Johnson v. Hoover

• Decision Date: 17 March 1892
• Citation: 75 Md. 486,23 A. 903
• Parties: JOHNSON et al. v. HOOVER et al.
• Court: Maryland Court of Appeals

23 A. 903

75 Md. 486

JOHNSON et al.

v. HOOVER et al.

Court of Appeals of Maryland.

March 17, 1892.

Appeal from circuit court of Baltimore city.

Suit for partition, by Daniel Hoover and another against Jessie C. Johnson and others. From a decree directing a sale of the property and a division of the proceeds defendants appeal. Affirmed.

Argued before Alvey, C. J., and Irving, Robinson, Bryan, Briscoe, Miller, McSherry, and Fowler, JJ.

Benj. F. Horwitz, for appellants.

Taylor & Savage and Ber. Wiesenfeld, for appellees.

IRVING, J. This case was in this court before, (18 Atl. Rep. 907,) and, after remand upon the decree reversing the decision of the court below, the case proceeded to decree for partition. After the remand, and before decree, the De Murguiondo heirs sold out their interest; and the appellant Jessie Johnson, wire of Greenleaf Johnson, and Joseph Friedenwald, respectively, became purchasers, and, upon application to the court, were made parties defendant. The bill charged that the Druid Hill property was susceptible of easy partition. AH the defendants agreed in their answers that the allegations of the bill were true, and decree for partition was passed appointing commissioners to make the division. This decree was satisfactory to all parties, who respectively assented thereto in writing. The commission issued to five persons agreed upon by the parties, including Simon J. Martenet, an experienced city surveyor. The commissioners took the usual oath, and proceeded to the discharge of their duty. Subsequently they returned to the court a report that "they did walk over the land, and, after consultation and deliberation, their judgment is that said land cannot be divided without loss or injury to all the parties; and the reason on which this view is founded is that its topography makes it impossible. It has little knolls all over it. It is very high and abrupt on the west side, and some fifty feet lower on the east side, which makes it a very irregular lot, and impossible to divide without loss or injury to the parties. Cutting the lot up would, in our judgment, ruin it. The real value of said land in current money is fifteen thousand dollars." No objections were made to the ratification of this report, and the same was finally confirmed. A few days after the confirmation of this report, Jessie C. Johnson, wife of Greenleaf Johnson, the purchaser of the undivided interest of Prudencio H. de Murguiondo, the oldest child of Julia A. de Murguiondo, filed a paper electing in writing to take the property at the valuation of the commissioners, and to pay the other heirs their proportionate shares of the valuation. This application to elect was resisted by the plaintiff Daniel Hoover and Joseph Friedenwald, a defendant, on the ground that the right of election did not exist. The court sustained the objection, dismissed the petition to elect, and decreed a sale of the property. From this decree Jessie Johnson and her husband appealed.

The first question for determination is, was the court right in overruling the application to elect? Of this there can be no doubt. The right of election is a statutory right, belonging only to the eldest heir of an intestate's estate, as prescribed by the statute, and, if he refused, to the next oldest, and so on down to the youngest being of age. It is confined by statute to cases of inheritance. Article 46 of the Code provides only for proceedings at law for the valuation and division of an intestate's estate. The proceeding in this case is in equity, under section 116 of article 16 of the Code of Public General Laws. The estate which is the subject of the bill and is sought to be divided is an estate derived under the will of Mrs. Juliet Moale, who gave her daughter a life-estate therein, and her grandchildren the remainder in fee. The appellants' solicitor has contended in argument that this proceeding was taken under article 46 of the Code, and that, therefore, the right of election should be accorded to the oldest heir, or his or her grantee. In this view he is mistaken, for the reason we have already assigned,—that article46 provides only for the division of intestates' estates, and not for such as come by will or other conveyance. Sometimes the proceedings in chancery have been made to follow the proceedings at law as far as they could be made applicable. But the commission in chancery does not direct the valuation of the estate when a partition of land not inherited is asked for and is decreed. In this case partition was decreed, and the commission issued to five discreet persons to make it. That commission was in the ordinary chancery form to secure partition. It did not direct the commissioners to value the property, and in doing so the commissioners transcended their powers. The fact that the commission did not so command shows that it was not intended to be a proceeding under article 46 of the Code. This is all that is necessary for us to say in vindication of the court's decision that the appellants have no right of election.

The counsel for the plaintiffs having filed a petition asking for an allowance of a fee of $250 for services in this case from its beginning, and the court having passed the...