Clark v. Tennison

• Decision Date: 30 June 1870
• Citation: 33 Md. 85
• Parties: JOHN T. CLARK and Mary A. Clark, His Wife, Executrix of W. H. Tennison, Deceased, v. FRANCIS J. N. TENNISON, By His Next Friend, Warfield T. Browning. JOHN T. CLARK v. FRANCIS J. N. TENNISON, By His Next Friend, Etc. JOHN T. CLARK v. FRANCIS J. N. TENNISON, By His Guardian, Etc.
• Court: Maryland Court of Appeals

33 Md. 85

JOHN T. CLARK and Mary A. Clark, His Wife, Executrix of W. H. Tennison, Deceased, v. FRANCIS J. N. TENNISON, By His Next Friend, Warfield T. Browning.

JOHN T. CLARK v. FRANCIS J. N. TENNISON, By His Next Friend, Etc.

JOHN T. CLARK v. FRANCIS J. N. TENNISON, By His Guardian, Etc.

Court of Appeals of Maryland

June 30, 1870

The cause was argued before BARTOL, C.J., BRENT, MAULSBY and ALVEY, JJ.

E G. Kilbourn and Levin Gale, for the appellant.

No merger took place by reason of the purchase of the husband of the reversion in his wife's leasehold estate--and there is nothing to show that anything from said property came to the hands of the guardian. Act of 1853, ch 245; Code, Art. 45; Schindel v. Schindel, 12 Md 121, 312; Lawes v. Lumpkin, 18 Md. 334; Pool v Morris, 29 Ga. 374; Goode v. Longmire, 35 Ala. 668; Stall v. Fulton, 1 Vroom, (N. J.) 430; Jones v. Davies, 5 Hurl. & Nor. 766 and 7 Hurl. & Nor. 507; 1 Coke Litt. 328; Gage v. Acton, 1 Salk. 326; Cro. Eliz. 712; Preston on Merger, 276, 277, 309.

The will of William H. Tennison did not operate to pass any interest in the residue of his estate between the marriage of his widow and her death, and therefore as to such property he died intestate, and the estate must be distributed without regard to the will.

R. J. Brent and M. A. Mullin, for the appellee.

The testator gave his wife, in as express terms as possible, an estate during widowhood only. His intention was clearly to deprive her of all benefit after her marriage. But he has, by inadvertence, failed to limit his estate over, after her marriage, but has limited it to his children at her death. It is, therefore, clear that the children were the primary objects, after giving her the preceding estate.

The rule is to favor the primary objects by construction to aid their claim. Hence, in favor of the primary objects, the court will supply words, limiting the contingency of their dying without issue living at the time of the death, so as to make the contingency occur during the time of a precedent estate. Barker v. Cocks, 6 Beav. 82; Galland v. Leonard, 1 Swanst. 161; Edwards v. Edwards, 15 Beav. 360.

Words will be supplied where necessary to carry out the apparent intent, and here words must be supplied so as to make the limitation over take effect "at her death or marriage." 1 Jarman on Wills, 427 a, and notes, 431.

A limitation during widowhood is valid even if there be no limitation over. Morley v. Rennoldson, 2 Hare, 579.

This last case very clearly distinguishes between a limitation and a condition, and shows that "if the gift is until marriage and no longer, there is nothing to carry the gift beyond the marriage." See also 10 E. L. & Eq. 143; Commonwealth v. Stauffer, 10 Barr, 350.

At common law a husband acquired the right to all the personal property of his wife, including her chattels real, and with them he could do what he pleased; he might sell, assign or mortgage the same without his wife's consent. 2 Kent, 134, 135.

Tennison, in fact, reduced this property into possession. He made it his residence and purchased the reversion. Thus the leasehold and the fee uniting in the same person, although the one jure mariti, the other by purchase, there was a merger and Tennison became seized in fee, of the entire property. 4 Kent, 101, 102; Coke upon Litt. 556, ( H.) 54, (b.) 338, b; 3 Preston on Conveyancing, 43-49, 294, 295, 306, 307-309; 6 Cruise's Digest, 480, (Greenl. Ed. 570); 2 Sug. on Vendors, 230.

These common law rights of the husband were not taken away by Statute till the adoption of the Code, long after all the rights in this case became vested. Michael v. Baker, 12 Md. 158; Schindel v. Schindel, 12 Md. 294, 313; Bridges v. McKenna, 14 Md. 268.

Bartol C.J., delivered the opinion of the court.

These appeals have been argued together, and may be disposed of in one opinion.

The appeals of John T. Clarke are:

1. From an order passed on the 17th of April, 1869, removing him from the guardianship and appointing another guardian in his place.

2. From an order of the 20th of September, 1869, rejecting the second guardian account exhibited by him, and sustaining the exceptions thereto.

3. The appeal of Clark and wife is from an order of the 17th of April, 1869, rejecting the third administration account of Mary Ann Clark as executrix.

In the argument of the cases in this court the appeal from the order removing the appellant Clark from his guardianship was abandoned, that order will therefore be affirmed.

The principal questions presented by the other appeals are:

1st. The question of merger.

2nd. The construction of William H. Tennison's will.

The question of merger arises in this way:

On the 31st of July, 1853, the testator, William H. Tennison, intermarried with Mary Ann Hoshall, who, at the time of the marriage, owned and possessed a house and lot on Charles street in the City of Baltimore, for a term of ninety-nine years renewable, subject to a ground rent of $45 per annum. Afterwards, on the 8th of April, 1854, William H. Tennison purchased the reversion in the property, and during the coverture he and his wife occupied the same.

It is contended on the part of the appellee, that the effect of the purchase of the reversion by Tennison was to merge or extinguish the term, and to vest in him the whole fee simple. Merger is where two different estates in the same land exist in the same person at the same time, and the less estate is merged into the greater; as a term of years into the freehold, because the two estates cannot coexist in the same person.

On this head of the law a good deal of subtlety and refinement may be found in the decisions--and the rules laid down by the courts, and by eminent text writers, have not always been consistent. The truth of this observation will appear by reference to Preston on Conveyancing, in 42 Law Lib., especially to ch. 12, beginning at page 273 m., and the cases there cited. An examination of these has brought us to the conclusion that the general rule laid down in 1 Bl. Com. 177, " That the estates must come to one and the same person, in one and the same right," is subject to exceptions, and that at the common law merger might take place in some cases where the two estates are held in different rights.

It is suggested by Mr. Preston, as a rule deduced from the authorities, that "if a husband possessed of a term in right of his wife, purchase the immediate reversion, the term will be annihilated; for the purchase was the express act of the husband and amounts to a disposition of the term"--(pages 295 m., 305 m.) While the rule is supposed to be different, where the accession of the freehold to the husband, is by the act of law and not by the direct act of the party. These rules are stated with approbation in 4 Kent, 101 m., and it may be conceded, that they are supported by many adjudged cases; but some doubt has been thrown upon them by very high authority. In Gage v. Acton, 1 Salk. 325, Lord Holt said, "if a man hath a term in right of his wife, or as executor, and purchases the reversion, this is no extinguishment, because he hath the term in one right and the reversion in another." And in 3 Term, 461, ^[a1] Lord Kenyon said, "generally, without any distinction, nothing is clearer than that a term taken alieno jure is not merged in a reversion acquired suo jure."

We refer also to the opinion of Hobart, C.J., in Young v. Bradford, Hob. 3; and to the observations of Pollock, C. B., on this subject, in Jones v. Davies, 5 Hurl. & Nor. 767, as tending to show that the rules stated by Preston and Kent have not been universally followed. Conceding, however, that they are correct, and that according to the weight of authority, the purchase of the reversion by Tennison would operate at the common law to merge and extinguish the term; what was its effect under the laws of Maryland?

The marriage took place, and the purchase of the reversion was made after the passage of the Act of 1853, ch. 245. That Act by its first section protected the leasehold estate of Mrs. Tennison from the debts of her husband, and declared that it should not in any way be liable for the payment thereof.

The second section provided that "in order to effect the objects of the foregoing section, the wife should have the benefit of all such remedies for her relief and security, as now exist or may be devised in the courts of law or equity."

That Act came up for construction in Schindel v Schindel, 12 Md. 121, 312, in which the contest was between husband and wife as to the right of possession and custody of her property, real and personal, during the coverture; it was held that the Act did not operate to vest in the wife the sole and separate estate in her property; but left it...