Roser v. Slade , 3 Md. Ch. 91 ( 1851 )

The Chancellor :

This case is brought before the Court, and submitted by agreement of parties upon demurrer to the bill.

The bill is filed by John and Elizabeth Ann Roser, his wife, the latter being one of the children and heirs-at-law of John Slade, deceased, one of the brothers of Josias Slade, also deceased, but whether testate or intestate does not appear. It is alleged in the bill, that Abraham Slade, the father of John and Josias Slade, being seized of real estate in Baltimore County, died some time in the year 1847, leaving a will duly executed, containing the following clause:

“I will and devise unto my son, Josias Slade, one lot of land called,” &c., “also $200 in cash, by his paying unto my daughter, Elizabeth Slade, $100 five years after my decease, the aforesaid, land and premises to him the said Josias Slade, his heirs, and assigns for ever, provided, nevertheless, that if the said Josias Slade should die without heirs lawfully begotten, then the aforesaid land and premises to be equally divided between his brothers, their heirs and assigns for ever.”

From the frame of the bill, it would appear that the complainants suppose they derive their title to the land in question from Abraham Slade, the testator, as it is alleged that Josias Slade, the devisee, under his will, took no more than a life estate, and that the limitation over to his brothers, upon his dying without issue, is good. This, however, is clearly an erroneous view of the subject, as there can be no doubt, I think, upon the authority of the case Newton vs. Griffith, 1 H. & G., 111, that Josias Slade, the devisee, took an estate in fee in the land devised to him, and that upon his dying intestate, if he did so die, it descended to his heirs-at-law, who (he dying without issue) are his brothers and sisters, and the children of such brothers and sisters as are dead. Porter vs. Askew, 11 G. & J., 347.

The bill alleges that the land so devised by Abraham to Josias Slade will not admit of advantageous partition among those entitled thereto, and that it will be for the interest and advantage of all the parties concerned, and having an interest therein, to sell it, that the proceeds may be divided: thus making a case within the provisions of the twelfth section of the Act of 1785, ch. 72, which authorizes the Court to direct a sale of lands and tenements, in which an infant, idiot, or person non compos mentis has a joint interest, or interest in common, with any person or persons, upon its appearing that it will bo for the interest and advantage of all the parties to make the sale.

But, as has been shown, Josias Slade, the devisee of Abraham, took an estate in fee in the land under his (Abraham’s) will, and upon the death of Josias it descended to his heirs-at-law, who are his brothers and sisters, and the children of such brothers and sisters as are dead, and, consequently, the case is precisely like that of Chaney and Wife vs. Tipton, 11 G. & J., 253, in which it was held that the proceeding must conform to the Act regulating descents, in order that the rights of election and preference secured to certain of the heirs by the statutes may be enjoyed.

It does not follow, however, that because the bill is defective, in not making the averments required by the statute, and in the omission to ask for a commission, that it is to be dismissed because these defects may be cured by amendment, as was permitted in the case of Chaney vs. Tipton.

[The Chancellor then passed a decree ruling the demurrer good, but retaining the bill, with leave to the complainants to tnake such amendments as may be necessary to bring their case within the provisions of the Act to direct descents, and such other amendments as they may be advised.]

Wm. M. Addison, for Complainants. Z. Collins Lee, for Defendants.