Tyson v. Tyson

• Decision Date: 25 June 1869
• Parties: RICHARD W. TYSON and Julia McH. Tyson, His Wife, v. JAMES W. TYSON, Trustee, Margaret J. Tyson and Others.
• Court: Maryland Court of Appeals

31 Md. 134

RICHARD W. TYSON and Julia McH. Tyson, His Wife, v. JAMES W. TYSON, Trustee, Margaret J. Tyson and Others.

Court of Appeals of Maryland

June 25, 1869

Appeal from the Circuit Court of Baltimore City.

C. M Stewart, by deed dated the 6th of May, 1864, assigned certain leasehold property in Baltimore City to Julia McHenry Tyson wife of Richard W. Tyson, "her personal representatives and assigns, as thereinafter set forth, for all the residue of the term," etc. The deed then provided, that during her natural life the property should be held by the said Julia, to her sole and separate use, and free from the control of her present, or any future husband " with power" to her, "during the lifetime of her present husband, and with his assent and concurrence, to sell, mortgage, or otherwise dispose of, and to grant the said property, and the proceeds to reinvest in such other estate and property as she might think proper. " There was also an express power to her, in case she should survive her husband, to devise the property "to such of her children or descendants by the said Richard, as she might think proper," """and from and after her death in case no sale or other disposition should be made by her, under the aforesaid powers, and in so far as no such disposition might have been made by her, then to be held by the child or children which the said Richard might have by the said Julia, and the descendants of such deceased children who should be living at the time of her death, to take per stirpes, and not per capita;" but in case no such children or descendants be then living, then to be held by the said Richard, etc. Then followed a covenant for possession by the said Julia, "her representatives and assigns," and a covenant for such further assurance as might be required by her, "her representatives or assigns."

Afterwards James W. Tyson, the brother of Richard, suggested to him, that no mention was made in this deed of his two children by his former wife, and that they ought to have an equal interest in the property with his children by his present wife. This advice was accepted by Richard, and by his wife, Julia, and a lawyer was employed to execute their intentions. The deed of the 6th of May, 1864, was given him to follow, with no other instructions than that the children of the first wife were to be placed on an equality with those of the second wife. The lawyer selected the form of a deed in trust to James W. Tyson, and employed a scrivener to write the deed, which was executed by Richard and wife, February 12th, 1866, without either of them having read, or heard it read. They afterwards discovered, only a few weeks before the filing of the bill in this cause, that said deed of February 12th, 1866, was so drawn as to deprive Julia of the full power of disposal over the said property, and the proceeds of its sale, which she had under the previous...