Hutchinson v. Farmer

• Decision Date: 23 April 1948
• Docket Number: 144.
• Citation: Hutchinson v. Farmer, 190 Md. 411, 58 A.2d 638 (Md. 1948)
• Parties: HUTCHINSON v. FARMER et al.
• Court: Maryland Court of Appeals

58 A.2d 638

190 Md. 411

HUTCHINSON v. FARMER et al.

No. 144.

Court of Appeals of Maryland

April 23, 1948

Appeal from Circuit Court No. 2 of Baltimore City; Edwin T Dickerson, Judge.

Suit by James Farmer and another against Elizabeth Hutchinson and others for a declaration of rights of the parties, for sale of leasehold property and an appointment of a trustee therefor and for other relief. From order overruling named defendant's demurrer to the bill of complaint, the named defendant alone appeals.

Order reversed and bill dismissed.

W. A. C. Hughes, Jr., of Baltimore, for appellant.

Alfred Bagby, Jr., and George Ross Veazey, both of Baltimore, for appellees.

Before MARBURY, C.J., and DELAPLAINE, COLLINS, GRAYSON, and HENDERSON, JJ.

MARBURY Chief Judge.

This is an appeal from an order of the Circuit Court No. 2 of Baltimore City, overruling a demurrer filed by the appellant to a bill of complaint. The appellant claims that the demurrer should have been sustained, and the bill dismissed.

The bill shows that in 1931 a certain Annie Washington owned and occupied the leasehold property known as 1231 Myrtle Avenue in Baltimore City. On February 21, 1931, by assignment duly executed and recorded, she conveyed it to Howard C. Bregel who, on the same day, by an assignment also duly executed and recorded, reconveyed it to her 'for and during the term of her natural life with full power in the meantime however to grant sell lease mortgage or in any other manner dispose of the absolute estate therein without the consent of (or) joinder of any one and from and immediately after her death in the event that the aforesaid powers are not exercised so much thereof as remains undisposed unto Elizabeth Hutchinson and George W. Brice as joint tenants and not as tenants in common her his or their personal representatives and assigns'. There is no conflict between the granting clause and the habendum. The latter reads as follows: 'To Have and to Hold the said described lot of ground and premises unto and to the use of the said Annie Washington for life with full power of disposition as hereinbefore recited with remainder if any over to Elizabeth Hutchinson and George W. Brice as joint tenants and not as tenants in common his her or their personal representatives and assigns for all the residue of the term, etc.' One of the joint tenants named in this deed, George W. Brice, predeceased Annie Washington. The latter made a will under date of September 25, 1943 which at her death was admitted to probate by the Orphans Court of Baltimore City and duly recorded. By this will she appointed Roy S. Bond her executor and directed him to sell all of her property 'consisting of my house--1231 Myrtle Avenue, Baltimore, Maryland--my jewelry, my furniture etc.' The executor is then directed to pay her funeral expenses, to pay $300 which the testatrix stated she owed her niece, a certain Mary C. Moore, and all other bills. One-half of the remaining amount in the bank as a result of the sale of the property is given to James and Louise Farmer who she states are tenants in her home, and the remaining one-half she gives to her niece, above mentioned, Mary C. Moore. During her lifetime the testatrix made no disposition of the Myrtle Avenue property.

The executor qualified and returned an inventory of chattels in the amount of $67.50. He did not include the Myrtle Avenue property. Mary C. Moore filed a petition in the Orphans Court to require the executor to return an inventory of this property and, after an answer and hearing, that Court granted the prayer of the petition. Elizabeth Hutchinson, who was also a niece of the testatrix, was not a party to that proceeding. The executor returned an inventory of the leasehold property and under an order of the Orphans Court, sold it at public auction for $4,310. That sale, however, was never ratified because the purchaser was not satisfied that the executor could convey a good title to the property. The bill of complaint was filed by James Farmer and Mary C. Moore, and, after reciting the above facts, asked for a declaration of the rights of the parties, for a sale of the leasehold property and the appointment of a trustee therefor, that the executor be required to account for the monies which he has been collecting from the property, that the Court assume jurisdiction over the final settlement of the Annie Washington estate, and for further relief. The appellant, Elizabeth Hutchinson, one of the defendants, was served by publication, and a decree pro confesso was entered against her. When she subsequently learned of the situation, she petitioned the Court to strike out that degree. This the Court did, she demurred to the bill, the Court overruled the demurrer, and then this appeal was taken.

There were some other proceeding from which, however, no appeal was taken, and the record does not show them, except in the docket entries. The chancellor is said in the briefs to have appointed a trustee to sell the property, and that trustee is said to have made a sale, which was reported and ratified. Some testimony appears to have been taken. Counsel for the parties are said to have filed a stipulation on behalf of their respective clients agreeing that their rights should be relegated to the funds in the trustee's hands. No sale, however, has been consummated because, if the appellant's contention is correct, there was no right in the court to order a sale. Whether these other proceedings were within the power of the chancellor, under the circumstances, and when they were had, is a question not before us on this record. The only question we are asked to decide is, did this property pass under the remainder in the deed, or did it pass under the will. The answer to this question depends upon the construction of the power given in the deed.

This power does not specify the instruments or the conveyances by which it is to be exercised. It does not use the nouns 'deed', 'assignment', 'lease', or 'mortgage' although there is no difficulty in holding that power to grant or sell leasehold property is intended to comprehend the execution of a deed or assignment. Similarly, the power to lease grants the power to execute a lease, and the power to mortgage to execute a mortgage. All of these conveyances would have to be made 'in the meantime' which, as used in the clause granting the power, obviously means 'during the term of her natural life'. A will would also have to be made during the lifetime of the donee of the power, but, unlike the conveyances mentioned, it would not take effect when made, but only at her death. It is claimed that the words 'or in any other manner' give the right to dispose of the remainder by will, that there is no other manner of disposal left but by will, if the donee does not grant, sell, lease or mortgage, and that the additional comprehensive words were inserted to authorize transfer by will.

On the other hand, it is contended that general words such as these must be considered with reference to the specific powers previously granted, and must be interpreted to give only general powers of the same nature and kind. And it is said that a power to will is materially different from a power to grant, sell, lease or mortgage, not only in the time it can become effective, but because it affects only the remainder, and not the present enjoyment of the life estate.

Powers are to be construed liberally in order to ascertain the intention of the donor. 4 Kent Commentaries, 345; Dodson v. Ashley, 101 Md. 513, at page 517, 61 A. 299; Schmidt v. Hinkley, 115 Md. 330, at page 335, 80 A. 971; Miller on Construction of Wills, paragraph 249. In the case before us, of course, the donee is practically the donor as she created the power by simultaneous conveyances to and from her attorney, so that what we have to consider is what she had in mind when she changed her absolute estate to a life estate coupled with the power to dispose of the entire estate, and with a remainder to the appellant if such disposition was not made. When the method of the execution of the power is set out in the instrument creating it, that method of execution must be used, and another will not suffice. Miller on Construction of Wills, paragraph 250; Tiffany on Real Property, 3d Ed., Vol. 3, Sec. 398; Venable's Syllabus, page 167. Thus, if the instrument creating the power requires that it be executed by deed, it cannot be executed by will. The converse is also true. Pope v. Safe Deposit & Trust Co., 163 Md. 239, at page 245, 161 A. 404; O'Hara v. O'Hara, 185 Md. 321, 44 A.2d 813, 163 A.L.R. 1444; Connor v. O'Hara, Md., 53 A.2d 33. See also Farmers' Loan and Trust Co. v. Mortimer (opinion by Judge Cardozo) 219 N.Y. 290, 114 N.E. 389, Ann.Cas.1918E, 1159.

In the instant case, as we have shown, no specific form of instrument is named as the method to be used in executing the power, and we have to determine from the words used whether or not this power is intended to be exercised only by conveyances inter vivos. The appellees cite the very early case of Corporation of Roman Catholic Clergymen's Lessee v. Hammond, 1 Har. & J. 580, 581 as authority for the proposition that the will of the testatrix is a valid execution of the power. In that case a certain Thorold devised a tract of land to a certain Molyneux, to him and his heirs forever, but in case of his death before the devisors or his not having disposed of it before his death, either in whole or in part, the estate of the part remaining undisposed, was to go to a certain Guin. Molyneux made a will devising his estate to Hunter, and by mesne conveyance it vested in the Corporation of the Roman Catholic Church. The question involved in that case was whether the Thorold tract...