Busey v. McCurley

• Decision Date: 29 February 1884
• Citation: 61 Md. 436
• Parties: WILLIAM M. BUSEY, Ex'r of James McCurley, Jr. v. SUSANNAH S. McCURLEY. Felix McCurley and Henry Stockbridge, Adm'rs d. b. n. c. t. a. of James McCurley, and Others v. Susannah S. McCurley.
• Court: Maryland Court of Appeals

61 Md. 436

WILLIAM M. BUSEY, Ex'r of James McCurley, Jr. v. SUSANNAH S. McCURLEY.

Felix McCurley and Henry Stockbridge, Adm'rs d. b. n. c. t. a. of James McCurley, and Others

v.

Susannah S. McCurley.

Court of Appeals of Maryland

February 29, 1884

The cause was argued before Alvey, C.J., Stone, Miller, Robinson Irving, and Bryan, JJ.

Samuel Snowden, and Henry Stockbridge, for the appellants.

The ante-nuptial contract made between the appellee and the the testator was a contract between parties, both of whom were of sufficient age and capacity to comprehend its provisions. The legal effect of the contract was to bar the appellee from all claim to any interest in the estate of the testator, in case he died first, except "one dwelling-house," which she was to receive after his death; and to exclude the testator from any claim to her property. Such a contract has mutuality, and everything requisite to give it validity; and is legally binding upon both parties. Naill v Maurer, 25 Md. 532.

Their intention must be ascertained from the language used by them in the contract, and the fair import of its terms, without reference to any hardship that may fall on the parties, and some distinct meaning must, if possible, be given to every word in the contract; and the intention as expressed, unless contravening some rule of law, will be carried into effect. Slater v. Magraw, 12 G. & J. 265; Jones v Plater, 2 Gill, 125; Waters v. Griffith, 2 Md 326; Abbott v. Gatch, 13 Md. 314; Williamson v. Baltimore, 19 Md. 413.

The recital in the contract sets forth the intention of the parties shortly to solemnize a marriage, and they have agreed that certain estate, etc., belonging to Mrs. Stauter, should be conveyed in trust, and that after coverture she might dispose of the same as if she were a feme sole. Then follows a grant by the parties conveying all the property of Mrs. Stauter to John A. McFadden upon certain trusts set forth in the contract; then follows the clause wherein, "in consideration of the foregoing," etc., it was "covenanted and agreed that she should have one dwelling-house in lieu of dower," and should resign, and she did resign "all right, title or claim to dower or distributive share in the estate of the said James McCurley."

Each party, by this agreement, clearly intended to release the property of the other from all claim and demand on their part, while they lived, and when either had died, except that she should have one dwelling-house from his estate if she survived him. And they evidently thought that they had accomplished this, their intention. There was no intention on the part of either that she should receive this dwelling-house during his life-time, but contingent upon her surviving, at his death, and from his estate.

The contract does not give her an interest in any of his property during his life, but only at his death. As the contract was to be performed only at or after his death, and out of his estate, there was only one way in which it could be carried out and performed, and that was by the last will and testament of James McCurley.

The right of the appellee, and the obligation of Mr. McCurley; are clearly declared in the contract. He is bound to provide for her, and she is entitled to receive, "from said McCurley's estate, one dwelling-house," and the selection of that house is vested in him.

As therefore it was the agreement that the testator should give her "one dwelling-house," to be held by her absolutely, and as, at his death, he has given her what the contract demanded, she has no further claim against his estate. The marriage was consummated as intended. Mr. McCurley never made any claim to any interest in her property, and by his will, she receives the final consideration for the contract, as stipulated therein. The whole contract has thus been entirely fulfilled and performed by Mr. McCurley, and the appellee has, therefore, no claim upon his estate. There is no hardship in the fact--if it be a fact--that the dwelling-house which he left her had less pecuniary value than some other house which he owned, for she knew at the time she made the contract that he might do so, and as she was a person sui juris, she must be held to be bound by the terms of the contract, and it is too late, after the death of the other party to the contract, for her to make any other claim against his estate. Reddington v. Lanahan, 59 Md. 430.

The contract having been reduced to writing, and couched in plain and unambiguous language, must be treated as the exclusive medium of ascertaining the agreement by which the contracting parties bound themselves. Hutchins v. Dixon, 11 Md. 30; Bladen v. Wells, 30 Md. 577; Hough v. Ins. Co. 36 Md. 398; Dixon v. Clayville, 44 Md. 578.

Parol testimony, therefore, is inadmissible to alter, vary, or contradict its terms. The parol testimony was offered for the purpose of showing that at the time when the contract was made, it was also understood that the dwelling-house which the appellee was to receive from his estate was to be one afterwards to be built on Baltimore street. This testimony would change the tenor of the contract by inserting in lieu of the language used by the parties to the contract the words "situated on West Baltimore street," thus varying the contract.

The written contract is indisputably such as the contracting parties intended it should be. There is no omission to render it incomplete. It is such an one as the Statute of Frauds requires to be in writing, and testimony that would make it rest partly in parol, is clearly inadmissible. Moale v. Buchanan, 11 G. & J. 314; Frank v. Miller, 38 Md. 460; Purcell v. Miner, 4 Wall. 517; Semmes v. Worthington, 38 Md. 318.

It would also vary the terms of the original contract so that the court would be required to enforce a contract with a parol variation.

John H. Handy, for the appellee.

What kind of house, therefore, does the mere contract itself imply? Of what value? Manifestly that the thing accepted in lieu must have some reasonable relation to the thing given up. Besides, the husband by this contract and selection became the trustee for his wife. 2 Story's Eq. sec. 1231; Johnson v. Johnson, 40 Md. 197.

If the contract be incomplete, evidence may be offered not to contradict or vary, but to ascertain and make certain the subject-matter of agreement, and to prove any collateral independent fact about which the agreement is silent. Stockham v. Stockham, 32 Md. 196; Bladen v. Wells, 30 Md. 577; Paul v. Owens, 32 Md. 408; Basshor v. Forbes, 36 Md. 166.

The intent must govern, and this must be ascertained by a reasonable interpretation of the contract, under the circumstances connected with it, explanatory of its meaning and purpose. Abrams v. Sheehan, 40 Md. 446; Rayner v. Wilson, 43 Md. 442; Warner v. Miltenberger, 21 Md. 264.

It is competent to prove by parol a distinct subsequent agreement, waiving, abandoning or modifying the terms of the writing, or to prove an additional suppletory aggrement by parol, by which something is supplied that is not in the written contract. Andree v. Bodman, 13 Md. 241; Allen v. Sowerby, 37 Md. 420; Kribs v. Jones, 44 Md. 408; Ins. Co. v. DeFord, 38 Md. 402; Fusting v. Sullivane, 41 Md. 162; Fryer v. Patrick, 42 Md. 51; Creamer v. Stephenson, 15 Md. 212.

The appellee claims the right to a specific performance of the contract as determined by the parties themselves.

Here was a contract for a dwelling-house. If the contract is not so fatally void that it cannot be made certain, then no persons were more competent than the contracting parties to fill the omissions. The defendants claim that the husband alone had the right to designate and select the house; if that were so, it would certainly seem to follow that both of them together would have that right; certainly both were competent to do what one might do. There is no mode provided by the contract as to how or when the house is to be selected, or by whom. It might as well be selected in the joint life-time of the parties as after the husband's death. It was so selected and designated by both of them.

Whoever bought her husband's property after the record of the ante-nuptial contract, would have taken subject to the charge then created. But when they mutually agreed it should vest in and be measured by the property, 802 West Baltimore street, this general encumbrance was removed from the remainder of his property, and she at once had a vested interest in that property, contingent only on her surviving her husband.

This certainly must have been so as between the husband and his wife, and if binding on the husband, is binding on his devisees, and his donees under a voluntary conveyance.

It was beneficial to the husband to have the house designated and accepted by his wife, because it removed a cloud from the remainder of his estate, created by the recorded ante-nuptial deed, which was notice to the whole world. Hence there was this special consideration for the designation. If, then, the title had remained in him, the court would have gratified all the conditions of the case by decreeing a specific performance, and requiring the West Baltimore street house to be conveyed to the appellee. But the deed of gift to Mrs. Reed has intervened, and the legal title was not in the testator when he died. Now we do not suppose a voluntary gift to his daughter can affect the appellee's rights. The voluntary devisee takes subject to all equities between the donor and others. 2 Story's Eq. sec. 1231; Johnson v. Johnson, 40 Md. 190; Owens v. Wheeler, 1 Md. Ch. 120; O'Brien v. Pentz, 48 Md. 562.

A contract to devise real estate, if shown to be in all respects fair, just and reasonable, founded on sufficient consideration, and...