Booth v. Eberly

• Decision Date: 26 June 1914
• Docket Number: 46.
• Citation: 91 A. 767,124 Md. 22
• Parties: BOOTH et al. v. EBERLY et al.
• Court: Maryland Court of Appeals

91 A. 767

124 Md. 22

BOOTH et al. v. EBERLY et al.

No. 46.

Court of Appeals of Maryland

June 26, 1914

Appeal from Circuit Court, Washington County, in Equity; M. L Keedy, Judge.

Suit between Harriet Booth and others and Charles A. Eberly and others for sale of land. From the order confirming the sale the purchasers appeal. Affirmed.

J. A Mason, of Hagerstown, for appellants. Elias B. Hartle, of Hagerstown (Hartle & Wolfinger, of Hagerstown, J. R Ruthrauff, of Chambersburg, Pa., and H. H. Spangler, of Mercersburg, on the brief), for appellees.

URNER J.

This is a proceeding, under article 16, § 137, of the Code, for the sale of real estate and division of the proceeds among the owners, on the ground that it is not susceptible of partition without loss and injury. The property consists of a valuable farm in Washington county which was formerly owned to the extent of an undivided six-sevenths interest by Andrew R. Schnebly, and to the extent of one-seventh by Harriet Schnebly, his wife. Both have died testate, and all the persons who may be entitled, under the respective wills, to interests in the real estate are parties to the present suit. A decree having been passed for the sale of the property, it was purchased by several of the parties to the cause, and their exceptions to the ratification of the sale have raised the question we are to consider.

The will of Harriet Schnebly, who died in 1888, devised her interest in the farm, as part of the residue of her estate, to her executor in trust to pay one half of the income therefrom to her husband for life and the other half to her son, Daniel Hoke Schnebly, and disposed of the remainder as follows:

"From and after the death of my beloved husband all of said trust estate to go to my said son, Daniel Hoke; but if my said son, Daniel, should die without leaving issue living at the time of his death, then subject to the life interest in the income payable to my husband, I give, devise and bequeath the said residuary estate to my nephews and nieces,--the children of my sisters, including those of my half-sisters, and should any of my nephews and nieces be dead, leaving children to survive them, such child or children shall take its deceased parent's share."

Andrew R. Schnebly survived his wife until 1913 when he died, leaving a will by which he devised and bequeathed his property, after a life interest, which has expired, and certain specific bequests, to four designated persons in equal shares absolutely. In the interval between the deaths of the husband and wife their son Daniel died intestate, unmarried and without issue, and leaving no brothers or sisters either of the whole or half blood. The bill was filed by a nephew and a grandnephew of Harriet Schnebly, and the parties defendant include the other persons belonging to the class of contingent remaindermen described in the residuary clause of her will, and also the devisees under the will of her husband, some of whom have since become the purchasers of the property decreed to be sold. The objection urged to the sale is that the plaintiffs who filed the bill have no interest in the subject-matter of the suit, and that the court was therefore without jurisdiction to pass the decree. It is contended that upon a proper construction of the will of Harriet Schnebly the event upon which the contingent remainder to her nephews and nieces or their children depends was the death of the son Daniel without issue in the lifetime of the testatrix, and that as he lived beyond that period, the estate devised to him became indefeasibly vested in him, and upon his death intestate, unmarried, and without leaving issue, brothers or sisters, his interest in the property was inherited by his surviving father, and passed under the will of the latter to his devisees. The court below overruled the exceptions and ratified the sale on the theory that, according to the intention of the testatrix, as plainly shown by the terms of her will, the residuary estate was to vest in remainder in the nephews and nieces, or their children, in the event of the death of Daniel Schnebly at any time prior to the expiration of the preceding life estate of his father. With this view we fully agree.

The language of the will is not obscure or ambiguous, and the intention of the testatrix is capable of being readily ascertained. After placing the residuary estate in trust for the equal benefit of her husband and son during the life of the former, she directs that "from and after" the husband's death the trust estate as a whole shall go to the son; but "if he should die without leaving issue living at the time of his death, then, subject to the life interest in the income payable" to the husband, the estate shall go to the nephews and nieces, and should any of the latter "be dead leaving children to survive them," the children shall take the "deceased...