Fulton v. Harman

• Decision Date: 07 March 1876
• Parties: JOSEPH FULTON and ELIZABETH, his Wife, and others v. WILLIAM H. HARMAN and NELSON D. RAMSBURG and ELIZA ANN, his Wife.
• Court: Maryland Court of Appeals

44 Md. 251

JOSEPH FULTON and ELIZABETH, his Wife, and others v. WILLIAM H. HARMAN and NELSON D. RAMSBURG and ELIZA ANN, his Wife.

Court of Appeals of Maryland

March 7, 1876

APPEAL from the Circuit Court for Frederick County, in Equity.

The amended bill of complaint in this case, filed by the appellees, charged that they had theretofore filed their bill of complaint in the Circuit Court for Frederick County, in equity, against a certain Joseph Fulton, Daniel J. Snook and Henry Metcalfe, for the appointment of a trustee in the place and stead of George Harman, deceased, and Christian Harman who declined to make sale of certain real estate therein specified, as devised and bequeathed by a certain Christian Harman, deceased, to his wife, Mary, for her life, and on her death to his son, George Harman, for his life, and on his death to be sold by his executors, the said George Harman and Christian Harman, therein named, and the proceeds to be equally distributed among all the lawful heirs of the said George Harman, and for an injunction against the said Joseph Fulton, to enjoin and restrain him from cutting timber and committing waste on said land claimed by him under a deed of conveyance from Daniel J. Snook, and afterwards conveyed by the said Joseph Fulton to the said Daniel J. Snook by deed of mortgage, and again conveyed by the said Joseph Fulton to the said Henry Metcalfe by absolute deed of conveyance. By way of amendment to their aforesaid original bill, the complainants charged that the said Henry Metcalfe and wife, by their deed of the 27th of November, 1861, did convey said tract of land hereinbefore specified to Elizabeth Fulton; and the said Elizabeth Fulton, by said deed of conveyance obtained only an estate in said land and premises for and during the life of the said George Harman, and that said estate and interest of the said Elizabeth Fulton, terminated with the life of the said George Harman on the 25th July, 1862; and the complainants charged that the said Elizabeth Fulton, by herself, agents, workmen and employés, had been cutting, and was still engaged in cutting and destroying the timber on said land and hauling and carrying away the same, contrary to the right and to the irreparable injury of the said land, and of the complainants and the other devisees of the said land and that the said Elizabeth Fulton was therefore a necessary party to this suit.

Subp nas were prayed against Joseph and Elizabeth Fulton, Henry Metcalfe and Daniel J. Snook, and a writ of injunction against Elizabeth Fulton enjoining and strictly prohibiting her, her agents, hirelings and employes from committing waste and cutting timber on the tract of land specified and described in the original bill, and from removing the timber cut by her on said land since the death of the said George Harman.

With the bill was filed a copy of the will of Christian Harman deceased, which for the purposes of this case is sufficiently set out in the opinion of this Court. The injunction was issued as prayed.

The defendants Joseph and Elizabeth Fulton answered the bill. They admitted the death of George Harman. They charged that the complainants were not entitled to the three hundred acres of land in dispute, but that the said land was the absolute estate in fee-simple of the defendant Elizabeth, and that she was in the lawful possession thereof, using, occupying and claiming the same as her estate, free of any right or claim of the lawful heirs of the said George Harman, deceased. The respondents admitted that George Harman took the benefit of the insolvent laws of Maryland, and that the land in question was sold under an order of the Circuit Court for Frederick County, by the trustees of the said insolvent, and conveyed to certain W. A. Bennett, H. Rouzer and F. White, their heirs and assigns as tenants in common. It was under this sale and deed, through several mesne conveyances, that the respondent Elizabeth claimed title to the land in question. The respondents denied and excepted to the jurisdiction of the Court, as a Court of equity, to try and decide the title to the land in dispute between the parties claiming title thereto. They prayed that the injunction might be dissolved and the bill dismissed.

The defendant Daniel J. Snook also answered the amended bill. He admitted that he purchased from W. A. Bennett and wife, H Rouzer and wife, and F. White and wife, the three hundred acres of land in question, and that the same was conveyed to him by deed of the 4th of March, 1859; he alleged, that at the time he purchased and received the deed of conveyance, he supposed that he was purchasing said estate as an absolute estate in feesimple, and that he sold and conveyed the same to the defendant Joseph Fulton, supposing he was conveying an estate in fee-simple.

Whether any proof was taken in the case did not appear from the record. The Court, on the 11th of April, 1874, passed a decree making the injunction previously issued, perpetual and appointing certain persons trustees in the place of George and Christian Harman, the executors, to make sale of the said tract of land, of about three hundred acres, and to carry out the trust in relation thereto, created by the will of the testator, Christian Harman.

From this decree the defendants appealed.

The cause was submitted on briefs to BARTOL, C.J., STEWART, GRASON, MILLER and ALVEY, J.

Wm. P. Maulsby, Jr., for the appellants.

What is in dispute, and is sought to be adjudicated in this case? Is it not perfectly clear and indisputable, that the title to the tract of land mentioned in the will, as devised to the testator's wife for life, and then to his son, George Harman, is the very and only question sought to be settled? That legal title is either in Elizabeth Fulton, as she claims, in Christian Harman, or the trustees appointed in his place, in trust to fulfil the objects of the testator's will, or in the heirs-at-law of George Harman. Is not the trial by ejectment in the common law Courts, the proper method of adjudicating upon this very question of title? Elizabeth Fulton is in possession, claiming and setting up title, Christian Harman, executor, seeks to get possession to sell the property. Why should he not pursue the method of ejectment in the common law Courts? Upon what principle of law or equity is he entitled to have the assistance of a Court of equity while he has his remedy in a Court of law? It cannot be contended, that the object sought, is to make a sale, and leave the question of the right of possession to be contested between the said Elizabeth Fulton and the purchaser, in an action of ejectment.

The relief prayed for ought not to be granted, because the land in question is the property in fee-simple of the defendant, Elizabeth Fulton, and the complainants have no interest in the same.

The title of Elizabeth Fulton is founded upon the proposition, that the devise to George Harman, vested in him a fee-simple estate. The devise is the same in substance and effect, as if the words, the "proceeds thereof" had been omitted. The intent and object undoubtedly was to devise the whole estate in the same manner, as if the said words had not been used, and the remaining words are unaffected in their interpretation, whether as words of limitation, or purchase by their presence.

It can scarcely be denied, we think, that had the clause in the will ended with the words "between all his lawful heirs," that the estate conveyed by the will to George Harman, would have been an estate in fee-simple under the rule in Shelley's Case. Do the succeeding words make the rule inapplicable? See Preston on Estates, 271, 277, 282, 326. Are the words used in the devising clause sufficiently clear, certain and precise to demonstrate,--not make likely or probable,--that the words all his lawful heirs, were not used as their legal sense imports as words of limitation, but were used as words of purchase, intending to designate some particular persons? It occurs as a first question, if the latter meaning is demonstrated, who are the particular persons? Not necessarily his children, because all such might have deceased without issue, before the death of George Harman, the life tenant. Again, there is nothing in the provision, that the devises or bequests before made should be equalized, which would not apply as well to the other devisees, as to the children of George Harman. Any of the brothers and sisters, or representatives of such, of George, might have the benefit of said clause, in the event of their being his heirs at the time of his death. The second clause of the will devises to Mary Ann Harman, a daughter of the testator's son, William, a sum of money which would afford a subject for equalization in the contingency supposed. The words following the devise to the lawful heirs of George Harman, the life-tenant, are not sufficient of themselves to control the only words of limitation of the estate which the will contains, and which make the case at bar, a subject for the application of the rule in Shelley's Case. In brief, the testator devised and intended to devise to George, and his lawful heirs, the whole residue after the moneyed legacies mentioned; and in so doing, he used such words, as amount to a conveyance in fee-simple to George, and there are no words in the will indicating to the extent of a moral certainty, or as the authorities express it, to the extent of a demonstration, that the words lawful heirs were used in any other sense, than its technical and legal one. The rule in Shelley's Case is recognized as the law of Maryland, whether for the interpretation of deeds or wills. Lyles vs. Digges, 4 H. & J., 431; 6 H. & J., 364; Griffith vs. Plummer, 32 Md., 77.

The bill does not present a case...