Moody v. Hall

Miller, J., delivered the opinion of the Court. The only question presented by this appeal is whether the appellant, John S. Moody, is entitled, as surviving husband, to any interest in the estate, real or personal, of his wife, whose maiden name was Louisa Victoria Torrance, and who died on the 19th of March, 1882, intestate, and without leaving children. Her heirs-at-law rely upon the following deed as depriving the husband of all interest in her property: “ This deed, made this seventeenth day of J une, in the year eighteen hundred and seventy-eight, by Louisa Vic [524] toria Torrance, of the City of Baltimore and State of Maryland: Witnesseth, that in consideration of the sum of five dollars, and for divers other causes and considerations, the said Louisa Victoria Torrance doth grant, bargain and sell, assign and transfer unto Eleanor F. Conner, her heirs and personal representatives and assigns all her estate, real, personal and mixed, of whatsoever kind and wheresoever situate : To have and to hold the same for the following trusts and purposes, to wit: To permit and suffer the said Louisa to take and receive for and during her natural life, the net income, issues and profits thereof, to her sole and separate use, and also to alien, sell, mortgage or incumber the same at her will and pleasure, with full power to devise the same whether married or single, and failing to do so, and dying intestate, then at and after her death to hold the same for the use of her children, or their descendants living at her death, the descendants of any child dying to take the part its or their parent would have taken if living, and if there he no child or descendants of any child living at her death, then to hold the same, to the use of the heirs-at-law of said Victoria; and in the event of any sale of any part of said property by the said Victoria, under the power herein reserved, the purchasers shall, in no event, be hound to see to the application of the purchase money, the said property now consisting of what is set forth in a schedule appended hereto; and that the said Louisa covenants that she will execute such other assurances as may be requisite. Witness her hand and seal. “Louisa Victoria Torrance, [seal.] “Test: John 8. Moody, Geo. McGaffray.” This deed was duly acknowledged on the day of its date and execution, and was duly recorded on the 20th of December following. The particular property now in con [525] troversy is an undivided interest in leasehold property held under a lease for ninety-nine years renewable forever, and this interest the wife acquired under the will of her aunt, Louisa Torrance, who died on the 5th of May, 1878, and it is mentioned in the schedule annexed to the deed. In order to ascertain the nature and character of this instrument, the Court is not only at liberty, but is bound, to look to the circumstances surrounding and attending its execution, and when this is done we find no difficulty in determining its effect so far as the present controversy is concerned. It was executed by Miss Torrance only three days before her marriage with the appellant, who was one of the witnesses to it, and it was placed on record some months after the marriage. It deals with her own property and disposes of the whole of it. It was, therefore, manifestly a deed executed in contemplation of marriag'e, and as an ante-nuptial settlement of her property. It is true the intended husband was not a technical or actual party to it, but the inference is irresistible that he knew of its provisions, as well as the purpose for which it was executed, and assented thereto. ISTow it is clearly settled that whenever it appears from the face of such an instrument that the intention is to carry the title to the property beyond the period of the wife's death and to exclude the husband, that intention must prevail, and the Courts will give a liberal construction to its language in order to discover and effectuate such intent. Ward vs. Thompson, 6 G. & J., 349; Waters vs. Tazewell, 9 Md., 291; Townshend vs. Matthews, 10 Md., 251; Hutchins vs. Dixon, 11 Md., 29; Denton vs. Denton, 17 Md., 403; Marshall vs. Beall, 6 How., 70. In some of these cases the provisions of the conveyances are very similar to those in the present deed, while in others the intention to exclude the husband is much less apparent; but the rule of decision is the same in all. Applying that rule to this deed, it is mani [526] fest that the intention of the grantor, who was then about to be married, was to settle her property upon herself for life, with full power' to dispose of the same by deed or will, and if she did not so dispose of it, and died intestate, then at her death upon her children, if she left any, and if not, then upon her heirs-at-law. The intent to carry the title beyond her life' and to exclude her husband is plainly manifest, and, in our opinion, so far as his rights are concerned, that intent is operative and he must be excluded, notwithstanding the Rule in Shelley’s Case should be held to apply to this deed. We are not to be understood, however, as expressing any opinion whether this rule is applicable or not. The case does not require a decision of that question. Nor is the case, in our judgment, affected by the fact that this deed was executed since the passage of laws which have given to married women greater power and control over their property than they formerly'' had, and taken away from husbands the rights which the common law gave them. (Decided 26th March, 1884.) Decree affirmed, and cause remanded.