Benesch v. Clark

• Decision Date: 23 July 1878
• Parties: ISAAC BENESCH v. EDWARD J. CLARK and Tyson Bramble, Administrators d. b. n. c. t. a. of Nathan Bramble.
• Court: Maryland Court of Appeals

49 Md. 497

ISAAC BENESCH v. EDWARD J. CLARK and Tyson Bramble, Administrators d. b. n. c. t. a. of Nathan Bramble.

Court of Appeals of Maryland

July 23, 1878

Appeal from the Orphans' Court for Baltimore City.

The case is stated in the opinion of the court.

The cause was argued before BARTOL, C.J., STEWART, GRASON MILLER, ALVEY and ROBINSON, JJ.

Richard J. Gittings and W. Burns Trundle for the appellant.

As to the two lots the title to which is the subject of dispute in this case, being leasehold, and there being, as to them, no limitation over at the death of Mary Bramble, the case presents simply a devise of the same to the wife, "to be disposed with as she sees fit, at her decease." It is an estate "to a person generally with a power of disposition superadded;" and under this will, the whole of the unexpired term in these two lots vested absolutely in the wife. Jackson v. Robins, 16 John. 537; Goodtitle v. Otway, 2 Wilson, 6; Bradley v Westcott, 13 Ves. 453; Jackson v. Coleman, 2 John. 391; Doe v. Lewis, 3 Ad. & El. 123; Swope v. Swope, 5 Gill, 225; 1 Sugden on Powers, 124; 4 Kent, 536.

The distinction, though a nice one, is well settled between such a case as this, and where the testator gives an estate for life only, by certain and express words, and annexes to it a power of disposal. Jackson v. Robins, 16 John. 588; Tomlinson v. Dighton, 1 Salk. 239; 1 P. Wms. 149; Crossling v. Crossling, 2 Cox, 396; Bradley v. Westcott, 13 Ves. 453.

The technical rule laid down in the books, under which the wife takes the whole estate of the testator in the leaseholds on Monument street, they being devised to her generally, with a general power of disposition annexed, accords with the general intent of the testator, apparent upon the whole will. The fact of imposing limitations over upon all the other lots, after the death of his wife, thus taking away from her the right to dispose of any of those, coupled with the omission of any such limitation as to these two on Monument street, and the general terms in which the jus disponendi is couched, furnish pregnant evidence of his intention to give her this property absolutely.

The general intent, even though first expressed, overrides the particular intent of any clause. Chase v. Lockerman, 11 G. & J. 206; Thompson v. Young, 25 Md. 459.

The rule above stated would seem to be still broader when applied to personalty than in case of realty. Where a legacy is given to one for life, with a general power of appointment by deed or will, an absolute power of disposition is vested in the legatee, and any act indicating the intention of the legatee to dispose of it is sufficient to effect that purpose. Irwin v. Farrer, 19 Ves. 86; Barford v. Street, 16 Ves. 135.

If, then, Mary Bramble took, under the will, the entire interest of the testator in the leaseholds on Monument street, she could, of course, dispose of them by any appropriate mode of alienation. The deed of March 12th, 1874, conveyed to Hall the whole term in No. 230, and no title was ever in the appellees.

Should the court think that the testator gave to his widow merely a life estate, with a power of disposition annexed, yet it is submitted that such power being general, is well executed either by deed or by will. 4 Kent, 331-4; 1 Sugden on Powers, 244-6.

Do the words "at her decease" Ex vi termini import a power of testamentary disposition only? That they do not is shown by Anonymous, 3 Leon. 71; Tomlinson v. Dighton, 1 P. Wms. 149; Ex parte Williams, 1 Jac. & Walk. 89; 1 Sugden on Powers, 257.

Is then the deed of March 12th, 1874, a valid exercise of the power of disposition vested in the grantor under the will, supposing that she took but a life estate in the Monument street property, with a power of disposition annexed? This is chiefly a question of intention.

It is submitted, that even if Mary Bramble took a life estate only under the will, with the power of disposing of the term added, then she intended to and did validly exercise that power by executing the deed to Hall. Mory v. Michael, 18 Md. 241; Cooke v. Husbands, 11 Md. 492; Bennett v. Aburrow, 8 Ves. 616.

Thales A. Linthicum, for the appellees.

Under the last will and testament of Nathan Bramble, his wife, Mary Bramble, was entitled to all his property, for her life, provided she remained a widow, and did not marry again after his death; and as to that portion of said property known as the two houses and lots on Monument street, Mary Bramble had the power to dispose of the same at her decease; she could not make such disposition otherwise than by last will and testament, or by deed conveying the property by way of remainder, after, and subject to, the life estate of Mary Bramble, or by conveying the reversion of the life estate.

There is nowhere in the will a grant of a general power of disposition over the Monument street property, to be exercised in any way, either by deed or will, by the donee; but the words and obvious intent of the testator confine the exercise of the power to such modes only as would pass the title upon the decease of the donee of the power. The deed to Hall, if good for any purpose, took effect immediately upon its execution and delivery, and stripped from Mrs. Bramble all right and title to the property, and such being its effect, the very object the testator had in making his will, i. e., to provide for the benefit, maintenance and comfort of his wife during her life, was defeated.

But it was claimed by the appellant below, that Mary Bramble had, under this will, the right to sell and dispose of this property, by deed or by will, and that the deed to Hall was a good execution of the power of disposition. But, as above stated, this deed cannot be upheld as a mode of conveyance under the power, because it does not convey the property except absolutely. It cannot be treated as conveying an estate to take effect upon the death of Mary Bramble, preserving, in the meantime, the life estate; nor as a covenant to stand seized to the use of Mary Bramble for life, and after her death, for the use of Hall.

In Tomlinson v. Dighton, 1 Salk. 239, the testator devised to his wife for life, and then to be at her disposal to any of her children who may be then living. The wife and second husband, by lease and release, convey the property to another, for the use of the wife for life,--remainder to her daughter, and the heirs of her body, remainder to her son, etc.

The court held that the wife did not take a fee, but only an estate for life, with power to dispose of the inheritance. Doe v. Thorley, 10 East, 438; Anonymous, 3 Leon. 71, cited in 1 P. Wms. 153; Tomlinson v. Dighton, 1 P. Wms. 149; Grant v. Iron Co. 93 U.S. 326; Leake v. Bennett, 1 Atk. 470; Cole v. Rawlinson, 1 Salk. 234.

Alvey J., delivered the opinion of the court.

Nathan Bramble, of the City of Baltimore, died in 1847, and by his last will and testament, made a short time before his death, he gave and bequeathed to his wife, Mary Bramble, provided she remained unmarried, a house and lot of ground on North Gay street, in said city, with all the improvements thereon; also two houses and lots on the north side of Monument street, with the improvements attached; also a house and lot on Fayette street; also a house and lot on Edward street, "and the two houses and lots on Monument street to be disposed with as my said wife sees fit, at her decease; and also I give and bequeath unto my said wife, all my property real, personal and mixed, of every description, debts and demands, due to or in anywise belonging to me, she, my said wife, to have and to hold all the same, for her benefit, maintenance and comfort, during her life."

By subsequent clauses in the will, the house and lot on North Gay street, and also those on Fayette and Edward streets, are devised, such devises to take effect after the death of the wife, the devisee for life; but there is no such specific disposition of the two houses and lots on Monument street. These clauses of the will are followed by a general provision, that if the wife should marry, then all the gifts and bequests to her were to be null and void, and she was to take her one-third of the estate, and no more; and the other two-thirds, in that case, were otherwise disposed of. The wife was appointed sole executrix of the will, and she administered the estate; and without ever having married again, she died in 1877. She made no attempt to dispose of the houses and lots on Monument street by last will and testament; but one of those lots, No. 230 East Monument street, being leasehold, and held under a renewable lease, she, by deed of assignment, dated the 12th of March, 1874, assigned and conveyed to Charles H. Hall; and in the deed of assignment she refers to her husband's will, as the source of her title and right to convey. The assignment conveys the entire residue of the unexpired term, with the right and benefit of renewal, from time to time, forever. Immediately after the death of Mrs. Bramble, Hall, the assignee of the term, entered, and still holds possession of the premises.

After the death of Mrs. Bramble, letters of administration de bonis non cum testamento annexo were granted to the appellees in this case; and upon the assumption that neither of the lots on Monument street had been legally disposed of by Mrs. Bramble, the appellees, under the authority of the Orphans' Court, advertised, and, on the 30th of July 1877, sold lot No. 230 to the appellant. The sale was reported, and the appellant excepted to the report, upon the ground that the appellees could make no valid title...