Scarlett v. Montell

Page, J., delivered the opinion of the Court. The bill in this case was filed for the purpose of obtaining the specific performance of a contract for the sale of certain property situate in Baltimore County. The appellant declines to perform upon the ground that the title of the appellees to the property contracted to be sold is not good and merchantable. His contention is stated in his answer to the bill of the appellees and is substantially that Arthur G. Mon-tell acquired his title by deed from Walter V. R. Berry, trustee, under the will of Wilmot Johnson, and by reference thereto it will “affirmatively appear that the title to said property did not pass thereby.” *154 The facts of the case, about which there is no dispute, are that Margaret Johnson, the wife of Wilmot Johnson, died in 1897, leaving a last will by which she “devised, and bequeathed” all her estate to her husband for life “with power to will the same to her sisters or brothers, or nephews or nieces, or- any of them in such portions as he may see fit.” In case her husband did not survive her, she gave certain pecuniary legacies to her nephew, god-son and name-sake, respectively, each of whom she names and designates, the amount each shall receive, “to be paid in cash or in the bonds of the Van Rensselear Land Company at par as her executor, (her husband), may decide ; and in case her husband survived her, she desired him “to leave said legacies to be paid after his death.” She further provided, that in case her husband did not survive her, “then after the payment of the above legacies,” she gave all the rest, residue and remainder of her estate both real and personal, to her four sisters, her brother and the, children of a deceased brother, in equal proportions, &c. In October, 1899, Wilmot Johnson died leaving a last will that appears to have been executed a few days after the death of his wife. Inasmuch as the main questions now to be considered hinge upon the proper construction of its provisions we will cite here all of its disposing parts without curtailment; viz: “ Whereas under the will of my deceased wife, Margaret Schuyler Johnson, I hold a life estate in certain property named in said will, also in certain bonds of the Van Rensselaer Land Company, and in a lot of three acres situated at the corner of Bloomsbury lane and Rolling road, I hereby devise and bequeath all the said property and bonds to my nephew, Walter V. R. Berry, in trust to carry out the provisions of said will of my wife, Margaret Schuyler Johnson, as regards certain legacies contained therein as follows : *155 “The said legacies amounting to $26,000, being the amount I hold of said bonds. “The residue and remainder of said property I give and bequeath to my nephew, Walter V. R. Berry, together with my personal estate, which I desire to be sold, one-half of the proceeds of the same I give, bequeath and devise to the said Walter Berry, and the balance to be divided between my nephews, William Bayard Van Rensselaer, Howard Van R. Howard Townsend, Stephen V. R. Townsend, in equal parts one-fourth to each.” It is agreed between the parties that the “ land records of Baltimore County do not disclose the title to any landed property in Baltimore County in the name of Margaret Schuyler Johnson, and that the said land records disclose that the only property standing in the name of Wilmot Johnson on said records is the lot of ground described in the deed from Lurman to him referred to in the agreed statement of facts of which this is a part.” It was further agreed that Theodore G. Lurman together with his wife on the i-8th June, 1897, conveyed a tract of land in Baltimore County to Wilmot Johnson and that “ the land referred to in the bill of complaint is a part of the land described in that deed.” The first parcel of land conveyed by the Lurman deed, which is fully set out in the record, is described to contain three and sixty-four one hundredths acres, situate on the western side of Bloomsbury lane; the other parcel being the easternmost half of the bed of Mellors avenue as far as the land above described extends subject to certain rights of way and drainage. From this *156 statement of facts it is clear that Mrs. Johnson at the time of her death owned no land situate in Baltimore County and that Mr. Johnson about a month prior to her decease became seised and possessed of a lot situate in that county along Bloomsbury lane containing between three and four acres. It is also clear that Mr. Johnson did not hold the “ lot of three acres ” mentioned under the will of his deceased wife ; and therefore did not and could not have intended to be understood as carrying out the wishes of his wife as expressed in her will when he included the lot in the first clause of his will, wherein he merely states of what property he proposed to dispose. He must have known at the’time he made his will, that his wife ha.d no real property situate in Baltimore County, and when it is borne in mind that the deed to him from Lurman conveying the three-acre lot was executed on the 18th June, 1897, and his own will was executed on the 30th day of September, 1897, a little more than three months afterwards, it is not reasonable to suppose that he had forgotten that he and not his wife was the owner of the lot. The dispositions of his will .moreover show that no such misapprehension possessed him. The bonds of the Van Rensselaer Land Company comprised the whole of Mrs. Johnson’s property of which we have any information. These are all disposed’ of by Mr. Johnson to the sisters and brothers, nephew or niece of his wife, and these are persons'to whom Mrs’. Johnson by the third clabse of her will authorized him to dispose of her property. If the three-acre lot had been a part of her property which passed to him under the will of his wife, he would have no power to dispose of it otherwise than in accordance with the provisions of the third clause of her will, and the fact that he has made no attempt to bestow it upon any one who belonged to the class mentioned in said clause, makes it reasonably clear that he did not regard it as within the trust imposed upon him by her will. But apart from this the language of the will itself shows wha’t Mr. Johnson meant. He says “whereas under the will of my deceased wife, Margaret Schuyler Johnson, I hold a life estate in certain property named in said will, also in certain *157 bonds of the Van Rensselaer Land Company, &c.” Later on he states what he meant by the words “certain property” “ also certain bonds, &c.” His words are, “ I hereby give, devise and bequeath all said property and bonds to my nephew, Walter V. R. Berry, in trust to carry out the provisions of said will of my wife—as regards certain legacies contained therein as follows : ” And then proceeds to designate the persons belonging to the classes whom she had designated in her will to be benefited on her husband’s death. He thus declares that what he has given to Berry in trust, is “ all the said property and bonds” he held under the will of his deceased wife, “as follows”—the bonds of the Rensselaer Land Company; and this is all that he gives to “ carry out the provisions of her will.” All the rest and residue of the property named in the first paragraph of his will, he bestows upon “my nephews.” Thus the scheme of the will is clear; it is this, he first makes disposition of all the property he held under the will of his wife, and gives it according to the directions of her will' among the several members of her family “ as he saw fit; ” carrying out however, rigidly, the provisions of the seventh clause of her will wherein she directed that certain legacies should be paid to the persons named at his death. He then proceeds to dispose of his own property, including the three-acre lot he had already mentioned in the first paragraph and “ my (his) personal estate.” He gives this to his own kin—“ my nephews, William Bayard Van Rensselaer, &c., in equal parts one-fourth to each. ” This construction of Mr. Johnson’s will would be absolutely clear but for the use of the word “in" to be found in the first paragraph. But notwithstanding its presence there, we think the intention of the testator is without reasonable doubt, when the language of the instrument is interpreted in the light of the surrounding circumstances. In such case, that is when the testator’s intention can be made out from the whole will, when read in the light of surrounding circumstances, and that intention is clear and beyond reasonable doubt, Courts will not hesitate to give effect to the true intention, although to do *158 this grammatical construction as ordinarily understood must be disregarded. In Philipps v. Chamberlaine, 4 Vesey, 57, the Master of the Rolls said: “I admit, I am bound to give words their usual and accustomed- import or their technical sense if they have any, unless upon a perusal of the whole will a contrary intention appears manifestly and, I say, unavoidably.” There can be no doubt that the use of the word “in” was a mistake on the part of Mr. Johnson, if it be held that the effect of its presence in the first paragraph is to include the three-acre lot in the property which passed to Mr. Johnson under the will of his wife. It has been shown that that was not true in fact and that Mr. Johnson could not have supposed it to be true. In Mellish v. Mellish, 4 Vesey, 49, the Court said : “The rule is that wherever there is a clear mistake dr a clear omission,- recourse is to be had to the general scope of the will', and the general intention to be collected from it.” 1 Red-field on Wills, 501, (marg. page.) To retain, the word “in” as it appears in Mr. Johnson’s will would be to make his statement absurd, for the reason that the three-acre lot was not held by him under the will of his wife nor for life only. It was his property by purchase from [the Luiynans and he held it in fee. To carry out the plain intent of the testator as gathered from the whole- will, the preposition “in” must be rejected. Ruckle v. Grafflin, 86 Md. 631; Jackson v. Sill, 11 Johnson, 219; Powell v. Biddle, 2 Dall. 70; Sargent v. Salem Towne, 10 Mass. 303. But it is further contended that the lot mentioned in the will of Mr. Johnson has not been shown to be the same which was conveyed to him by Lurman. The lot covered by the agreement of sale is described in the deed of Berry, trustee, to Arthur C. Montell- as being- a part of a tract of land called Farmlands lying on Bloomsbury lane and beginning at a point on the northeast side of a fifteen-foot private road laid out on a plat of Farmlands, being the intersection of the west side of Bloomsbury lane and the northeast side of said private lane, thence with the said lane 270 feet, thence south 790 east 235 feet to Bloomsbury lane, thence by two other courses along *159 the west side of Bloomsbury lane to the place of beginning. In the will it is described as a “lot of three acres situated at the corner of Bloomsbury lane and the Rolling road.” The objection is that the lot mentioned in the deed does not lie on the Rolling road. There is a plat in the record on which Rollingroad as marked runs parallel with Bloomsbury lane. There is no testimony in the record touching this plat. We have no means of understanding it except what appears on its face. Whether Rolling road is straight in its entire course or whether it joins with another road that runs into Bloomsbury lane we have no information. If it turns in its course, and with the road laid down on the plat as “not named,” is called the Rolling road its entire length, then the description in the will would not be inaccurate. With respect to all such matters we have been furnished with no evidence. We do know, however, that the testator held but one three-acre lot on the Bloomsbury lane and we cannot doubt that it was his intention to dispose of it and no other. If it be assumed that it was not possible to be at the “corner of Bloomsbury lane and the Rolling road,” it is evident that the testator has made a mistake in the description of his lot. It is not less clear however that, notwithstanding the misdescription, he intended to devise the particular lot lying along the Bloomsbury lane. For the reasons that have already been given we think this cannot be successfully controveted. The lot mentioned in the will, is the lot the testator then was seized and possessed of lying along the Bloomsbury láne, and being so identified that there can be no reasonable doubt as to what the lot is, the erroneous addition cannot defeat the devise. Littig v. Hance, 81 Md. 431; Criss v. Withers, 26 Md. 569; Stockham v. Stockham, 32 Md. 207; Patch v. White, 117 U. S. 210. (Decided April 2nd, 1902.) Upon the whole case we are of opinion that the objection to the title of the appellees are not sufficient to create a reasonable doubt as to its validity; (Levy v. Iroquois Co,, 80 Md. 305), and we will therefore affirm the decree. Decree affirmed.