Holzman v. Wager

*330 Pattison, J., delivered the opinion of the Court. This is an appeal from an order of the Circuit Court for Baltimore County, sitting as a Court of Equity, sustaining the demurrer and dismissing the hill filed by the appellant against the appellee. The bill alleges that on the first day of July, 1908, James Deegan died, leaving his aunt, Mary Holzman, the appellant, as his only heir at law, next of kin or distributee. That at the time of his death he was entitled to have distributed to him from the estate of his father, John Deegan, the leasehold interest in a lot of land located in Baltimore City, which, after his death, was on August 14th, 1908, by the administrator of his father, conveyed to J. Adolph Wager, executor of James Deegan, one of the appellees. That on the 7th day of July, 1908, a paper writing, dated the 8th day of April, 1908, purporting to be the last will and testament of James Deegan, was offered for probate in the Orphans’ Court of Baltimore County and on the following day it was admitted to probate as the will of James Deegan, and letters testamentary thereon were granted to J. Adolph Wager, the person named therein as executor. That the paper writing is in the form of a will, signed and sealed by James Deegan and attested by three witnesses; and, omitting the formal conclusion, it is as follows, to wit: “I, James Deegan, now residing in Highlandtown, Baltimore County, Maryland, being of sound and disposing memory and capable of executing a valid deed or contract, do make, publish and declare the following to be my last will and testament, hereby revoking all wills and testaments by me at any time heretofore made. “To wit: Leasehold Mo. 1008 Potomac street, in Baltimore City, and all moneys in bank or banks belonging to me and having been deposited there by my guardian or his agent or all money which ought to have been deposited there, minus such amounts as I have received of late only. *331 “All the aforesaid I will and bequeath absolutely to Mrs. Emma V. Harris in consideration of her raising me and taking the part of a mother. I hereby constitute Mr. J. Adolph Wager as executor of this? my last will and testament.” The bill further alleges that at the time of the death of James Deegan he was a minor under the age of twenty-one years, having been born on the 21st day of July, 1889, and therefore charges that the said will is inoperative and void as to the bequest aforesaid to Mrs. Emma V. Harris. The bill also charges that at the time of filing the bill the said J. Adolph Wager, executor, had stated no account distributing the property, but she, the plaintiff, was apprehensive that he would state such an account distributing said property to the said Emma Y. Harris, as he had said he would do. The prayer upon this bill is: Eirst—That this Court will assume jurisdiction and administer said estate under its direction and control. Second—That the said bequest of the leasehold property to Emma Y. Harris be declared null and void. Third—That J. Adolph Wager, executor, may be required to distribute the said leasehold property to the plaintiff, Mary Holzman, or if there be other personal representatives or heirs at law of the said James Deegan entitled thereto, then to such of them as may be so entitled. Eourth—That the Court will construe the will of James Deegan. Each of the defendants demurred to the bill and the Court below sustained the demurrers and dismissed the bill. It is from this order that this appeal is taken. The question before us on this appeal is, whether the bequest to Emma Y. Harris of the leasehold interest in a lot of land, mentioned in the paper writing purporting to be the will of James Deegan, was valid, he, the said James Deegan, having executed the same as his will when he was under *332 twenty-one years of age, to wit, about three months less than nineteen years of age ? It is contended, by the appellant that under the statute law of this State no will is good and effectual to pass leasehold estate if the person making the same be a male under the full age of twenty-one years. In support of this contention we are referred to the Acts of 1798,, Ohap. 101, Suh-Chap. 1, section 3, codified in the Code of 1904 as section 316 of Article 93, in which it is enacted: “That no will, testament or codicil shall be good and effectual to pass any interest or estate in lands, tenements, incorporeal hereditaments unless the person making the same, if a male, be of the full age of twenty-one years, and, if a female, of the full age of eighteen years.” We do not find that this question has ever been presented to and passed upon by this Court, although the right of a male, of sufficient discretion, under the age of twenty-one years and over the age of fourteen years, to dispose of his leasehold property has always been recognized and acted upon in this State (-even since the passage of this statute). Mr. Kinkley , in his treatise on Testamentary Law, Chap. 1, under the caption or heading “Age and Residence of Testators,” after setting out fully the section of the statute above set forth, proceeds at once with the discussion of it by saying: “The Code does not profess to prescribe a testamentary age for wills of personal property. Infants over the age of fourteen years, if males, and over twelve, if "females, may "make a will of personal property. Ho objection can be made to a will made by an infant, of the above age, merely for the want of age, if the testator had sufficient discretion. 1 Williams’ Ex. 14; 2 Blackstone’s Com. 497; 4 Kent’s Com. 506; Dorsey’s Testamentary Law, p. 48.” This author in the further discussion of this subject, in the 70th section of his work, says: “In the State of Maryland, especially in the City of Baltimore, there is a custom *333 well known to all who have any occasion to deal in buying and selling land, or in preparing papers for its conveyance, to lease land for a long term of years, namely, for ninety-nine years, renewable forever, at a certain rent, usually equal to six per cent, interest on its value when leased. Tbe interest of tbe landlord or lessee is called a fee simple interest, and is also commonly called a ground rent; but tbe interest of tbe tenant is not- so called, but is a leasehold interest. Tbe former is real estate and does not pass to administrators, but goes directly to tbe heirs without administration. * * * The latter is personal estate, and passes to tbe administrator-.” This Court in tbe case of Devecmon v. Devecmon, 43 Md. 346, quoting from 2 Kent’s Com. 242, said: “Under tbe term chattel is included every species of property which is not of a freehold nature; and a lease for a term of years, while a chattel real, is bnt personal estate, though it be for a term of a tbouasnd years; and it devolves, not on tbe heir, but on tbe personal representatives of .the deceased, and is assets in bis bands.” In this State a leasehold has always been considered personal estate, subject to all tbe rules governing that species of property, save in so far as these rules have been modified by express legislation. Culbreth, Admr., v. Smith, 69 Md. 463; Arthur v. Cole, 107 Md. -; Taylor v. Taylor, 47 Md. 299. It is contended, however, by tbe appellant that this leasehold interest, if otherwise personal property, ceased to be personal property by reason of tbe operation of tbe Acts of 1900, Chap. 207, which gave to tbe lessee, after tbe expiration of ten years from tbe date of the lease, tbe option to purchase tbe fee in said land at an amount fixed by tbe statute. This operates only as an option extended to the lessee to buy tbe fee simple in the land. The character of tbe leasehold interest is not changed thereby and remains tbe same until tbe option is exercised. Tbe lessee may never avail himself of this option, and until be does bis interest in *334 the land remains unchanged and not enlarged and is a leasehold interest, which under the laws of this State is personal property in the hands of the administrator. The contention is also made by the appellant that the determination of the question involved in this case is not dependent upon the fact whether the property sought to be disposed of by the will is real or personal property; that it may be personal property and yet be included within the class of property mentioned in the statute which can only pass by will when the person making it, if a male, be of the full age of twenty-one years, contending that even though a leasehold interest it is, nevertheless, “an interest or estate in la/nd.” as described by the statute. In the case of Devecmon v. Devecmon, supra, one of the questions the Court was called upon to determine was, “Whether the paper, being sufficient to pass personal estate, will pass leasehold estate, or whether leasehold estate is embraced by the terms of sections 298 and 301 of Article 93 of the Code, in regard to wills” ? The Court there said: “It is contended for the appellant, that the terms of these sections of the statute, are comprehensive enough to embrace leasehold estates, and that the same reason and policy of the law that requires certain formalities to be observed in devises of freehold estates, equally apply to devises or bequests of leasehold estate. But whatever may be thought of the reason or policy of the law upon the subject, it is quite clear, we think, that the terms of the statute do not include leasehold estates, as those terms are defined and explained by Coke and Blackstone.” It is true that the language of the section of the statute to be construed in this case differs somewhat from the language in the section construed in the Devecmon case. The section in that case contained the words “lands, tenements and hereditaments,” while the section before us reads, “any interest or estate in lands.” Nevertheless, we think the rear sons assigned by the Court in reaching the conclusion in that *335 case apply to this case and. will largely aid us in reaching our conclusion. In that case the Court said: “Terms for years, however, cannot be created by will, unless the instrument be executed with all the formalities required to pass real estate; because the interest, in right of which the testator creates the term, is real estate, and creating the term is a partial devise to it. Co. Litt., Har. & B.’s Ed. 111, b, note 3; Whitechurch v. Whitechurch, 2 P. Wms. 236; S. C., Gilb. Rep. in Eq. 168. But terms for years in esse, being but chattel interests, may be bequeathed by any such will or testamentary paper as is sufficient to dispose of personal property; and such, we think, has been the genei’al understanding upon the subject.” The testator in this case held only a leasehold interest in the lands, a chattel interest, which had devolved upon him by administration upon his father’s personal estate. He was not disposing of a leasehold interest created by the will out of the fee in the land held by him, the fee was in another, but by the will he was disposing of a leasehold interest which had previously been carved' out of the fee simple estate. The meaning of the language in this section, “no wj.ll, testament or codicil shall be good and effectual to pass any interest or estate in lands ” does not, we think, prohibit the passing of a term for years in esse, the same being but a chattel interest, but is intended, and should be so construed, to prevent the passing of a term for years created by the will out of the lands of the testator, in right of which he creates the term, for in such case it is a partial devise of the real estate. This, we think, is the meaning of the statute. We are therefore of the opinion that the bequest to Emma V. Harris is a valid one. In talcing the view that we do as to the validity of the bequest, we deem it unnecessary to pass upon the question of jurisdiction. We therefore affirm the order of the lower Court. Order affirmed, with costs to the appellees.