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will of William Prescott Webb, and praying case, stood in loco parentis to the legatees, for an order of court directing its payment to they were entitled to interest from his death, them. The appellees answered the petition, and then applied the rule to which we have admitting that they were directed by the referred to the case of one of the legatees will of William Prescott Webb to pay the who died under age, and ordered the immelegacy of $5,000 to the petitioner's intestate, diate payment of the legacy to the personal Wilbur M. Webb, but insisting that they representative of the legatee. The Mary. could not be compelled to pay it "before the land cases relied on by the appellees are not time when the said Wilbur Morrison Webb in conflict with the rule. In Keerl v. Ful. would have reached the age of twenty-one ton, 1 Md. Ch. 535, the decision that the repyears.” The circuit court, upon a hearing of resentative of the deceased minor legatee the matter, refused to direct the payment must wait for the legacy until the child of the legacy, and passed an order dismissing would, if living, have attained its majority, the petition. From that order the present was put upon the express ground that inappeal was taken.

terest was not payable upon the legacy durWe think the learned judge below erred in ing the minority of the legatee; and the his action on this petition. The appellees case of Crickett v. Dolby, supra, was cited do not, in their answer, deny that they have by the court as an authority for its decision. the $5,000 in their hands, or assert that the The cases of Hinkley y. House of Refuge, fund held by them for the payment of the 40 Md. 469, 17 Am. Rep. 617, and Wehrhane legacies to the grandchildren is so invested, v. Safe Deposit Co., 89 Md. 179, 42 Atl. 930, or in such condition, that it would be incon- presented questions of the acceleration of revenient or disadvantageous to raise the $5,000 mainders in one instance by the death of with which to make the payment, nor do the life tenant and in the other by the rethey suggest any other reason for declining | nunciation of the widow. The court in each to make it than the inability, in their opin- of those cases admitted that under ordinary ion, of the appellants, to compel it to be made circumstances the acceleration of the legacy before the time when the legatee, if living, there under consideration would have ocwould have reached his majority. It is not curred, but held that by reason of the special necessary, in this connection, to repeat in de terms of the wills creating these legacies tail the provisions of the will by which the such a result would contravene the inténlegacies to the grandchildren were given. tion of the testator, and therefore held that When that instrument was before us in the no acceleration took place. case in 92 Md., 48 Atl., and 84 Am. St. Rep. The direction to the appellees, as execuwe distinctly decided, as we have already tors, to pay the legacies at such time as said, that those legacies were vested, and they might find it convenient, appearing in bore interest from the death of the testator, the will in the present case, referred to the and that the provisions of the will in refer exigencies of the settlement of the estate, and ence to the time of their payment were not did not confer upon them any arbitrary or of the substance of the gift, but related capricious power to delay payment. It apmerely to its enjoyment. The authorities pears from the proceedings that they turned agree that, where a vested legacy, not char the money over to themselves as trustees ged upon land, is given to a child, to be some time ago, and they do not suggest that paid at his majority, and interest is payable it would prejudice the estate in any manner thereon in the meantime, if the legatee die to make an immediate payment of the legacy ander age his representative will be entitled now in question, but rest entirely upon the to the immediate payment of the legacy; but, want of title in the appellants to receive it . if no interest be payable on the legacy, the at this time. We think the appellants are representative must wait until the legatee entitled to receive the legacy now. The orwould have come of age if he had lived. der appealed from will be reversed, and the Roper on Legacies, vol. 1, *871; Williams case remanded for further proceedings in acon Exrs., vol. 2, *1254; Crickett v. Dolby, cordance with this opinion. 3 Ves. Jr. 13; Trustees of Jacobs v. Bull, Order appealed from reversed, with costs, 1 Watts, 372, 26 Am. Dec. 72; Felton v. and case remanded for further proceedings Sawyer, 41 N. H. 213; McReynolds v. Gra in accordance with this opinion. ham (Tenn.) 43 S. W. 138; Bowman's Appeal, 34 Pa. 19; Am. & Eng. Encycl. of Law (2d Ed.) vol. 18, pp. 792, 793. In most

(96 Md. 292) of these cases interest was made payable HUNTER V. HERSPERGER et al. on the legacy during the minority of the (Court of Appeals of Maryland. Jan. 16, 1903.) legatee by the terms of the will, but in DESCENT AND DISTRIBUTION - STATUTES Bowman's Appeal, supra, the legacies were

RIGHTS OF HUSBAND-CHOSES IN

ACTION-INTEREST. given, as in the present case, to the grand

1. Code, art. 93, § 32, as amended by Acts children of the testator, to be paid on their

1892, c. 571, provides that, where a married respectively coming of age, and no disposi woman dies intestate, leaving childreu or detion of the interest in the meantime was scendants, the "surplus” of her estate shall be

distributed to the husband for his life, and aftmade. The court there held that as the

er his death to the children and descendants per testator, under the circumstances of that stirpes, and that the orphans' court shall direct

54 A.-5

the mode in which the estate shall be invested "had been kept alive by appropriate profor the best interests of the remaindermen. Held

ceedings, and was still in full force and efthat, where a married woman died intestate leaving children, and owning a judgment, which

fect, but which judgment was at the time at her death was uncollectible, but which, sey

of her death worthless." On the 12th of eral years after, her administrator collected, May, 1902, the administrator collected it, the husband was not entitled to interest accru

amounting at that time to $3,375.25, includ. ing thereon between the date of his wife's death and the collection of the judgment, but

ing $7.45 costs, "said judgment having been was only entitled to the income of the fund re collected at the earliest possible date.” The maining after paying debts and expenses of ad statement of facts does not show why it ministration.

could not be collected sooner, but it was Appeal from orphans' court, Montgomery said at the argument that the judgment county; Samuel D. Waters and Geo. W.

debtor inherited some property, which enaMeem, Judges.

bled the administrator to recover it. The adFinal accounting by Samuel Hersperger, ministrator settled an account on July 12, as administrator of Hannah Hunter, deceas 1898, and on the 22d of July, 1902, he settled ed. From an order directing the adminis another, in which he distributed the proceeds trator to invest the surplus of the estate, of this judgment; the debts of the decedent which included interest accruing on a judg- and the commissions, costs, etc., amounting ment subsequent to decedent's death, Thom to $1,622.07, leaving in his hands $1,753.18 as Hunter appeals. Affirmed.

for distribution. The record does not disArgued before McSHERRY, C. J., and close how so much was realized on the judgFOWLER, BRISCOE. BOYD, PAGE, ment, but the brief of the appellant states PEARCE, SCHMUCKER, and JONES, JJ. that on March 17, 1891, the amount of the Wm. H. Surratt, for appellant.

Edward judgment was $2,017.56, and interest was apC. Peter, for appellee.

parently collected on that sum from that

date to May 12, 1902, when it was paid; BOYD, J. This is an appeal from an or but, as the amount that was due on the der of the orphans' court of Montgomery judgment is not before us for review, that county directing the administrator of Han is not material. The question intended to be nah Hunter to invest the amount remaining presented is whether the appellant is entitled in' his hands, after payment of the debts to interest on this judgment from the date and costs, and to pay the income to the ap

of the death of Mrs. Hunter. He contends pellant during his life, and after his death that under the statute he was a tenant for to the children of Hannah Hunter, who was life of his wife's personal estate, and, as the the wife of the appellant, and died intestate, judgment was bearing interest until paid, leaving four children surviving her. We have that he was entitled to all such interest as had some doubt about the propriety of pass

accrued after her death; the principal and ing on the question which has been argued interest to that time being more than suffibefore us, as it is not presented by the rec cient to pay her debts and the cost of the ord in a way which we can approve of, as

adininistration. the facts necessary to be considered are The statute in force at the time of her in an agreement of counsel filed in the or death was section 32 of article 93 of the phans' court a month after the order appeal Code, as amended by chapter 571 of the ed from was passed. But as it states that, Acts of 1892. That provided that, if the “The following is the agreed statement of intestate be a married woman, and leaves facts upon which the order of the orphans no child or descendants, all her personal propcourt for Montgomery county dated July erty, including choses in action, shall devolve 22, 1902,

was passed," and, as the upon her husband absolutely, and it shall question has been argued without objection not be necessary for him to administer upas to the method of presenting it, we will on her estate in order to pass title to him, determine it, but do not want it to be con unless she shall be liable for debts owing by sidered as a precedent binding on us in the lier; and, after making provision as to how future. When a case is heard on an agreed the husband is to get title to the property in statement of facts, it should be reduced to such case, it proceeds: "But if the intestate writing, and filed in the lower court before be a married woman, and leave a child or the case is there disposed of, or the facts children or descendants, her personal estate should be certified to this court by the lower including all choses in action shall devolve court in such way as will enable us to know upon her administrator or administrators, with certainty what that court understood and the surplus of her estate shall be diswas before it, and what it passed on. tributed by the orphans' court to the hus

From the statement of facts we find that band for his life and no longer, and after Hannah Hunter died on the 26th day of May, his death then to her children and descend1837, and Samuel A. Hersperger was appoint ants per stirpes; and it shall be the duty of ed administrator of her estate on the 7th the orphans' court granting the said adminof the following August. At the time of her istration to direct the mode in which the death she was the owner of a judgment for said estate shall be invested [statute reads $1,173, rendered March 17, 1879, in the cir "interested'] so as best to serve the rights of cuit court for Montgomery county, which children or others interested after the ex

*

delay, and, the right to collect the

to the orders of the orphans' court, and shall from the time of his qualification, it was imnot be disposed of by the administrator ex possible to do so before he did. He received cept by virtue of an order or a decree duly the money on the 12th day of May, 1902, passed by said court." The appellant, in and stated an account in June, which was support of his contention, cited Evans V. finally acted on by the court on the 22d Iglebart, 6 Gill & J. 171; Merryman v. Long, of July, after giving parties in interest an 19 Md. 545; Abell v. Abell, 75 Md. 44, 23 opportunity to be heard. We are of the Atl. 71, 25 Atl. 389; Wethered v. Safe De opinion that the order of the court below was posit & Trust Company, 79 Md. 153, 28 Atl. in accordance with the terms of the statute, 812; and Burt v. Gill, 89 Md. 145, 42 Atl. and must, therefore, be affirmed, but we 968, 43 Atl. 177,-but in each of those cases will direct the costs of the appeal to be paid the decedent left a will, and, while ques out of the fund. tions as to when interest should begin to run Order affirmed, costs to be paid out of on various kinds of legacies and when in the fund. comes should be paid to life tenants were considered, the familiar principle that such

(96 Md. 247) questions must be governed by the intention of the testator, when that can be ascertained

NEWBOLD V. HAYWARD et al. from the will, was fully recognized and ap (Court of Appeals of Maryland. Jan. 14, 1903.) plied. In this case the only right that the TRIAL-EVIDENCE-DIRECTING VERDICT. appellant has to any part of his wife's per 1. In passing on an instruction withdrawing sonal estate is given him by the statute, and

plaintiff's case from the jury, the court must

assume the truth of all the evidence tending to hence we must look to it to ascertain what

sustain plaintiff's claim, and all ivferences of that is; and when we do we find that it says fact fairly deducible from it, even though such in plain terms that “the surplus of her estate

evidence may be contradicted in every particu

lar by opposing evidence. shall be distributed by the orphans court

2. Where the evideuce as to whether there to the husband for his life, and no longer, has been a waiver of a demand is directly conand after his death then to her children and flicting, there is an issue of fact, which should

be submitted to the jury. descendants per stirpes." The only portion of her estate he is thus entitled to is the sur Appeal from superior court of Baltimore plus during his lifetime. That is to be dis city; John J. Dobler, Judge. tributed by the orphans' court to him for Action by David M. Newbold against life, and after his death the same thing Thomas J. Hayward and others. From a that is to say, the surplus--is to be distribut judgment for defendants, plaintiff appeals. ed to the children and descendants. If the Reversed. legislature had intended that he should re Argued before McSHERRY, C. J., and ceive interest earned before that distribution FOWLER, BRISCOE, BOYD, PAGE, was made, it would doubtless have said so; PEARCE, SCHMUCKER, and JONES, JJ. but the statute not only limits the right of John Prentiss Poe and Thomas Ireland Elthe husband to the surplus,-which means liott, for appellant. John E. Semmes, for that part of the estate which is left after

appellees the debts, costs, etc., are paid,—but it makes it the duty of the orphans' court “to direct BRISCOE, J. The pleadings in this case the mode in which the said estate shall be are voluminous, but, as the questions preinrested, so as best to serve the rights of sented by the appeal arise upon the rulings children or others interested after the ex of the court on the prayers, we deem it unpiration of the life estate"; thus showing important to set them out in full, but shall that the legislature was endeavoring to care refer to them in so far as it may be necesfully guard the rights of the children, and sary for the purposes of this decision. there is nothing in the statute to justify an The suit was brought by the appellant inference that it was intended that the sur against the appellees to recover for the plus should be depleted by deducting interest breach of an alleged contract whereby the from the wife's death, or any other period, latter were to deliver to the former certain from it. After the debts and expenses con shares of the capital stock of the City & nected with the administration are ascer Suburban Railway Company of Washington, tained, the surplus should be distributed under an alleged contract of guaranty given or, more properly speaking invested-prompt- by them to the Baltimore Trust & Guaran. ly, so as to give the husband the benefit of tee Company. The basis of the action is the the income therefrom; but there must neces alleged guaranty, as contained in the folsarily be some delay in the settlement of es lowing letters: tates. In this case the final distribution was "Baltimore, August 25, 1898. Mr. N. P. not made until over five years after the death Bond-My Dear Sir: As I understand it, of the intestate, but, as we have seen, the Hayward, Parr, Scott, and yourself guaran. judgment was considered worthless, and was ty to the Davidson Co. that the amount of “collected at the earliest possible date.” the bonds underwritten by them will comNo one, therefore, is to be blamed for the plete the City & Suburban enterprise in

Washington in conformity with the contract compensation for the guaranty, and that a with them; and, should it fail to do so, then resolution was introduced by the plaintiff, you four gentlemen are to make it good. To and voted for by him, at the directors' and the extent of 16, which would be my propor stockholders' meeting, under the terms of tion, I am willing to accept the same risk which the guarantors were required to rethey do. Of course, if there are others in lease the security company from all liability, this guaranty, it lessens my responsibility which the majority of the guarantors were and pay in like proportion of whatever we get unwilling to do, and that the guarantors for this guaranty; it being distinctly un were not entitled to compensation; and they derstood that, for assuming such risk, ade deny the liability claimed by the appellant. quate compensation be allowed us. Please At the trial below, the plaintiff offered communicate this to the gentlemen interest 5 prayers, all of which were refused. The ed. Respectfully, D. M. Newbold.”

defendants offered 12 prayers. All of these "Baltimore, September 24, 1898. D. M. were rejected, except the first and second. Newbold, Es’r., Baltimore-Dear Mr. New- | It will be thus seen that the questions for bold: Referring to your letter of August 25, our consideration arise upon the rulings of 1898, addressed to Mr. Bond, I beg to say the court on the rejection of tbe plaintiff's that it is understood that you assume the prayers, and the granting of the defendants' same liability as any one of the guarantors, first and second prayers, and to a special and that you shall share equally with them instruction given by the court. The defendany compensation which may be allowed ants' prayers, as granted, and the special in. them for entering into the contract of guar struction of the court, practically withdrew anty. Yours truly, T. J. Hayward, for Guar the case from the jury. These prayers were antors."

in the nature of a demurrer to the evidence, Briefly stated, the facts out of which the and were a concession of the material facts, controversy arose are as follows:

On or but a denial of their legal sufficiency. about the 11th day of October, 1897, a cor We have carefully examined the record poration was formed in the city of Balti before us, and think that the plaintiff was more called the Baltimore Security & Trust entitled, under the facts in the case, to have Company; the appellant and appellees being the evidence submitted for the consideration the principal stockholders. The object and of the jury, and the court committed an erpurpose of its incorporation was to purchase ror in withdrawing the case. In Jones y. an option on the Columbia & Maryland Rail Jones, 45 Md. 154, it is said that before a way. Shortly after the incorporation it pur prayer can be granted, withdrawing a case chased this railway, which at the time in from the jury, the court must assume the cluded a majority of the capital stock of the truth of all the evidence before the jury City & Suburban Railway of Washington. tending to sustain the claim or defense, as Subsequently the stock of the security the case may be, and all inferences of fact company was increased, and the Baltimore fairly deducible from it, as on demurrer to Trust & Guarantee Company, a corporation the evidence; and this though such evidence of the city of Baltimore, purchased the bonds be contradicted in every particular by the of the City & Suburban Railway under an opposing evidence, in the cause. The deagreement and guaranty on the part of cer fendants' first and second prayers were theretain directors of the security company that fore erroneous, and should have been rethe proceeds of the bonds would be suffi- | jected. Roberts & Co. v. Bonaparte, 73 cient to convert certain street horse car Md, 207, 20 Atl. 918, 10 L. R. A. 689. railways of the City & Suburban road into The special instruction given the jury by electric roads. The enterprise proved very the court raised the questions of waiver and successful, and shortly afterwards a stock demand. It is as follows: “The plaintiff, dividend of $1.50 in stock of the City & Sub ha ving offered at the directors' meeting held urban Railway for each dollar paid into the October 5, 1898, the resolution which led security company was distributed among the to the passage of the resolution of the sublolders of the stock of the security company, sequent stockholders' meeting, read in eviafter the payment for certain services ren dence, thereby waived his right to insist dered to the company.

upon his claim to the 400 shares of stock in The appellant contends (1) that he was the City & Suburban Company, as his proequally liable as guarantor to the Baltimore portion of the compensation for the guarTrust & Guarantee Company, and that, un anty entered into by the defendants; the der the contract, he was entitled to share in condition contained in said last-mentioned the conipensation and profits; (2) that the resolution never having been complied with guarantors entered into a contract with him on the part of the defendants. And by to share the responsibility of the guaranty, this failure to make any demand during the and, in consideration thereof, promised to pay period of the responsibility of the defendants him; and (3) that the defendants have been under said guaranty, either upon the securipaid by the security company for their serv ty company or upon the defendants, for any ices, but have refused to pay him. The ap other measure of compensation for his unpellees, on the other hand, contend, as stated dertaking with them, he must be held to in their brief, that they never received any have acquiesced in the position of the de

fendants with respect to their compensation sion, recited such apportionment in a deed defor such guaranty; and, since the evidence signed to extinguish the ground rent.

3. The purchasers of the reversion attempted fails to show that the defendants have re

to extinguish the ground rent by an agreement ceived any compensation for said guaranty, with B., who had become the owner of the unthe plaintiff cannot recover in this action." divided interest not owned by the purchasers of

the reversion in the lots apportioned to meet the As to the question of waiver presented by

ground rent, and who was also the owner of all the prayer, we need only say there was a

the partitioned portion of the estate not owned question of fact to be submitted to the jury, by them, except certain lots which he and anand the court erred in assuming the fact.

other held as trustees. The agreement failed

to include as trustees either B. or his co-trus. McGrath v. Gegner, 77 Md. 339, 26 Atl. 502,

tee. Held, nevertheless, that the agreement ex39 Am. St. Rep. 415; Herzog v. Sawyer, 61 tinguished the ground rent on the lots held in Md. 354; Bollman v. Burt, Id. 422-423. trust, since by the partition deed the purchasThere was evidence tending to show that a

ers of the reversion were estopped to assert the

ground rent against any of the property except demand bad been made upon the defendants

that apportioned thereto, and since the whole under the contract of guaranty, and also interest in such apportioned property was in. evidence tending to show that the defend

cluded in the agreement. ants had received compensation for the guar Appeal from circuit court of Baltimore anty. These were material facts, and should

city: Pere L. Wickes, Judge. have been left to the jury. The plaintiff Bill by Thomas H. Rose and others against was clearly entitled to have the jury pass

T. Milton Jones. From a decree in favor of on facts of which contradictory evidence

complainants, defendant appeals. Affirmed. bad been given. There was error in grant

Argued before McSHERRY, C. J., and ing this instruction.

FOWLER, BRISCOE, BOYD, PAGE, This brings us to the consideration of

PEARCE, SCHMUCKER, and JONES, JJ. the plaintiff's prayers, which, with those offered on the part of the defendants, but not Parker & Staum, for appellant. Gans & considered by the court, cover 11 pages of

Haman, Vernon Cook, and Stuart S. Janthe record. We do not deem it necessary to

ney, for appellees. consider them seriatim, but think they were all properly rejected, under the circumstan McSHERRY, C. J. This case was comces of the case. Conceding that they sub menced by a bill in equity, which was filed mitted the correct theory of the plaintiff's to enforce specifically the performance of a case, they at the same time excluded from contract for the sale of a lot of ground lying a consideration of the jury the material in Baltimore city. The contract is admitted. facts relied upon by the defendants in sup- The purchaser refused to accept the title port of their defense to the action. These and to pay for the property solely because it prayers were misleading, as tending to em is alleged that the vendors are not the ownphasize certain portions of the evidence to ers of the fee, and it is insisted that they the exclusion of other evidence in the case, are not the owners of the fee by reason of and specially excluded and ignored the ques there being an outstanding ground rent chartion of waiver and other defenses made by ged upon the lot. The case was tried upon the defendants to the suit.

an agreed statement of facts. Circuit court For the reasons we have given, the judg No. 2 decreed that the purchaser should ment must be reversed, and a new trial forth with bring into court the purchase monawarded. Judgment reversed and new trial ej stipulated to be paid, and that the plainawarded, with costs.

tiffs should then convey the property to him. From that decree this appeal was taken.

Have the vendors a fee-simple title? If (36 Md. 483)

there is no outstanding ground rent on the JONES V. ROSE et al.

premises, they confessedly have such a title. (Court of Appeals of Maryland.

Jan. 22,

So the only question is, is there an outstand. 1903.)

ing ground rent on the property? That GROUND RENT-APPORTIONMENT BY LEASE

question must be solved by an examination HOLDERS-ESTOPPEL-MERGING OF of the various conveyances set out in the FEE-EXTINGUISHMENT.

record, and this is neither a very interest1. Where the owners in common of an estate subject to a ground rent partitioned the land

ing nor a very exciting task. Prior to the among themselves, leaving, however, certain lots year 1834 the leasehold estate in a parcel of undivided, the rental of which was specially ap. land lying in Baltimore city became vested propriated by the partitiou deed to the ground

in George and Peter Hoffman as tenants in rent of the whole estate, such appropriation, as between the parties and those claiming through common. The property was subject to twothem, exonerated the residue of the property ground rents,--the one created in 1775, for from the grouud rent.

£3 sterling; and the other in 1794, for £16 2. Where certain of the parties to the partitton deed subsequently purchased the fee or re

current Maryland money,--the two together version to the whole estate, the estoppel arising aggregating about $56. George Hoffman from the partition deed also bound them, as died in 1834, leaving a last will and testaowners of the reversion, from asserting that ment; and Peter Hoffman died in 1837, also any of the property except that specially appropriated thereto was subject to the ground rent,

leaving a last will and testament. In 1846 Especially when they, as owners of the rever the devisees of George and Peter partitioned

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