Brillhart v. Mish

• Citation: 58 A. 28,99 Md. 447
• Parties: BRILLHART et al. v. MISH et al.
• Decision Date: 09 June 1904
• Court: Maryland Court of Appeals

58 A. 28

99 Md. 447

BRILLHART et al. v. MISH et al.

Court of Appeals of Maryland

June 9, 1904

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

Action by Mary C. Resh and others against George W. Brillhart and others for the partition of real property. A sale was had under a decree in favor of plaintiffs, and the purchaser Frank W. Mish, and another filed exceptions. From an order sustaining certain of the exceptions W.B. Brillhart and others appeal. Reversed.

Alexander Armstrong, Jr., and Norman B. Scott, Jr., for appellants.

A.C Strite, for appellees.

JONES J.

The appeal in this case is from an order of the circuit court for Washington county sustaining exceptions to a sale made under a decree of that court and setting aside the sale. The facts which give rise to the questions that are involved in the litigation are that Sarah J. Brillhart, of Washington county died in 1898, leaving surviving her her husband, John W Brillhart, a son, George William Brillhart, and a daughter, Mary C. Resh, the wife of Franklin D. Resh. She died intestate, seised and possessed of several parcels of real estate situated in Washington county, and of a farm in Berkeley county, W.Va. On the 18th of November, 1899, her surviving husband, John W. Brillhart, executed to one Samuel P. Angle a deed, in which it was recited: "Whereas the said John W. Brillhart has a life estate in six farms situated in Washington county, state of Maryland, and one farm in Berkeley county, West Virginia, by reason of his wife Sarah Jane Brillhart being the owner thereof, in fee, his wife having departed this life and children being born to them which are living. And whereas the said John W. Brillhart by reason of bodily infirmities, more particularly the loss of speech brought on by paralysis, and by reason of other bodily infirmities has become incapable of managing his large financial interests as they should be managed, both in the interest of himself as life tenant and of his children as remaindermen. And whereas it is the desire of said John W. Brillhart to make such arrangements of his affairs that they may be more properly managed under the direction and supervision of the court of chancery of Washington county. *** And whereas he reposes great confidence in Samuel P. Angle as a man of integrity and knowledge of the management of farms and of business affairs in general." It then granted and provided as follows: "In consideration of the premises and of the sum of one dollar ... the said John W. Brillhart does hereby grant and convey, transfer and set over unto the said Samuel P. Angle and to his successors as hereinafter provided, all that life estate in said farms, ... together with all crops now growing, garnered or in process of being gathered together with all choses in action, all cash in bank and all moneys owing to him from any source whatever, as well as every nature and description of estate, asset, chattel, or any other kind of property in interest whatever belonging to the said John W. Brillhart. To have and to hold said property, interest, and estate unto the said Samuel P. Angle, and to his successors as hereinafter provided, in trust and confidence nevertheless for the following purposes and uses, that is to say: First. To manage said farms as landlord, to the same extent, and as fully as if the said John W. Brillhart were managing said farms in person to make leases thereof to tenants, give notice to quit, to contract for the landlord's share of seed wheat and fertilizer and to do every other thing which is incumbent upon the landlord of a farm to do fully clothing the said Samuel P. Angle, trustee with all other powers in addition to those expressly enumerated which may be necessary for fully carrying out the purposes of this trust. Second. To gather the crops on said farms and market them at such times and places as may be most convenient and for the best interests of this trust. Third. To collect all moneys from any and all persons whatever who may be owing and to sue in his name as trustee and to do any and all things which may be necessary for *** collection and settlement of all claims owing to the said John W. Brillhart as fully as if he were doing it in proper person." It is further provided that the said Angle shall on the 1st day of January in each year, or within 15 days thereafter, make settlement in the circuit court of the county of all moneys received and expended by him, his report "to be under oath and subject to exceptions, as other accounts formerly stated by the auditor" of the court in chancery cases; that he shall pay to said Brillhart such sums during the year as may be necessary for his own comfortable maintenance, and shall expend for the personal benefit and comfort of said Brillhart, such other sums for medicines, medical advice, clothing, traveling expenses, etc., as he may require, not to exceed on the average $30 per month, but, if a greater sum be needed, it should be paid, but not until the end of the year, when the annual settlement is made in the circuit court--it being the intent "that all expenditures necessary for the comfortable maintenance and health" of the said Brillhart "shall be made in reason and without stint"; that the said Angle should give bond, etc.; that he should receive compensation for his services at the rate of 5 per cent. on expenditures and the same on his receipts; that the trust should be irrevocable, and should supersede all powers of attorney previously made. The said Angle agreed to accept the trust subject to the conditions and provisions set out in the deed, and to consult with the said Brillhart "and receive his advice about the management of farms, and endeavor to the fullest extent possible to adopt the views" of said Brillhart, "and have him co-operate with the said trustee"; but it was to be expressly understood the judgment of the said Angle should be always paramount. This deed was acknowledged and recorded. On the 12th of October, 1903, John W. Brillhart executed what was intended to be a revocation of the deed which has been referred to and recited. On the 17th of October, 1903, Mary C. Resh and her husband filed in the circuit court for Washington county a bill in equity alleging the death of Sarah J. Brillhart intestate and possessed of the real estate which has been mentioned; that she left surviving her John W. Brillhart, her husband, and two adult children, the said Mary C. Resh and George W. Brillhart; that the undivided interest of the said Mary C. Resh in the real estate left by the said Sarah J. Brillhart had been conveyed to her husband and coplaintiff, Franklin D. Resh, and that of the said George W. Brillhart to his wife, Iva M. Brillhart; that the said real estate was not susceptible of partition without loss and injury; and praying a decree for a sale of the same for the purpose of partition. To this bill John W. Brillhart and George William Brillhart and the latter's wife, Iva M. Brillhart, were made defendants, and were the only defendants. John W. Brillhart filed his separate answer thereto, admitting "all the matters and things" stated therein, and consenting to a sale, and that the lands should "be sold free of his interest as surviving husband, provided that he receive from the sale of said lands the amount of money allowed a surviving husband" by the equity rules of the court. George W. Brillhart and his wife filed their joint answer, admitting the allegations of the bill, consenting to a decree for sale, and agreeing that out of such of the proceeds of sale as might be distributed to the share of Iva M. Brillhart there might be paid "the liens existing against" the "respondents, or either of them, *** until they are wholly satisfied and discharged." A decree for a sale of the lands in question was thereupon passed. After the decree had been passed, certain judgment and mortgage creditors of Franklin D. Resh and wife and of George W. Brillhart and wife entered voluntary appearances in the cause and filed answers averring themselves willing that the lands decreed to be sold might be sold free of their liens, provided...