McCabe v. Brosenne

• Decision Date: 05 March 1908
• Citation: 69 A. 259,107 Md. 490
• Parties: McCABE et al. v. BROSENNE et al. STANSFIELD et al. v. SAME.
• Court: Maryland Court of Appeals

69 A. 259

107 Md. 490

McCABE et al. v. BROSENNE et al.

STANSFIELD et al. v. SAME.

Court of Appeals of Maryland

March 5, 1908

Appeals from Circuit Court, Howard County, in Equity; Wm. H. Thomas Judge.

Two suits by Christian P. Brosenne and others against Amelia McCabe and another, and by Elizabeth Stansfield and others against Christian P. Brosenne and another From a decree denying relief to defendants in the first suit, and granting relief to defendants in the second suit, defendants in the first suit and plaintiffs in the second suit appeal.Affirmed.

Karl A M. Scholtz, C. M. White, and F. V. Rhodes, for appellants.

Francis Neal Parke and James A. C. Bond, for appellees.

BURKE J.

Henry Frederick Brosenne, a resident of Howard county, died intestate in January, 1903, and left surviving him as his only heirs at law eight children--two sons and six daughters and one grandchild, a minor daughter of a deceased son.He died seised of a large and valuable real estate situated in that county.The children were all of full age.The larger part of his real estate was subject to a mortgage of $9,000 held by Mrs. Gabriella McKubbin.Portions of the real estate were rented or leased at the time of the intestate's death, and the lessees or tenants were indebted to him for rent.Two judgments had been entered against him in the circuit court for Howard county, and these were unsatisfied at the time of his death.On the 14th day of September, 1903a bill was filed for the sale of the real estate and for the appointment of receivers to collect the rents due, or which might thereafter become due, from the tenants.This bill was filed by some of the heirs at law of the deceased.All the other heirs, as well as the mortgagee, Mrs. McKubbin, and her husband, were made defendants.The bill alleged that the real estate was not susceptible of partition without material loss and injury to the parties entitled to interest therein, and that, in order to make division of said interests, it would be necessary to sell the property, and divide the proceeds among the parties according to their several interests.Amelia, one of the children of the intestate and one of the respondents in this case, had married John H. McCabe, and she and her husband had for a number of years resided in Virginia.In the ninth paragraph of the bill it is alleged that Henry Frederick Brosenne during his lifetime purchased a farm in Fauquier county, Va., and thereafter conveyed the same to the defendantJohn H. McCabe, husband of Amelia McCabe, for the purported consideration of $12,000; whereas, in truth and in fact, the sum of $4,000 of said consideration of $12,000 was released and given by Henry Frederick Brosenne to his daughter, Mrs. McCabe, by way of advancement; and it was charged that Mrs. McCabe should not be entitled to claim a share in the real estate descended from her father, unless she should elect to bring such advancement, or the value thereof at the time the same was made, into hotchpot with said estate.In their answers both Mr. and Mrs. McCabe deny this advancement; Mrs. McCabe stating "that she absolutely denies having received either directly or indirectly the sum of $4,000, or any other sum, as an advancement from her father, Henry F. Brosenne."The mortgage to Mrs. McKubbin was subsequently assigned to Messrs. James A. C. Bond and F. Neal Parke, who consented that a decree be passed for the sale of the property, reserving their lien under the mortgage upon the proceeds of sale.On the 4th day of December, 1903, Elizabeth A. Stansfield, one of the daughters of the deceased, and her husband, Benjamin L. Stansfield, filed a bill against the administrators of the deceased and all the other heirs at law, in which they asked that the property be sold and the proceeds distributed among the parties in interest, that receivers be appointed to manage the real estate, and that the personal estate of the deceased be administered under the supervision of the court.The seventh paragraph of this bill charges that a large part of the estate of Henry Frederick Brosenne had been fraudulently taken possession of by some of his children, and has been concealed by Christian P. Brosenne and Lydia Linthicum for the purpose of depriving the complainants and some of the defendants of their interest in the real and personal property of the said deceased.The answers of Christian P. Brosenne and Lydia Linthicum denied that they, or either of them, had fraudulently taken possession of any of the personal estate of said deceased, and they further denied that either have fraudulently taken possession of or concealed any of the personal estate of said deceased for the purpose of depriving any one of his or her interest therein.The answers of all the defendants were filed to both bills, and replications were also filed.It is unnecessary to notice the answers of the other defendants, as they have no important bearing upon the questions here presented.Testimony was taken to prove the averments required to authorize a decree for sale, and the appointment of receivers, and on the 25th of February, 1904, the court decreed that the real estate be sold and appointed trustees to make the sale.It also appointed receivers of the real estate, pending the sale and the ratification thereof, with authority to collect the rents.The court by its decree expressly reserved for further decree and appropriate action all other questions and matters between the parties to the cause, and arising thereunder, and not expressly disposed of by the decree, without prejudice to any of the rights of the respective parties to the suit in the distribution of the proceeds of the real estate sold under the decree.The trustees sold the real estate, and the receivers made certain collections.The sales made by the trustees were reported to and finally ratified by the court.An expense account was stated, which was also finally ratified and confirmed, by which it appeared that there was quite a large balance for distribution among the parties in interest.Testimony was then taken upon the questions arising under the ninth paragraph of the first bill, and under the seventh paragraph of the second.These questions are, first, the alleged advancement to Mrs. McCabe; and, secondly, the alleged fraudulent possession and concealment by Christian P. Brosenne and Lydia Linthicum of assets of the estate of Henry Frederick Brosenne, deceased.A large mass of testimony, which is very conflicting, was taken upon these issues.The lower court decreed that the advancement alleged in the bill had been made to Mrs. McCabe, and directed the auditor in the distribution of the proceeds of the real and personal estate to treat the sum of $4,000 as an advancement to her.It further decreed that the property which the ninth paragraph of the second bill charged to have been fraudulently retained and concealed by Christian P. Brosenne and Lydia Linthicum was their absolute property, and was not to be accounted for in these cases.The appeals before us were taken upon this decree.

By section 31, art. 46,Code 1904, it is declared that any child or children of the intestate or their issue having received from the intestate any real estate by way of advancement may elect to come into partition with the other parceners on bringing such advancement, or the value thereof at the time such advancement was received, into hotchpot with the estate descended; but such child or children, or their issue, shall not be entitled to claim a share by descent without bringing such advancement, or the value thereof as aforesaid, into the common stock, or hotchpot, if there be any other child or children unprovided for.Section 124, art. 93,Code 1904 provides that, if any child or descendant shall have been advanced by the intestate by settlement or portion, the same shall be reckoned in the surplus; and, if it be equal or superior to a share, such child or descendant shall be excluded, but the widow shall have no advantage by bringing such advancement into reckoning; and maintenance or education or money given without a view to a portion or a settlement in life shall not be deemed an advancement.The object of these provisions is to secure equal and exact justice, as far as may be, among the children of the intestate by equalizing their shares in the distribution of his estate.In Dilley et al. v. Love et al.,61 Md. 603, it is said that our statutes do not "attempt to define what shall constitute an advancement, or to designate the mode in which it shall be made, or the evidence by which it shall be...