Chew v. President, Directors & Co.

Magruder, J., delivered the opinion of this court. This is an appeal from a decree of the court of chancery, dismissing the bill of the appellant. He is the executor of Rebecca Gibsoii, the widow of Jacob Gibson, who died in January 1818. The testator, it appears, died the owner of a large estate, and by his will left to his widow, personal property, some privileges, and also $500 payable to her annually by her two sons, to whom in various parts of his will he devised a large estate. This provision made for the widow, was expressly declared to be in lieu and satisfaction, both of her dower and of her thirds of the personal estate. Of this provision she accepted. On the 10th of June 1846, she filed this bill of complaint, and alleges that she has received no part of the annuity thus given her; insists that the real estate devised by her husband to her two sons, Edward and Fayette, is charged with the payment of the annuity, and asks a sale of the real estate devised to them for the payment of what is now due, and to secure the payment of the annuity, as it may hereafter become due. The persons who were in possession of the estate devised to Edward and Fayette Gibson at the time when the bill was filed, are all of them made defendants. The widow being since dead, the appellant as her executor was made the complainant in the court below. In the argument of this case it has been insisted, that as both Edward and Fayette Gibson are dead and insolvent, unless the. real estate devised to them be made answerable for the annuity, she cannot receive that which she agreed to accept in lieu of dower, and ought to have dower allowed to her. — 371 — It would seem to be a sufficient answer to this to say, that the bill of complainant is not so framed as to make it a subject of inquiry in this case, whether and upon what terms, she is entitled to dower. No doubt a widow after accepting the provision made for her in her husband’s will, may become entitled to dower. Such is the law, because the act of 1798, ch. 101, sub-ch. 13, makes it to be law. That sub-chapter first provides that if the devise of other real and personal estate, or of both, shall be expressly in lieu of her legal share of one or both, she shall accordingly be barred, unless she renounce as aforesaid. What is given to this widow by the will is expressly given in lieu of her dower and interest in the personal estate. This provision made for her, she expressly accepted. A widow cannot be compelled to accept of the provision in the will in lieu of her dower, but having accepted of it she cannot in all cases claim dower in lieu of that provision. Whatever right she has to claim dower afterwards, she must derive from the law, aud this is to be found in the same sub-chapter and in these words, “if in effect nothing shall pass by such devise she shall not thereby be debarred whether she shall or shall not renounce.” It is understood that in asking to be endowed of any part of the real estate of her husband, she relies on this clause of the act of 1798. If so, there must be satisfactory proof that her case comes within this provision of the act of Assembly. She agreed to take the property bequeathed to her, and 0500 per annum, payable by her two sons, with some personal property aud certain privileges, in lieu of her dower and thirds. Did nothing pass bjr these provisions in the will ? Was the annuity payable by the sons, valueless at the time she agreed to accept it ? What were the privileges worth to her? What personal property did she receive? These are questions, proper to be settled if the widow in this case had. expressly claimed dower, notwithstanding her acceptance of the provision made for her in lieu of her dower. But she is not in court to make known to us, that nothing passed to her by the devise. It is true it is suggested that if she could say so, then she — 372 — would have a right to demand dower. All her allegata however go to show, that if she is not to suffer by reason of want of due diligence, there is an ample fund in real estate to satisfy every cent which she claims, and to which she can have no claim, while she can ask for dower. We must say then that dower, or damages for the detention of her dower, cannot be awarded to her representative in this suit. Is she entitled to all or to any part of the annuity left to her by her husband's will, and to claim that the estate devised to the two sons be charged with the payment of it in the hands of those who now own it ? This we are nest to decide. The present owners of this land are to be considered bona fide purchasers for valuable consideration. It is true there is some testimony designed to satisfy us, that the Farmei's Bank of Maryland purchased a part of it at something below its value. The answer to all this is, that such an investigation as this would lead to, is entirely out of place here. If any person interested in the estate had any objection to the sale, the objection ought to have been made at the proper time. The sale being ratified, and all persons having acquiesced in it, it is not now to be inquired whether a better price might not or ought not to have been obtained. To be sure, the land was purchased subject to all the rights and privileges of the widow. And this seems to be a proper place to inquire whether this particular land when sold, was subject to any claim of the widow. The real estate which was devised to Edward and Fayette Gibson, and which it is thought was charged with the pa} -. ment of this annuity, consisted principally of land which had been previously mortgaged by the testator to the Farmers Bank of Maryland. The debt intended to be secured being unpaid, a decree was obtained in the court of chancery, for the sale of the mortgaged premises, and at this sale the bank became the purchaser of the land devised to Edward Gibson. Now whqt interest in this land was charged, (if the widow had any lien upon it) with the payment of this annuity ? Certainly, ¡only that which a morgager has a right to devise, and a moi-t-r — 373 — gagor can only devise the equity of redemption. If the debt, which the mortgage was designed to secure, had been paid off without any sale of the mortgaged premises, then to be sure, the devisee would have had a more valuable estate than the equity of redemption, and the widow’s security for her annuity, (if the land was by the will charged with the payment of the annuity,) would have been improved. But the land was sold to pay the debt, for which it was previously mortgaged, and when sold, there remains no equity of redemption as a security for the annuity. If the fund brought into chancery by the sale of this, and the rest of the mortgaged promises, had been more than sufficient to satisfy the mortgage, then to that surplus the widow might have preferred a claim, in opposition to the claim of the devisee. See 1st John. Chy. Reports, 45. But there was no surplus, and no longer any equity of redemption, and of course, so far as it concerns this estate purchased by the bank it is needless now to inquire whether the will did or not charge it with tile payment of the annuity. There is to be sure some difference between the sale to the bank by the court’s trustee and that made of other parcels of the land mortgaged. But we cannot discover in this record, or in any of the proceedings in any other case to which we llave been referred, that to the other parcels of land conveyed by the mortgage deed, she would now have any claim. Surely it cannot be insisted, that because the widow is to be deemed a purchaser for a valuable consideration, she could take under her husband’s will any land, which her husband had previously mortgaged, and which it became necessary to sell in order to pay the mortgage debt. She might have been entitled to dower in the land mortgaged, but she agreed to take what her husband agreed to give, in lieu of her dower, and she can no longer claim that which she had relinquished, unless in the case spoken of in the act of 1798, and then she must show that hers is such a case, and cannot well show it in a bill filed expressly to recover that which she agreed to take in lieu of her dower in this as well as the rest of the real estate. No offer by the husband though accepted by the wife, will deprive a — 374 — mortgagee of his security. They cannot make mortgaged premises answerable for the widow’s claim to dower in other lands. We have been required in the course of the argument to assume that the widow was rather more ignorant than the law will allow her to be. When such a devise is given, and expressly declared to be given in lieu of dower, a widow is called upon to determine, and is allowed what the law deems ample time to determine whether she will accept in lieu of her dower that which her husband offers to her. The presumption is that she gets the necessary information, takes proper advice, and knew what she was to receive and what she gave up. In this very case we cannot doubt that she relinquished her dower for a very inadequate price. But because of this, she cannot claim her dower after she has relinquished it. The court has been frequently referred to expressions which are to be found in a former decree of this court. The real estate of which Jacob Gibson died seized, was directed to be sold subject to the devises to the widow. These words it is thought recognise, if they do not establish, something very much in favor of the appellant. The decree alluded to was passed for the sale of so much of the real estate of Jacob Gibson, as was necessary to pay his debts of every description. How much of that estate or what part of it would be sold for the purpose, the court could not then determine. Certainly in sales made for the benefit of other creditors than those who had mortgages, the court could not interfere with any of the legal rights and privileges of the widow. Surely the court could not mean by the words repeated to us, that the testator by his will had given to his widow rights-which she might claim, though thereby the security of the mortgagee was destroyed, or even impaired. It sometimes indeed happens that the same question will come up for the decision of the court, when, indeed, the facts are so different as to require, apparently, a different decision. A. widow may recover dower before foreclosure, though after the sale of the mortgaged premises, it must be pronounced that she has no claim. 5 John. Chy. Rep., 452. — 375 — There is, however, one defence to this claim, a decision of which, in favor of the appellees, will render unnecessary an examination of other points which have been argued. This bill was filed on the 10th day of June, in the year 1846, and it is designed to assert a claim to an annuity, payable ever since the year 1818, and no part of which, it is alleged, lias ever been paid, and to recover which no legal sleps appear to have been taken. It is said in answer to this, that the widow was not apprized, until the decision of this court in 1839, that the land devised to her two sons, Edward and Fayette, was charged with the payment of her annuity. She then agreed to accept, (in lieu of her dower) of $500, for which the sons were personally responsible, and without any suspicion that she had the security on which she now relies. But the objection is not that she did not proceed against the land devised 1o the sons, and which might or might not be answerable for the annuity, but that she never made an effort to recover that annuity of her debtors, who, according to the case of West and Biscoe, 6 H. & J., 460. were personally responsible. The land devised to her two sons, may or may not be chargeable with this annuity while it is to be paid, but is certainly no security for its payment,'when for any reason it is presumed no longer to be due. The annuity is the debt, the sons are the debtors, and any security which the creditor had for the payment of it, ceases to be such, whenever the debt is proved, or presumed to be paid. For many years after the same was payable, it is not denied, that the persons who alone were hound to pay it, were able. If we look at the proof in the record, we are brought to the conclusion, that years before the filing of this bill, the widow chose to have., and to acknowledge that she had, no claim against her children, though subsequently, she would seem to be willing to make, if she could, the land devised to them, answerable, after it had been sold to bona fide purchasers. She relies upon ignorance of her title, and it is thought, that until this disability is removed, she was not obliged to assert — 376 — her title. We are told, however, that the purchasers who bought without notice, had notice, because the will in the orphans court was notice to them. But was not she equally bound to take notice of the will and proceedings upon it in the orphans court? Had she not actual notice of her own act in that court, the acceptance of the provision made in the will for her, which it is said, gave to her this right to charge a portion of the real estate with the annuity, which was taken asan equivalent for her dower in the whole of the real estate? She did not sleep upon her rights, it is said, and this because, until this court in 1839 instructed her otherwise, she was not aware that she had the right which she would now assert. But did not the self-same decree which thus instructed her, also apprize her,, that the whole of her late husband’s real estate, if needed, was about to be sold for payment of his debts? The objection is not so much to her failing to disclose the existence of her lien,, as of the- amount of her claim against her sons, an amount which nobody is bound to know, unless she herself thought proper to disclose it. Yet when she is heard to say any thing about her claim against her sons, she speaks of it, not indeed as a claim which never had existed, but one which was relinquished. As early as the year 1839, it is admittted, that she had the notice which ought to make her more vigilant and active in the assertion of her claim; yet even then she remains silent, until 1846, during which time touch of the estate is disposed of. See 5th Johnson’s Chy. Cases, p. 561, for the legal effect of this silence. What is the effect of all (his negligence on her part to make known the claim which it is now said she has upon this veal estate, in the hands of bona fide purchasers, for a valuable consideration? Let us first inquire what our own decisions say in answer to this inquiry. In the case of Steiger’s Adm’r, vs. Hillen, 5 G. & J., 121, this court said, “after the lapse of twenty-five years from the inception of title, a delay entirely unexplained, and without any — 377 — claim whatever in the intermediate time being made, it would seem to be against public policy and convenience to allow the commencement of a controversy for rents and profits.” This is quite as applicable to the case before us as to the case in which the remark is made. The widow has never insisted upon the payment of her annuity; she has remained silent, concealing her claim during a longer period of time. It is said, however, that this case was overruled in the case of Sellman vs. Bowen, 8 Gill and Johnson. In that case it is said, “that in Steiger and Hillen, countenance is given to the doctrine that at lav;, a widow may recover from the alienee of her husband her damages;” and it was added, “ that it is only in a court of equity that the rule will apply,” nothing else that was said in the case of Steiger and Hillen is questioned. Very recently too, in the case of Kiddall vs. Trimble, Ex'cr of Jacob, (decided December term, 1849, 8 Gill, 207,) this court, after quoting from Steiger and Hillen, what is above given,added, £ ‘ it would be difficult to decree rents and profits in this case without seeming to question the correctness of that decision.” This surely evidenced no disposition in the court, then to deny the correctness of any thing in Steiger and Hillen touching the law of this case. Such ought now to be considered settled law in Maryland. In England, excuse is often found for the delay of a widow to assert her rights, in the difficulty of ascertaining “ the lands out of which she is dowable, and the persons against whom to bring her writ;” the title papers are not within her reach. In the case before us no such excuse can be cíferctL Yet in Enpland, we find every where repeated with approbation, the remarks of Lord Camden, 3 Bro. Chy. Rep., 630. “ Laches and neglect are always discountenanced, and therefore, from the beginning of this jurisdiction, there has always been a limitation to suits in this court. Expedit reipublicce ut sit finis Utiurn, is a maxim which has prevailed in this court at all tirites, without the help of an act of Parliament. Nothing can call Forth this court into activity but conscience, good faith, and — 378 — reasonable diligence. Where these are wanting, the court is passive and does nothing.” With the testimony to be found in the record, it can scarcely be believed, that if this bill had been such a bill as that in West and Biscoe, brought to. recover these annuities, of Edward and Fayette Gibson, the claim could not be sustained. The court would presume, that the annuity had been realized ; the legal presumption would “ hold the place of particular and individual belief.” And surely, if the annuity could not be recovered from those who undertook to pay it, the security for that annuity, even if there be any such security, could no longer be regarded as answerable for it. We forbear, (as the case does not require it,) to say whether, in our opinion, the land devised to these two sons was charged with the payment of this annuity. This is a question of intention, and cannot well serve as a precedent in any future case. A receipt given by Mrs. Gibson to Fayette Gibson, bearing date, November 15th, 1841, for “ $5, in full of all money due from said Gibson to me, for rent or otherwise,” has been introduced into the case by the appellees, and this, it seems to be thought, although it may reduce considerably the claim of the appellant, furnishes evidence, that the annuities which became due subsequently to its date, are not to be presumed to have been paid. This paper, per se, does seem to warrant such a conclusion; but then there is abundant testimony, that this receipt was executed, not to be evidence against the widow, but, as she herself stated at the time of its execution, “ to avoid any difficulty between her children and grand-children after her death.” The presumption too, furnished by the circumstances relied on, is not that either son paid the last year’s annuity, but, perhaps, that the mother, who took so little in lieu of her dower, when, whatever she took was taken from her children, as soon as she discovered their embarrassments, was content to release what she had a right to claim of them, in consideration of the support which she afterwards received from them, if not for other considerations, of which it would be unreasonable to ask the appellees to furnish the evidence. — 379 — We can discover no reason for reversing or modifying the decree of the chancellor, and approve of what he has said in regard to the staleness of this demand. DECREE AFFIRMED WITH COSTS.