did see the within named and designed Jumes Browne, sign, seal, and as his proper act and deed deliver the within deed of conveyance, and that in testimony thereof the said John Shanks, James Allen, and this deponent, did set and subscribe their names thereto as witnesses; and this deponent saith, that the name James Browne, junr. appearing to be set thereto as the party executing, is of the proper hand writing of the said James Browne; and that the names John Shanks, James Allen, and John Maxwell, appearing to be set as witnesses, are of the proper and respective band writings of the said John Shanks, James Allen, and this deponent." The other exhibits appear as they are set forth in the bill and answers. It was agreed between the counsel for the parties, "that James Browne executed the deed mentioned and exhibited in the bill; that the said James died and left Robert Browne, his eldest brother and beir at law; that the said Robert also died and left Charles, Basil, Robert and Sarah Browne, his children, his heirs at law. It was also admitted, that the said Basil, the son of the said Robert, died since the filing of the bill, and that William Richmond is administrator of the said Robert as stated in the bill." |