Adams v. Morrow

Stewart, J., delivered the opinion of the Court. The appeal in this case is from the decree of the Circuit Court of Baltimore City, of the 18th January, and the order of the 12th February, 18t5, confirming the allotment under the third clause, in the will of John Morrow, made •by the commissioners appointed by the Court for that purpose. The dispute grows out of the language of the second item in the third clause of the will, devising certain property to his son John, the appellee, in these words, “also, the lot of ground on York Street, about sixty-two feet front, with a depth of about sixty feet, heretofore used by me as a lumber yard, and for storage, together with the old budding stanching thereon, and all lumber and material now stored there.” Parol testimony was introduced on both sides without exception, and it is agreed, may be considered in the determination of the cause. ⁴³⁹ To what extent, otherwise, it was admissible, it is of course unnecessary under the agreement to decide, but it can make but little difference in giving a proper construction to the terms used in the will, which must mainly be the guide in the ascertainment of the meaning of the testator, which is the great purpose to bo accomplished. It appears that a part of the property belonging to the testator, fronting on York Street forty-eight feet, and running through to Hill Street, some hundred and fifty-three feet, was conveyed to him by Howard and wife, by deed of 18th December, 1851.

The other part being leasehold, fronting on York Street twenty-one feet six inches, with a depth of seventy-eight feet, was purchased by the testator from Brannan, by assignment, bearing date 1st of July, 1863, subject to an annual rent of '16TV2o dollars. The first lot was used by the testator as his lumber yard, entirely through to Hill Street, until that part thereof fronting on Hill Street, with a depth of ninety feet, was leased to the Mayor and City Council of Baltimore, for a public school, leaving a front of forty-eight feet on York Street, with a depth of sixty-three feet. After the testator acquired the leasehold lot with an old building thereon, that part of it not covered by the building, was also used in connection with the other, as a lumber yard. The testator erected two brick dwellings on the lot he first purchased, on York Street, fronting together, some twenty-three or twenty-four feet on that street ; and the residue of this lot, together with the leasehold lot, unoccupied by the house, he used as a lumber yard at the time he made his will.

The entire frontage of both lots on York Street, including thereon the old house and the two new ones, was sixty-nine feet six inches. ⁴⁴⁰ The testator describes the property devised as the lot of ground on York Street, about sixty-two feet front, with a depth of about sixty feet. He had under his first, purchase hut forty-eight feet fronting on York Street, and after the lease to the city, with a d,epth of sixty-three feet; under his second purchase, he had twenty-one feet six inches, fronting on York Street, with a depth of seventy-eight feet. If the twenty-four feet with the new brick houses be deducted, there would remain of both lots but forty-five feet six inches, of front on York Street. The entire frontage, so far as that fact can throw any light upon the subject, is much nearer the description furnished by the testator in his will, than its curtailment by the twenty-four feet covered by the brick houses; which would reduce the frontage on York Street to forty-five feet six inches.

As the testator does not pretend to be precisely accurate but describes the lot as fronting on Yorh Street,