Hohman v. Hohman

• Decision Date: 20 April 1933
• Docket Number: 40.
• Citation: Hohman v. Hohman, 164 Md. 594, 165 A. 812 (Md. 1933)
• Parties: HOHMAN ET AL. v. HOHMAN ET AL.
• Court: Maryland Court of Appeals

165 A. 812

164 Md. 594

HOHMAN ET AL. v. HOHMAN ET AL.

No. 40.

Court of Appeals of Maryland

April 20, 1933

Appeal from Circuit CourtNo. 2 of Baltimore City; H. Arthur Stump Judge.

Suit by John J. Hohman and others against Charles G. Hohman and others.From an adverse decree, plaintiffs appeal.

Affirmed.

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

David Ash and Philip E. Wolfe, both of Baltimore, for appellants.

J Morfit Mullen and R. Contee Rose, both of Baltimore (Walter H. Buck, of Baltimore, on the brief), for appellees.

ADKINS Judge.

In this casea bill was filed by the children of John J. Hohman, a deceased son of Henrietta Hohman, against the executors of her will, and all the beneficiaries thereunder other than the plaintiffs and a deceased daughter for whom her executor is substituted.

The said testatrix in the fourth clause of her will set out the real and personal property owned by her and valued each item "for the purpose of making division of my estate among my nine children as hereinafter provided."

In the fifth clause she authorized and directed her executors "to appraise the whole of my estate, real and personal not herein specifically bequeathed, the values of the properties mentioned in the Fourth clause hereof shall control as to those, all other properties shall be valued at the then market value.After they have appraised the same, I authorize and direct them to divide the same into nine equal parts, one of which, I give, devise and bequeath unto each of my nine children, John J., Charles G., George A., Conrad P., Henry J., Frederick William and Franklin C. Hohman, Elizabeth E. Orem and Clara V. Keller, absolutely.

"In making the division of my estate I direct that the properties 2026, 2032, 2038 and 2040 E. Monument Street factory, plant and lot of ground northeast corner of Monument and Castle Streets, wood lot southeast corner of Monument and Castle Streets, four stalls in Belair Market and three stalls in North East Market, shall be allotted to my said sons, John J., Charles F., George A. and Conrad P. Hohman at the valuation of $100,000.00; if their combined four shares of my estate shall not amount to that amount after charging them with any debt, loan or advancement I may have made them, and with any sums of money my estate may have paid to them by reason of my endorsement or guarantee, I authorize and direct my executors to accept from my said four sons a mortgage on said properties devised and bequeathed them for the difference between said sum of $100,000.00, and the net value of their four shares; said mortgage to be for ten years and bear interest at the rate of five per cent. per annum.Any mortgage taken by my executors under the aforesaid power shall become part of the residue of my estate and divided as hereinbefore directed among my other children."

In the sixth clause she appoints her son John J. Hohman and her daughter Elizabeth E. Oremexecutors without bond, and provides that: "For the purpose of carrying out the provisions of this my last will and testament, after said executors shall have valued and divided the residue of my estate and property as herein directed, I authorize and empower them to execute and deliver deeds to my said children of their respective shares so that each shall hold in severalty.I also authorize and empower my said executors to make sales of such parts of my estate, real and personal, as in their judgment shall be necessary to fully carry out the provisions hereof, after such sales have been reported to and finally ratified by the Court having jurisdiction over my estate, and on the payment of the purchase prices, to execute and deliver deeds of the properties sold under the power aforesaid."

The bill was dated February 3, 1916.In the following June testatrix executed the first codicil to her will, wherein she gave the one-ninth part previously given to her daughter Clara V. Keller, to her daughter Elizabeth E. Orem, trustee, and her successors, in trust to hold and manage, invest, and reinvest the same and to pay the income therefrom to the said Clara V. Keller, until such time as said trustee or her successors should be satisfied that it would be for the interest of said Clara to have the absolute title to her part, when the trustee and her successors are directed to convey same to her clear of the trust.It is also provided that the said Clara shall have the right to dispose of her part by will, and that in event of her death intestate before the conveyance to her, her part shall be conveyed to her surviving children, or if no children surviving, then to her heirs at law.

By a second codicil dated February 3, 1921, she revoked the devise of No. 2032 East Monument street to her said four first-mentioned sons, and devised the same together with No. 2030 East Monument to her daughter Clara V. Keller, for life, and after her death to said sons.

By a third codicil dated June 23, 1922, John J. Hohman, one of the children mentioned in the fifth paragraph of the will, having died, she directs her executors to divide all of the properties referred to in said paragraph into eight parts instead of nine, seven of which she devises and bequeaths to her surviving children other than Clara, and the remaining eighth part to Elizabeth E. Orem, trustee, and her successors in trust for her daughter Clara "for the uses and trust purposes as set forth in the first codicil * * *.All of said undivided one-eighth interests, however, to be held subject to the charge of a sum of money equal to the distributive share of my said estate which my son, John J. Hohman, would have received under the terms of my last will and testament if living at the time of my death, which I give, devise and bequeath unto John, Grace and Elizabeth Hohman, children of my deceased son, John J. Hohman, per stirpes and not per capita, said sum to be paid equally by all of the said undivided one-eighth interests within a period of five years from the date of my death, and on such payments as may be deferred from time to time during the said period, interest at the rate of six per cent shall be paid thereon to said children in half yearly installments until full payment of their respective shares shall have been made."She also directs that if any of her children then living shall predecease her leaving children, the distributive share of the one so dying as devised and bequeathed in her will and codicils shall be void, but in lieu thereof places a charge upon the distributive share of the children living at the time of her death of a sum of money equal to the value of the distributive share in her estate to which the child so dying would have been entitled to receive if living, "which I give, devise and bequeath unto the children of my said child so dying, per stirpes and not per capita, to be paid under the same conditions and provisions as herein provided as to the distributive interests of my son, John J. Hohman, deceased."

Charles C. Hohman is substituted for her deceased son as one of the executors.

The bill of complaint was filed on March 28, 1932.It alleges that the testatrix died on March 16, 1926; that letters testamentary were granted to the executors on March 22, 1926 that the estate consisted of a large number of ground rents as well as improved lots of land, together with stalls in markets in Baltimore, together with other property; that the inventory filed in the orphans' court does not include any of said property, excepting certain alleged stock named therein amounting to $3,120, and cash amounting to $593.21; that plaintiffs have no knowledge of the extent of the estate and they desire discovery in relation thereto.It recites the listing and valuation of property in the will, and alleges that said properties have yielded large rents since the death of the testatrix of which no account has been rendered to plaintiffs, and that it is necessary for the court to assume jurisdiction of said properties and appoint a receiver; that Clara V. Keller, a daughter of testatrix, died testate on April 16, 1931, leaving neither husband nor child or children, having appointed Elizabeth E. Orem executrix of her will.It recites the provisions of the will directing appraisement and distribution and alleges that Charles G., George A., and Conrad P. Hohman have taken their distributive shares and enjoyed it ever since the time of the death of the testatrix, but that plaintiffs have received no part of their distributive shares; that by an agreement between the parties the said three sons agreed to pay the sum of $149,421.87 for the property allotted to them by the will, subject to the terms and conditions in said agreement set forth; it recites the provisions of the third codicil in regard to the charge of plaintiffs' legacies upon the other eight shares and the direction that plaintiffs be paid within a period of five years with interest, and alleges that more than five years having elapsed plaintiffs"are entitled to distribution in the premises, and to receive their respective shares of said estate; that they have frequently requested of said executors, discovery of the properties in said estate, as well as of the rents, profits and income thereof, as herein prayed; accounting of both the estate and the rents, income and profits thereof, and distribution of said estate; but said executors and each of them, have unlawfully failed to comply with said requests or any part thereof"; that plaintiffs"are ready, willing and able to do whatever equities may be of them required in the premises"; and that they desire the court to take jurisdiction of the estate that it may conserve the same and prevent the waste or dissipation thereof; "that...