Chilcoat v. Reid

• Decision Date: 12 January 1928
• Docket Number: 70.
• Parties: CHILCOAT ET AL. v. REID ET AL.
• Court: Maryland Court of Appeals

140 A. 100

154 Md. 378

CHILCOAT ET AL. v. REID ET AL.

No. 70.

Court of Appeals of Maryland

January 12, 1928

Appeal from Circuit Court, Baltimore County, in Equity; Walter W Preston, Judge.

"To be officially reported."

Suit by Anna P. Chilcoat against Frank Reid and others. Exceptions to the auditor's account were filed by certain heirs of Edward P. Philpot and others. From the decree, certain of the exceptants appeal. Affirmed.

Argued before BOND, C.J., and URNER, OFFUTT, DIGGES, and PARKE, JJ.

Edward D. Martin, Clater Webb Smith, Ernest W. Beatty, and T. Lyde Mason, Jr., all of Baltimore (S. K. Smith, of Baltimore, on the brief), for appellants.

Daniel R. Randall, of Baltimore, for appellees.

OFFUTT J.

Edward Pickering Philpot, of Baltimore county, Maryland, on February 8, 1883, executed in due form his last will and testament, in which he undertook to dispose of his entire estate. The provisions of that will which are germane to the issues in this case are as follows "I give and devise to my dear wife Anna my farm whereon I now reside known by the name of 'Stamford' containing as pr record, about one hundred and ninety-six acres of land more or less and also a wood lot containing twenty-five acres more or less, being a part of a tract of land called Philpot's Enquiry adjoining the lands of Ephrian Harris and Willie Woolston during her natural life and from and after her decease, I give and bequeath the same to my nephew Brian Philpot who now resides in Chicago, Illinois. * * *

I devise and bequeath the residue of my estate both personal and mixed to my dear wife including household furniture etc., said bequest to be understood and considered as exclusive of her life estate as heretofore set forth and expressed in this my last will and testament."

On September 22, 1883, he executed also in due form a codicil to that will in the following form:

"Now, I, Edward Pickering Philpot, do will, devise and bequeath as follows, viz.: From and after the death of my dear wife, I give, will and bequeath to my nephew Brian Philpot, who now resides in Chicago the farm whereon I now reside, known by the name of 'Stamford' containing about one hundred and ninety-six acres of land, more or less, and also a wood lot mentioned in my said will and testament, said wood lot containing twenty-five acres of land more or less, and called 'Philpot's Enquiry,' provided the said Brian Philpot his heirs, executors, administrators or assigns pay to my great niece Lizzie Philpot now residing in Frederick county, Maryland, she being a daughter of my deceased nephew Edward Philpot, the sum of sixty dollars ($60.00) per annum during the lifetime of my dear wife, the first payment of said sum of sixty dollars to be made in May eighteen hundred and eighty-four, and so on in every year during the natural life of my dear wife, at whose death the payment of said annual sum of sixty dollars to my said niece Lizzie Philpot shall end and cease, as it may be ended and determined at any time by the payment of the sum of one thousand dollars to the said Lizzie Philpot by the said Brian Philpot, his heirs, executors, devisees or assigns."

After his death, which occurred in 1890, both the will and the codicil were admitted to probate in the orphans' court of Baltimore county, and on December 6, 1924, his widow, Anna (who after his death married Edward E. Chilcoat), filed a bill of complaint in the circuit court for Baltimore county, for the sale of the real estate described in the codicil, in which she named as defendants all the heirs at law of the testator and of Brian Philpot, and all persons claiming by, through, or under them, so far as they were known to her. The several defendants, who appear to be all the persons who have or could have any claim to the estate of the testator, answered the bill, admitted the jurisdiction of the court, consented to the passage of a decree for a sale of the real estate described in the bill, and reserved all questions concerning the construction of the will and codicil for determination by the court in connection with the distribution of the proceeds of any sale of the real estate which the court might direct. A decree was accordingly passed for the sale of the real estate, and Samuel K. Smith, Esq., and Daniel R. Randall, Esq., were appointed trustees to make the sale. In due course they qualified and reported a sale of the property at a price which left in their hands for distribution $13,388.46. That sale was ratified and the case went to the auditor, who filed an account distributing that fund to Anna P. Chilcoat, the widow of the testator. Exceptions to that account were filed, respectively, by certain heirs of Edward P. and Brian Philpot, and by certain persons claiming as creditors or legatees an interest in the fund, and after a hearing and testimony those exceptions were sustained, and the fund distributed to the heirs at law of Edward P. Philpot, subject to the life estate of Anna P. Chilcoat. From that order, certain of the exceptants appealed.

The case comes to this court upon the record facts which we have stated, upon certain other facts embodied in an agreed statement, and upon certain testimony given by Mrs. Chilcoat and Brian F. Philpot; but, before referring to those additional facts and that testimony, we will state the respective contentions of the several parties to the appeal.

Mrs. Chilcoat, as the widow of the testator, contends (1) that Brian Philpot has no interest in the land (a) under the will, because he failed to make the payments called for by the devise to him, or (b) as the heir at law of the testator, because (2) the heirs at law of the testator have no interest in it, since, upon the failure of the devise to Brian, the land fell into the residuum of the estate, and (3) passed to her under the residuary clause of the will.

The heirs of Brian Philpot claim (1) that distribution at this time is premature, since changes may occur, prior to the death of the life tenant, which will affect the devolution of the estate; (2) that, if the devise to Brian failed for any reason, the testator died intestate as to the estate in the land remaining after the life estate; but that (3) it did not fail, because, even though Brian did not make the payments called for by the codicil, they were made by his heirs, and that payment by them gratified the requirements of the codicil, since such payments could be made at any time during the life of the life tenant.

The heirs of Edward Pickering Philpot contend that, Brian Philpot having failed or refused to make the payments required by the codicil, the devise to him failed, that the testator died intestate as to the estate in the land remaining after the death of the life tenant, and that the land passed to his heirs at law. The personal representatives and legatees under the will of Elizabeth Philpot Joliffe, née Philpot, and certain legatees claiming under her will, contend that the devise to Brian did not fail, but vested in him subject to a charge in favor of Mrs. Joliffe, and that her personal representatives are entitled to enforce that charge.

In connection with these contentions the following facts, which are admitted, must be considered:

Edward Pickering Philpot, at the time of his death, left no child, nor any descendant of a deceased child, to survive him, but his next of kin and heirs at law were three sisters, Mary Philpot Frazier, Clara Philpot Merryman, and Elizabeth Philpot Blanchard, and two brothers, Brian Philpot, Sr., and John Philpot. Of these, Mary Ann Philpot Frazier died intestate, leaving neither husband nor issue, and of the others all died intestate, but leaving issue.

"Brian Philpot, named in the codicil to the will of Edward P. Philpot, refused to make the payments payable under said codicil; nor did Annie P. Lobdell, nor Emma P. Leeb, nor Albert D. Philpot, the children of said Brian Philpot, deceased, ever make said payments. * * * Elizabeth Philpot Joliffe (who is the same person as the Lizzie Philpot mentioned in said codicil to the will of Edward P. Philpot) died on December 25, 1923, leaving a last will and testament, duly probated in the surrogate's court of Bergen county, New Jersey, a copy of which will has been filed in the orphans' court for Baltimore county and in this cause; that the residuary devisees named in said will, namely, the Hackensack Hospital and the Church of St. John the Divine, are both parties to this cause; that James De Turck is the duly qualified executor of said last will and testament."

The testimony to which we have referred was given by Mrs. Chilcoat and Brian F. Philpot. Mrs. Chilcoat testified as follows:

"State whether or not you know of any payments having been made by Brian Philpot under the terms of said codicil. 4A. To the best of my knowledge and belief, Brian Philpot never made any such payments to Lizzie Philpot. Col. Philpot communicated to Brian Philpot the contents of said codicil, and I recall that Brian Philpot definitely refused to make the payments which the codicil provided should begin in May, 1884. Col. Philpot himself made one of the annual payments provided for by the codicil to his said will. To the best of my knowledge no one else ever paid to Lizzie Philpot any of the sums of money mentioned in said codicil."

And Brian F. Philpot, who was a son of Brian Philpot, Sr., testified:

That "his father, so far as he knew, never made any payments to Lizzie Philpot Joliffe under the will of Edward P. Philpot; that he [the witness] made several contributions to said Lizzie Philpot Joliffe." He also said that Mrs Joliffe's husband, Dr. Joliffe, was incapacitated as the result of an accident, and without means of support, and that he took care of them, contributed

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