McPherson v. Snowden , 1862 Md. LEXIS 68 ( 1862 )

G-oldsborou&h, J.,

delivered the opinion of this Court:

The bill of complaint in this case, was filed in the Superior Court of Baltimore city, in 1851, by the appellees, to obtain a decree for the sale of certain real estate 'lying in the city of Baltimore, formerly belonging to Mrs. Margaret Hudson, who subsequently intermarried with John E. Dorsey.

The bill alleges that the property in question is of great value, not susceptible of division, and that if would be for the interest and advantage of all parties interested to sell it, and divide the proceeds between the parties entitled, according to their respective interests.

Upon the bill, answers and depositions, the Superior Court decreed a sale of the property as prayed, and no exception was taken to the action of the Court until the case was referred to the auditor, to state an account distributing the proceeds of sale.

The auditor, in the performance of Ms duty, designed to state an account as directed, by the solicitors of Mrs. Fitzhugh, and also stated another account according to the view of the solicitors of the Snowdens.

These accounts are respectively marked B and 0, in the record.

The solicitors of the parties in interest agreed, in the Court below, as follows: “For the purpose of a speedy decision of the questions involved in the distribution, that a pro forma decree shall bo passed by the Court, allowing the exceptions filed by the complainants to account B, reported. by the auditor, and distributing the fund according to account C, prepared and stated by the auditor, in accordance with the instructions of the complainants’ solicitor ; it is further agreed, that the respondents, or any of them, or any of the parties appealing from said decree, may raise on such appeal any questions affecting their respective interests, which may arise under the account thereby to he ratified, and may maintain any objections thereto which could have been taken in this Court.”

In conformity with this agreement, the Superior Court passed a decree, and from this decree an appeal was taken,

It becomes our duty, in settling tbe conflicting claims of tbe respective parties, to advert to tbe origin of those claims, as they are presented in the record of this case.

Mrs. Margaret Hudson, being seized and possessed of valuable real estate at and near the intersection of Baltimore and South Charles streets, in the city of Baltimore, conveyed the same to William Graham, and his heirs, by deed bearing date the 11th day of August 1801, with power to Mrs. Hudson to declare the uses of this property, which, by deed dated the 10th day of May 1811, she did declare, as follows: “In trust, that William Graham shall hold the real estate for the use of Mrs. Hudson (then Mrs. Dorsey) during her life, and from and after her death, to hold all that three-story brick warehouse, at the south-west corner of Baltimore and Charles streets, for the use of Mrs. Margaret Nicols, the daughter of Mrs. Dorsey, and the heirs and assigns of Mrs. Nicols, forever, in fee-simjfle, and as to the remainder of said property, in trust for the use, benefit and behoof of the four daughters of the said Margaret Dorsey, namely, Sarah W. Hudson, Margaret Nicols, Rebecca Hudson, and Isabella Pottinger, and their issue, so that during the life of the longest liver of the said four daughters of the said Margaret, they and the survivors and survivor of them, and the issue of any of them who shall have died, be suffered and permitted to receive and take the annual or other rents and issues of the remaining portion of property mentioned and recited in the deed to William Graham, and the same apply to their separate uses respectively, without being in any manner subject to the disposition, power or control of their respective husbands, or in any wise liable or bound for the payment of their debts, contracts, or engagements; the child or children of any deceased daughter of the said Margaret Dorsey to take the part or portion which their or its parent would, if living, be entitled to, and from and after the death of all the aforesaid daughters of the said Margaret Dorsey, then for the use and behoof of all the issue of all the daughters of the said Margaret Dorsey, and their heirs, in fee-simple.”

Subsequently, on the 17th day of April 1827, Mrs. Nicols, together with William Graham, executed a deed for the property held by William. Graham for the use of Mrs. Nicols, to John J. Donaldson, who, on the same day, reconveyed the same to Graham, in trust for the use, benefit and behoof of Sarah W. Hudson, Margaret Nicols, Rebecca Hudson, and Isabella Pottinger, and tbeir issue, so that during the life of tlio longest liver of tire said Sarah W. Hudson, Margaret Nicols, Rebecca Hudson, and Isabella Pottinger, they and the survivors and survivor of them, and the' issue of any of them who shall have died, be suffered and permitted to receive and take the annual or other rents and issues of the aforesaid property, and the same to apply to their separate uses respectively, without being in any manner subject to the disposition, power or control of tbeir respective husbands, or in any wise liable or bound for tbe payment of tbeir debts, contracts or engagements, the children or child of any deceased one to take the part or portion which their or its parent would, if living, he entitled to, and from and after the death of all the said Sarah W. Hudson, -Margaret Nicols, Rebecca Hudson, and Isabella Pottinger, then for the use and behoof of all their issue, and their heirs, in fee-simple.

So that the whole of this property became vested in William Graham, for the use of the four daughters of Mrs. Dorsey, in the manner stated in the deeds of 1817 and 1827. Ail the four daughters survived their mother.

Sarah and Rebecca still survive, unmarried. Mrs. Nicols bad one daughter, Ann Rebecca, who intermarried with Thomas Snowden, and died in her mother’s lifetime, leaving the children named in the record.

The other daughter, Isabella, intermarried with Thomas B. Pottinger, and had three children, Sarah, who intermarried with Peregrine Fitzhugh; Mary B. Pottinger, born in 1818, and died between two and three years old; and JohnH. Pottinger, one of the defendants, born in 1821. No question is made as to the manner of distributing the profits of the estate during the lives of the survivors and survivor of the daughters. But the children of Mrs. Pottinger insist that, on the death of all the daughters of Mrs. Dorsey, the principal estate is to be distributed amongst the children of the daughters per capita; that is to say, ' one-fourth part to the children and heirs-at-law of Mrs. Snowden, who was the only child of Mrs. Nicols, one-fourth to each of the surviving children of Mrs. Pottinger, in their own right, and the remaining fourth part to those surviving children, as survivors or heirs-at-law of their deceased sister. On the other hand, the children of Mrs. Snowden claim that the distribution is to be made to the children of the daughter per stirpes; that is to say, one-half part to the family or descendants of Mrs. Nicols, and the remaining half part to the family or descendants of Mrs. Pottinger.

By reference to the particular expressions used by the declarants, both in reference to the disposition of the rents, issues and profits, and in the disposition of the corpus of the estate, we find that the declarants use the word “issue;” and it justifies us in applying to that term, thus tpsed, the rule, that technical words are to be construed more strictly in a deed or grant than in a will. In the latter, the word “issue” is not a technical expression, implying prima facie words of limitation, but will yield to the intention of the testator, to be collected from the words of the will. See 27 Eng. Law & Eq. Cases, 375. In the former, it is otherwise. In Horne vs. Lyeth, 4 H. & J., 439, Judge Walter Dorsey very elaborately reviews this subject, and. lays it down emphatically: “That tho word ‘issue/ in its natural and often in its legal sense, means ‘children/ and is therefore a word of purchase, no one will question.”

In this case it is conceded on both sides, that the words “issue” or “children” are used as synonymous. Considering the two clauses in the grants or declaration of uses, to which our attention is directed, we are forcibly struck with tho precaution taken by the declarants, fin providing for the disposition of the rents, issues and profits. Specially connecting in that clause the issue or children with their parents, and making those parents not only the medium of enjoyment, but through them indicating the proportion to be enjoyed by their children. In reference to the corpus of the estate, the issue or children are aggregated into a class, with no relation to their parents which would indicate that the issue should take through Them; and shows that the estates given to the children “were to be tho ground-work of succession of heirs, or, in other words, the children were to be tbe termini for the succession to take its course from.” See same case, 434. Tbe terms of tbe grant, “to all the issue of all the daughters,” entirely exclude the idea of a representative right through the daughters, and make that issue, or the children of the daughters, the immediate and equal recipients of the benefits of tbe grant.

We think that it was successfully contended by the appellants’ counsel, that the children of Mrs. Snowden and Mrs. Pottinger took a vested remainder, dependant upon a life-estate pur auter vie; that is, for the lives of tho surviving aunts, or the survivor of them, subject, however, to open and let in any after-horn child or children, to participate in the fee, and any who might he horn during the life-estate of the aunts, or the survivor of them.

If, therefore, the issue of the daughters take in their own right, and not by representation, they take jner capita. See 3 Vesey, 260. The issue in this case, when considered as a class, is illustrated and sustained bjr the following quotation from 2 Powell on Devises, 330, 331: “Where a gift is made to the children of several persons, whether it be to the children of A & B, or to the children of A and the children of B, they take per capita and not per stirpes.” It'was contended by the appellees' counsel, that if the issue took the estate per capita, they became joint tenants with the right of survivorship. This would by no means follow, under the circumstances of this case; for it is conceded that children born of the daughters during the life of the aunts, would be let in to take a share of the estate, as in the case of John and Mary Pottinger, who were not born at the time of the execution of the deed of 1817, and there being a want of unity of time in the vesting of their title, one of the. ingredients of joint tenancy is wanting. Beside this, the unity of title was severed by the mortgages mentioned in the record, and as to the deed of 1827, no joint tenancy can be held to exist, because of the operation of the Act of 1822, ch. 162, which provides that no deed, devise, &c., shall be construed to create an estate in joint tenancy, unless it is expressly provided that the property conveyed by such deed, &c., is to be held in joint tenancy.

The case of Levering vs. Levering, 14 Md. Rep., 30, was urgently pressed upon this Court, hy the appellees, as demonstrative of the proposition, that the issue of the daughters, in this case, took the remainder of the estate per stirpes.

It may be conceded that, in some respects, there is a similarity in the two cases. This, however, is a grant, and that the case of a will, in which the Court sought to gratify the intention of the testatrix.

We find in the case of Levering, that the Court say: “Having there (in the first clause) shown an intention to give to the children of one daughter the precise one-half of the estate which their mother had, no matter which of the daughters of the testatrix should die first, whether it might happen to be the one leaving the largest or smallest number of children, it would seem right to suppose the testatrix had a like intention of giving to the children of each mother the share of the mother, when providing for the decease of both of them.”

It may, therefore, be well said, that the result at which the Court arrived, in Levering vs. Levering, was inevitable. Because, in construing the words of the will, the Court found the intention of the testatrix to be, that the children of the daughters should fake the property as the representatives of their respective mothers.

In this case the words of the grant are not the same, and no such intention is expressed or to bo inferred from the language employed. The corpus of the estate is not disposed of until the happening of the contingency of the death of all the daughters, and then it is given to all the children as a class, who must necessarily take per capita.

In our opinion, therefore, the rents, issues and profits are to he distributed as follows: One-fourth to the children or descendants of Mrs. Pottinger, one-fourth to the child or descendants of Mrs. Nicols, and one-fourth each to Sarali Hudson and Rebecca Hudson, the two unmarried daughters of Mrs. Horsey, during their lives. Upon the death of both Sarah and Rebecca Hudson, the children of Mrs. Pottinger and Mrs. Nicols will take the whole estate per formarn cloni, per capita; that is to say, after the payment out of the fund of the costs of suit in this Court and the Court below, Mrs. Margaret Fitzhugh, representing the issue of Mrs. Pottinger, is entitled to two-thirds of the proceeds of the property which sold for 040,000, and three-fourths of tbo proceeds of the property which sold for $60,000; and the Snowdens, representing the issue of Mrs. Nicols, are entitled to the other third in the first named property, and one-fourth of the proceeds of the latter.

The trustees are to be allowed, out of the proceeds of sale to which Mrs. Eitzhugh is entitled, the claim paid by them to the executors of John Johns. They are also to be allowed, out of the proceeds of sale to which the Snow-dens are entitled, the claim paid by them to the Savings Bank of Baltimore.

Penn and Mitchell are entitled only to the distributive share of Richard N. Snowden, which he acquired as heir-at-law of his mother, Ann Rebecca Snowden.

The share of Richard N. Snowden, to which he is entitled as heir-at-law of his sister, Ella Snowden, is not, in our opinion, embraced by the terms of the deed of mortgage from Snowden to Penn and Mitchell, as those terms are confined to “all the title and interest he” (Snowden) “may or will possess, either in his own right, or as heir-at-law of Ann Rebecca Snowden, by reason of all or any of the deeds, conveyances and declaration of uses” mentioned in the deed of mortgage.

In disposing of the claims of Turner, James and others, as attaching creditors of Richard N. Snowden, upon an attachment laid in the hands of the trustees, we are to determine whether the fund in their hands, for distribution, can be reached by attachment’before the distributive share of their debtor is ascertained by a final audit; and, if not, then to determine whether this Court has power, by any order, to give the attaching creditors the practical benefit of a judgment of condemnation of their debtor’s distributive portion yet to be ascertained.

There are several cases in which it has been declared, that a fund in the hands of a trustee, for distribution in equity, is not liable to attachment before a statement and ratification of a final account. See 4 Md. Ch. Dec., 412. 7 G. & J., 421. Iii Cochey vs. Leister, 12 Md. Rep., 124, the Court say, that an attachment would not lie before a final audit. We do not, however, understand from these cases that an attachment cannot be issued and laid in the hands of a trustee before a final account, and that it would not be effective upon a sum ascertained by such an account to be the distributive share of the debtor in the attachment, but that the process, before tbe account is stated, cannot affect the fund or the trustee, or compel any modification of the final account, for the benefit of the attaching creditor.

(Decided December 5th, 1862.)

Assuming that these authorities justify the conclusion we have stated, it is obvious that the attaching creditors in this case have acquired no rights of which wo can take cognizance, whatever their rights may bo in a Court of Law, when the distributive share of their debtor is ascertained by the final audit.

The process of attachment is a special statutory remedy, and in resorting to it, the terms of the law conferring it must he strictly pursued; the jurisdiction being exclusively in a Court of Law, and in a case where, from a conflict of jurisdiction, or from other causes, the remedy by attachment is not full and completo, a Court of Equity would seem to have no power to pass any order to aid or perfect it.

The exceptions of Penn and Mitchell, wo regard as disposed of in the opinion expressed by this Court on the several questions involved in this ease.

Decree reversed and canse remanded, for further proceedings