Appeals
from Circuit Court, Queen Anne's County, in Equity; James
A. Pearce, William R. Martin, and Edwin H. Brown, Judges.
Action
by Isabel R. Thom and others against De Coursey W. Thom. From
a judgment in favor of defendant, plaintiffs prosecute
separate appeals. Reversed.
Argued
before McSHERRY, C.J., and FOWLER, BRISCOE, BOYD, SCHMUCKER
and JONES, JJ.
JONES
J.
This is
the third time that questions arising in the progress of the
settlement of the estate left by the late William H. De C.
Wright have been brought to this court for adjudication.
Other cases presenting such questions are reported in 73 Md.
451, 21 A. 367, 23 A. 3, and 97 Md. 139, 54 A. 620,
respectively. The said Mr. Wright was married, and died in
1864, leaving his wife, Eliza L., surviving him. He and his
said wife had three children, all daughters. One was
Clintonia G., who married first William May, and, after his
death in her lifetime, Philip F. Thomas. She survived both
husbands, and also her father and her mother, dying in 1902.
Another daughter was Victoria L., who married Samuel
Levering, and who survived her father and mother, dying in
1889. The third daughter, Ella L., married J. Pembroke Thom,
and predeceased her father and mother, dying in 1861. On the
13th of October, 1853, William H. De C. Wright and wife
executed to Robert Clinton Wright a deed of an estate and
landed property known as "Blakeford," situated in
Queen Anne's county, this state, "In trust for the
proper use and behoof Clintonia Gustavia May, the wife of
William May *** and daughter of the said William H. De
Coursey Wright and Eliza L. Wright his wife for and during
the term of the joint natural lives of the said William May
and Clintonia Gustavia May so that the said William May and
Clintonia Gustavia May shall be suffered and permitted during
said term to hold use and occupy and enjoy said lands and
property and to collect and receive the rents issues and
profits thereof and the same to dispose of and apply to her
own use the same however to be subject to the management and
supervision of the said William May but in no wise liable for
his debts, contracts or engagements and from and after the
death of either of them the said William May and Clintonia
Gustavia May In trust for the survivor of them for and during
the term of his or her natural life with powers to such
survivor to devise and bequeath the whole or any part or
parts *** to such of the children or descendants of the said
William and Clintonia Gustavia and for such estates and
interests therein and in such shares or proportions as such
survivor May think proper with the power also to the said
William *** and Clintonia *** or the survivor of them with
the consent and approbation of the hereinbefore named William
H. De Coursey Wright if he shall be then living but if he
shall be then dead with the consent and approbation of the
said Eliza L. Wright if she be then living but if she shall
be then dead with the consent and approbation of the said
Robert Clinton Wright if then living but if he be then dead
with the consent and approbation of the heirs of the said
William H. De Coursey Wright and in case they or either of
them should object thereto then with the consent and
approbation of the Orphans' Court of said Queen
Anne's County to sell, dispose of and convey absolutely
or otherwise the whole or any parts or part of the lands and
property hereby conveyed and to invest the proceeds of such
other property as by the parties hereby authorized to sell
shall deem proper and it is hereby declared that all such
investments shall be deemed and taken to be held upon similar
uses and trusts and with similar powers to those herein
declared in relation to the specific estate hereby conveyed.
And from and after the death of the survivor of them the said
William *** and Clintonia *** in case no such disposition of
said lands &c. *** shall be made under the powers
hereinbefore granted and in so far as no such disposition
shall have been made then In trust for such of the children
and descendants of the said Clintonia *** as may be then
living and who shall have then attained the age of twenty-one
years and their heirs per stirpes and for the support,
maintenance and education of such child or children and
descendants of the said Clintonia *** as may be then living
but who shall not then have obtained the age of twenty-one
years until such child or children then living and in their
minority shall respectively
arrive at the age of twenty-one years or shall die in its or
their minority and in case of the death of any such child or
children or descendants dying in its or their minority then
as to the portion or share of such child or children or
descendants in trust for the other children and descendants
of the said Clintonia *** then living who may have arrived at
the age of twenty-one years and their heirs forever and the
maintenance support and education of those still in their
minority and when and as each of the aforesaid children and
descendants of the said Clintonia *** living at the time of
the death of the survivor of them the said William *** and
Clintonia *** and then in his her or their minority as
aforesaid shall respectively attain the age of twenty one
years then as to his her or their share in trust for them and
their heirs forever. But if there shall be no children or
descendants of the said Clintonia *** living at the time of
the death of the survivor of them the said William *** and
Clintonia *** or if there be children under age as aforesaid
and all of them shall die in their minority then In trust for
*** William H. De Coursey Wright for and during the term of
his natural life with power to him to devise and bequeath the
estate and property hereby conveyed to such of his children
or descendants as he may think proper and in case of his
death without his having made any disposition thereof then In
trust for the hereinbefore named Eliza L. Wright for and
during the term of her natural life with power to her by last
will and testament duly executed, to devise and bequeath the
same to such of the heirs of said William H. De Coursey
Wright as she may appoint to take the same and for their
heirs forever; and in case the said Eliza *** should make no
such disposition by will as hereinbefore provided, then in
Trust for such person or persons as would by the now existing
laws of Maryland be the heirs at law of the said William H.
De Coursey Wright and for their heirs forever."
In May,
1854, the grantor in the deed referred to, Mr. Wright,
executed his will, in which, after manumitting his slaves, he
devises and bequeaths all the residue of his property upon
certain trusts, and, subject to the limitations therein
declared, for the benefit of his three daughters, subject to
a provision for his wife, the concluding clause of which will
is as follows: "Whereas I have heretofore advanced to my
daughter Clintonia G. May wife of William May the property
described in a deed of real and personal estate executed by
me as will more fully appear by reference to said deed. I
hereby declare that my daughter & her representatives shall
not be entitled to any portion of my estate until she has
been charged with the sum of thirty-five thousand dollars,
which I hereby assess as the value of the property so
advanced to her & until she has been charged with one-third
of her share or portion for the benefit of my widow as
aforesaid."
To this
will there were three codicils, one of which, executed in
February, 1858, is as follows: "Having subsequently to
the execution of my will on the 22nd day of May 1854 given
property to my two daughters Victoria & Ella, it being my
will and intention they be charged with the same as part of
their share of my property to place them on a footing with my
daughter Clintonia to whom I gave property valued at
Thirty-five thousand dollars and that after they have all
received the amount of Thirty-five thousand then to share and
share alike in all the balance of my property."
In her
lifetime, Mrs. May (then Mrs. Thomas), asserting the right so
to do under the power conferred by the deed of the 13th of
October, 1853, her father and mother and Robert Clinton
Wright, the trustee, all being dead, and some of the heirs of
the grantor in the deed making objection to the execution of
the power by her, applied for and obtained from the
orphans' court of Queen Anne's county a consent to
the sale by her of the property (Blakeford) described in the
said deed, and thereupon sold the same to De Coursey W. Thom,
the appellee here, for the sum of $27,000. She then executed
to him a deed of date 24th March, 1886, reciting that it was
made in execution of the power, and subsequently took from
him a mortgage, at six years, of the property so conveyed,
for the whole amount of said purchase money which remains
unpaid. She also made a will, and, by a codicil thereto,
devised the same property to the appellee; assuming to devise
it "to be his solely and absolutely in fee simple,"
and in the same codicil gave of certain other property the
one-half to him, and one-half to be equally divided between
the two children of a deceased nephew, parties to this case.
The
plaintiffs below in this case began proceedings therein by
filing in the circuit court for Queen Anne's county their
bill of complaint, showing that they claim interests in the
property in question through Mrs....
