Mitchell's Lessee v. Mitchell

Goldsborotjgh, J., delivered the opinion of this court. This appeal is taken from'a judgment of the Superior court of Baltimore city, rendered in an action of- ejectment, brought by the appellant against the appellee, for the recovery of a lot of ground in the city of Baltimore. At the trial of the cause, two prayers were presented to the court, one at the instance of the plaintiff, which was -rejected,- and the other by the defendant, which was granted. To this ruling of tbe court, the plaintiff excepted. By an-examination of these exceptions, we find that the only-question for. us to determine, is, had the plaintiff such a legal title to the property in dispute that he could maintain his action This depends-upon the true construction of the last will and-testament of Francis J. Mitchell, set out in the record.- The appellant insists, that upon the true- construction of the [411] will of the father, the estate limited to James D. Mitchell, was to determine on the marriage of the appellee, or on her death without having been married, or in the event of her becoming united to any religious sisterhood for ten years in succession, whichever of those events should first happen;—on the happening of the first contingency, the legal estate in the premises in question, was to vest absolutely in the appellee; on the happening of either of the other two events contemplated, the property devised, was to belong to and devolve on the sons, Francis and Henry, and by the death of the former without issue, and the religious profession of the appellee, has vested wholly in the lessor of the plaintiff. The theory of the appellee is, that upon the death of James D. Mitchell in 1837, the legal estate which had been expressly devised to him in fee, descended, by virtue of the words of inheritance contained in the clause creating it, upon her as his only heir at law, she being his sister of the whole blood, and that, consequently, she having been thus vested with the legal estate, became her own trustee to the extent of her right to receive out of the rents of the trust estate, the sum of two hundred dollars per annum, notwithstanding the fact of her joining a religious sisterhood. The view entertained by the appellant is, in our opinion, clearly correct. The testator was a gentleman of large fortune, and the provisions of his will indicate great care in the disposition of his property. In reference to his daughter, he appointed her brother, Jamos D. 'Mitchell, her trustee to manage her portion while she remained single, and during that period when, if she joined a religous sisterhood, she might exercise the privilege of changing that mode of life and return to the world. That he designed a further disposition of the property involved in this suit in certain contingencies, is manifest from the concluding part of the fourth item of his will. In that, the testator provides as follows: “And in tile mean time, that the surplus proceeds, rents, issues and profits of the same estate, be by the said James Davidson Mitchell invested in [412] some productive fund or stock for the use and benefit of the said Sarah Elizabeth Mitchell, if she should at any time hereafter determine to leave the sisterhood to which she may become united, an fqr the person or persons entitled to the same, agreeably to the provisions hereinafter contained.” (Decided June 19th, 1862.) By the fifth clause or item the testator bequeaths and devises thus: i‘And lastly, it is declared to be my will and desire, in the event of the death of my said daughter, Sarah E. Mitchell, without having been married, or in cft.se she should be united to any religious sisterhood as aforesaid, for ten years in immediate succession, that said property so devised and bequeathed in trust for her as aforesaid, and all interest accrued upon the stock or fund aforesaid, as well as that stock or fund itself, shall belong to, and devolve uppn, my .aforesaid sons, Frances J. and Henry S. Mitchell, or the suryivor of them, their or his heirs, executors, administrators and assigns, fQrever, subject, however, so long as the said Sarah Elizabeth Mitchell shall live, to the payment to her of the aforesaid annual sum of two hundred dollars, ayd no more, and to, for,- or .upon no other use, trust, intent or purpose whatsoever.” It was insisted in argument by the appellee’s counsel, that the word, “or,” in this clause of the will, should be construed “and,” thus requiring both contingencies to happen before the trust estate would cease. This is not our view. We regard them as alternative, and whichever might first happen would divest the title of the trustee and devolve .the same upon the devisees named in that clause. Judgment reversed and prpcedpfido awarded,