Literski v. Literski

• Decision Date: 12 April 1934
• Docket Number: 33.
• Citation: 171 A. 874,166 Md. 641
• Parties: LITERSKI v. LITERSKI ET AL.
• Court: Maryland Court of Appeals

171 A. 874

166 Md. 641

LITERSKI v. LITERSKI ET AL.

No. 33.

Court of Appeals of Maryland

April 12, 1934

Appeal from Circuit Court No. 2 of Baltimore City; Eugene O'Dunne, Judge.

Suit by Teofila Literski against Eva Literski and another. From a decree of dismissal, plaintiff appeals.

Affirmed in part, reversed in part, and remanded.

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

Michael J. Manley, of Baltimore (Harley & Wheltle & Webster, of Baltimore, on the brief), for appellant.

Paul R Hassencamp, of Baltimore (Catherine A. Wheatley, of Baltimore, on the brief), for appellees.

PARKE Judge.

Anton Literski was the owner of a fee-simple estate in a lot of land and of a leasehold interest in another parcel of land which was subject to the payment of an annual ground rent of one cent. On May 17, 1932, he and his wife, Teofila Literski conveyed the fee-simple estate in the one lot and the leasehold estate in the other to Josef Golczynski and Wladslawa Golczynski, his wife, for the purpose of having the titles to these estates in the two lots reconveyed in accordance with their wishes. So, simultaneously with the execution of deed to them, the grantees, by their deed of even date, conveyed the fee-simple and leasehold estates in these two lots. The granting clause was that Josef Golczynski and his wife: "Do grant assign and convey unto the said Anton Literski and Teofila Literski his wife as tenants by the entireties for the term of their natural lives with full absolute and unqualified power unto them to sell lease mortgage or in other manner or way to dispose in their lifetime of all of and the entire estate without the joinder in the deed of the hereinafter mentioned remaindermen and without the necessity of the purchaser or purchasers to look to the application of the purchase money and immediately after their death then to Eva Literski and Martha Literski as joint tenants their heirs and assigns and personal representatives" the fee-simple estate in the one lot and the leasehold interest in the other lot. The estates in these two lots are conveyed by description and by reference to the deed by which the grantors acquired the estates they conveyed. After these descriptions and reference, the two habendums follow in this form: "To have and to hold the said second lot of ground" (leasehold) "herein described unto and to the use of the said Anton Literski and Teofila Literski his wife their assigns for the term of their natural lives as tenants by the entireties with full absolute and unqualified power to them to dispose of the entire and whole estate as will more fully appear hereinafter for all the residue of the term of years yet to come and unexpired therein with the benefit of renewal forever subject to the annual rent of one cent and to have and to hold the said lot of land firstly described" (fee simple) "and premises above described mentioned and hereby intended to be conveyed together with the rights privileges appurtenances and advantages thereto belonging or appertaining unto and to the proper use and benefit of the said Anton Literski and Teofila Literski his wife for the term of their natural lives as tenants by the entireties their heirs and assigns with full absolute and unqualified power unto them to sell lease mortgage or in other manner or way to dispose in their lifetime of all of and the entire estate without the joinder in the deed of the hereinafter mentioned remaindermen and without the necessity of the purchaser or purchasers to look to the application of the purchase money and immediately after their death then to Eva Literski and Martha Literski as joing(t) tenants their heirs assigns and personal representatives."

The terms used in the first habendum differ from those of the second habendum in that the first habendum relates to the assignment of a leasehold interest in land, and the second to the conveyance of a fee-simple estate, and, so, the words of each habendum conform to the nature of the interest granted. The first habendum omits the insertion, but incorporates, by reference, the power of disposition set forth in the second habendum, which is substantially identical in wording with the granting clause. The choice of terms appropriate to the transmission of leasehold estate in the first habendum and of realty in the second habendum, with the second habendum concluding, in the grant over to the remaindermen, in terms of art applicable to the conveyance of both realty and personalty, demonstrates that the grantor intended the habendums to the life estates and remainders created by the granting clause of the deed of conveyance to be construed together. As a further indication of the design to have the instrument regarded as a harmonious whole, and of the unity in the enjoyment and devolution of title intended with reference to the fee-simple and leasehold lots there is no separation of any part of the deed which has some capitalization but not a single punctuation mark nor paragraph from the first word to the seals of the grantors. So, no conflict is perceived between either of the habendums and the granting clause. If there were any conflict, the estate described in the granting clause would prevail over that of the habendum. Marshall v. Safe Deposit & Trust Co., 101 Md. 1, 60 A. 476. Whatever question arises in the construction of the deed will,...