Whitridge v. Parkhurst

• Decision Date: 22 May 1863
• Citation: 20 Md. 62
• Parties: HORATIO L. WHITRIDGE AND THOMAS S. ALEXANDER, v. JARED PARKHURST, JR.
• Court: Maryland Court of Appeals

20 Md. 62

HORATIO L. WHITRIDGE AND THOMAS S. ALEXANDER, v. JARED PARKHURST, JR.

Court of Appeals of Maryland.

May 22, 1863

APPEAL from the Circuit Court for Baltimore County sitting in Equity:

This appeal is taken from an order of the Circuit Court for Baltimore County sitting in equity, and passed on the 31st October 1860; whereby the injunction granted on the bill of complaint is continued until final hearing.

The complainant below, (who is the appellee here,) by his bill of complaint states, that he is a creditor of Elizabeth Frisby deceased, on promissory notes of which copies are exhibited with the bill; that James Edwards by his will, dated 2nd July 1811, devised the residue of his real and personal estates to his wife Elizabeth Edwards, for life, with remainder to Elizabeth Brown, the daughter of his said wife, in fee; that at the time of making this will and at time of his death, the testator was seized and possessed amongst other of a parcel of land in Baltimore County, known by the name of " Oxford and Mount Pleasant," and also of lots lying at the north-east corner of Gay and Front streets, in the City of Baltimore.

That after the death of the testator, Elizabeth Edwards entered into possession of the said property, and held the same under said will until her death. That Elizabeth Brown intermarried with Richard Frisby, who died in the year 1844 leaving his wife surviving him; and that Elizabeth Edwards died in the year 1846, leaving the said Elizabeth Frisby her only child and heir at law.

That Elizabeth Edwards left a last will, by which she devised to her daughter Elizabeth Frisby, for life, all her estate; and also undertook and attempted to devise the above property, in which she had no more than a life estate, to her said daughter for life, and after her death, to her son John J Frisby, and then in remainder. That after the death of Elizabeth Edwards, the said Elizabeth Frisby, the executrix named therein, proved the same and obtained administration on the estate of the deceased; and that " she took possession of all the property devised to her for life, by the will of the said Mrs. Edwards, and held the same until her death; and that the property so devised to the said Elizabeth Frisby, by the will of the said Elizabeth Edwards and of which she, the said Elizabeth Frisby, so took possession, did include as part of it certain property, to which the said Elizabeth Edwards was entitled in her own right and absolutely, and to which the said Elizabeth Frisby, as her only child and heir at law, would have been or was entitled in fee or absolutely, but for the said devise in the said Elizabeth Edwards' will."

That the said Elizabeth Frisby was entitled as devisee, in fee of the said James Edwards, to all the property of which she so took possession after the decease of her said mother, except that which the said Elizabeth Edwards was entitled to in her own right; and that she was entitled to all the last mentioned property " during her life as heir at law to her mother, if the devises of the same to her by her said mother's will became insufficient from her not accepting the same under said devises, or from any other cause."

That the said will was incompetent to affect the title of the said Elizabeth Frisby, to " Oxford and Mount Pleasant," and lot No. 17; unless the said will imposed on her an election either to renounce in whole or in part, the devises to her by the said will, or to abide by the devises of " " Oxford and Mount Pleasant," and lot No. 17, as made by the will; and unless she did with a full knowledge of her rights in said property, make her election to abide by the devises of said property by said will.

That no such election was ever expressly made by the said Elizabeth Frisby during her life time, except so far as the same may be made by her last will and testament; and that the only acts done by her during her life, from which an election to abandon and renounce her title to " Oxford and Mount Pleasant" and lot No. 17, could be alleged to be implied or established, was her taking out letters of administration as before stated, and taking possession of the property so devised to her by her mother, and enjoying possession thereof during her life.

That after the said Elizabeth Frisby had become indebted to complainant and to others, in a very large amount, and whilst so indebted, on the 19th January 1852, she made her last will, and thereby did undertake to make or set up or establish by her admission her election, as to the devises of said property, and thereby to surrender her title in fee to said property, and to accept in lieu thereof a life estate thereof as devised by her mother. That at the time of making her said last will, she was incompetent to make an election to the prejudice of her then existing creditors, or she thereby left herself with the means or ability of paying her debts, and that said last will " was therefore in law a fraud upon your orator and others, her then creditors."

That the said Elizabeth Frisby with John J. Frisby, on the 3rd September 1847, mortgaged " Oxford and Mount Pleasant," and lot No. 17, with other properties to the Savings bank of Baltimore, to secure payment of the sum of $25,000, and interest; and on the 22nd April 1857, the said Elizabeth Frisby made one other mortgage of said premises to William D. Miller, to secure payment of the sum of $12,000 and interest. And that on the 14th July 1857, the said John J. Frisby conveyed " Oxford and Mount Pleasant" and lot No. 17, to John T. West, who subsequently conveyed the same to the appellants, Whitridge and Alexander, who now claim said premises under said deed, and certain other confirmatory deeds stated in the proceedings; and that on the 20th March 1852, John J. Frisby conveyed all his property to William George Krebs, in trust for payment of his debts; it charges, that judgments have been recovered against the said Elizabeth Frisby, by certain of her creditors, and that the creditors of the said John J. Frisby, and the said Krebs claim that said deed to West is fraudulent, or if not fraudulent was intended simply as a mortgage; and that the said John J. Frisby had an estate in said premises liable to execution by his creditors, and liable to be sold by said Krebs as trustee.

The bill then suggests the embarrassments which these conflicting claims have thrown around the title of the property, and prays that the same may be decreed to be the property of Elizabeth Frisby, and liable to payment of her debts and be sold for that purpose, and that an injunction may issue to prevent the Savings bank, Miller, Whitridge Alexander and Krebs, and the judgment creditors from making sale of said property and for general relief.

The wills of James Edwards, Elizabeth Edwards and Elizabeth Frisby, were filed as exhibits with the bill.

This last will recites, that Elizabeth Edwards at the time of making her last will, was the absolute owner of a large and valuable real and personal estate, in the City of Baltimore and Kent County, and was also possessed of a large estate which James Edwards had devised and bequeathed to her for life, with " " remainder to Mrs. Frisby; " and that she, Mrs. Frisby, well knew at the time of the making of the will of Mrs. Edwards, that she, (Mrs. Edwards,) intended and undertook thereby, to dispose of all the property she then had in her possession, and that she, (Mrs. Frisby,) had then cheerfully acquiesced in such proposed disposition of the said property, and was still content and willing after her death, that such dispositions of property should avail in law and take effect according to her, (Mrs. Edwards') intention and desire, and that she, (Mrs. Frisby,) had electto take under her, (Mrs. Edwards') will, the devises and bequests therein and thereby given to her, and had thereby given effect to all the devises and bequests therein, and that her will was to be made in execution of the power and authority in that behalf vested in her, by the last will of her mother, and she then proceeds to limit and appoint and dispose of all the estate left by her mother, Mrs. Edwards, and all and any property which passed under the will of James Edwards, and in which she would have had the absolute ownership, but for her consent and election to give effect to the devises and bequest in her mother's will, " save as to the parts thereof devised and bequeathed by said Elizabeth Edwards to my son John J. Frisby."

An injunction was ordered as prayed by the bill.

The answers of Whitridge and Alexander were filed September 7th 1851. As these defendants have no personal knowledge in regard to the circumstances which are associated with the supposed equity of the complainant, it will be sufficient to say, that they insist that Mrs. Edwards at the time of making her last will, was seized and possessed of valuable real and personal estate in her own right, which she devised and bequeathed to Mrs. Frisby for life, with remainder after (Mrs. Frisby's) death, to her, (Mrs. Frisby's) children, other than John J. Frisby; and having thus provided for those other children to the exclusion of John, out of property over which she had an absolute power of disposal, she provided for John by devising to him, after the death of his mother, " Oxford and Mount Pleasant," and lot No. 17. That this will was made by agreement between Mrs. Edwards and Mrs. Frisby, and that after the death of the former, the last named lady entered upon all the property which had belonged to her mother, intending and electing to take the same as given to her by her mother, and to give effect in all its provisions to her said mother's will, and as evidence that such election had been made they rely on the recitals in...