Owens v. Claytor

• Decision Date: 18 March 1881
• Citation: 56 Md. 129
• Parties: MARY E. OWENS v. RICHARD CLAYTOR, et al. RICHARD CLAYTOR v. MARY E. OWENS.
• Court: Maryland Court of Appeals

56 Md. 129

MARY E. OWENS v. RICHARD CLAYTOR, et al.

RICHARD CLAYTOR v. MARY E. OWENS.

Court of Appeals of Maryland

March 18, 1881

The cause was argued before BARTOL, C.J., GRASON, ALVEY and ROBINSON, J.

John G. Rogers and James H. Hodges, for Mary E. Owens.

J Wirt Randall and William H. Tuck, for Richard Claytor.

ROBINSON J., delivered the opinion of the Court.

The testatrix being seized of an undivided two-thirds interest in a tract of land containing one hundred and twenty-five acres devised to her son John, forty acres thereof, including the dwelling-house and outbuildings, and to her son Frank, she devised the remaining forty-three acres.

In a subsequent clause in the will, she gave to her niece, Mary Elizabeth Owens, her bed-room furniture, and also an annuity in the following terms:"

"It is likewise my will that each of my sons, Frank and John shall pay to my said niece Mary, the sum of thirty dollars per annum, in equal instalments every two months.

She also gives to her servant Phil. Clark, ten dollars per annum to be paid by her son John.

She directs that her negroes shall be hired out until their wages shall aggregate a certain specified sum, and then to be free. The fund thus to be raised to be applied to the payment of her debts.

The will was executed in 1858, and the testatrix died in 1864.

In May, 1865, John sold the land devised to him to the appellant, Richard Claytor.

The fund to be raised by the hire of the negroes, for the payment of debts having failed, a bill was filed by the testatrix's creditors for the sale of the real estate devised to John and Frank.

Upon an ascertainment made by the creditors, the appellant, Claytor, paid the proportion of the debts chargeable to John as devisee; and the proportion due by Frank being unpaid, the land devised to him was sold under a decree of the Court, and the appellant, Claytor, became the purchaser.

In 1879, thirteen years after the appellant, Claytor, had purchased of John the land devised to him, and seven years after he had purchased at trustee's sale, the land devised to Frank, this bill is filed by the appellee, Mary E. Owens, to enforce the payment of the annuity under the will of the testatrix, as a charge or lien upon the lands devised to John and Frank, and now belonging to the appellant, Claytor. And the question, and only question necessary to be decided, in the view we take of the case, is whether the annuity is a charge upon the lands devised.

We take the law to be well settled, that legacies and annuities, whether payable by an executor or a devisee, are not to be considered charges upon real estate, unless the intention of the testator to charge it, is either expressly declared, or may be fairly inferred from the will.

It is not contended that the annuity in this case, is expressly charged upon the land; and if it exists at all, it must be by implication. It is hardly necessary to say that liens by implication are not favored by law. Such liens necessarily tend to fetter the alienation of property, and from their obscurity and uncertainty in many cases, operate as great hardships, especially against lands in the hands of a bona fide purchaser. And although in the absence of express language, they may sometimes be inferred, yet the intention so to charge them ought plainly and satisfactorily to appear. The question ought not to be one of conjecture or mere probability.

Now what is there in the will before us, from which we are to infer, the testatrix meant the annuity to be a lien upon the land? The devisees are her own children, and to them she devises the lands without limitation or qualification of any kind. The annuitant is a niece, and the bequest is in a subsequent and distinct clause, without any connection with or reference to the land devised. But it is said that the payment of the annuity by them, could only be imposed in respect of and in consideration of the land. That is true, but it by no means follows that the testatrix meant to charge its payment upon the land.

If she had said, " to be paid by John and Frank out of the lands devised," or "" upon their coming into possession of the property," or "if the devise had been after paying the annuity," or any other like expressions from which an intention could reasonably be inferred, it might be said that the annuity was a charge. But in the entire absence of terms like these, it must be considered as a mere charge on the devisees in respect of the land devised to them, and not a charge on the land itself. In accepting the devise, they became personally liable for the payment of the annuity. It is upon the acceptance by them, and that alone liability or obligation of any kind arises. If the testatrix meant to charge the land, it was...