Barbour v. Mitchell

Bowie, J., delivered the opinion'of the Court. The question presented by the present appeal'is, whether the appellee, Henry S. Mitchell, a devisee and legatee under the will of Robert D. Sewall, Esq., late of Prince Q-eorge’s County, deceased, should be enjoined from prosecuting as an heir at law of said Sewall, his bill in equity for the partition of certain lauds devised by William P. Brinham to said Sewall, and of which the latter is alleged ¹⁵⁸ to have died intestate, and also from prosecuting as next of kin of said Sewall, a suit at law against the appellants, on the administration bond of Brinham’s executor, for the recovery of a proportion of Brinham’s personal estate; which lands and personal estate were intended to be devised by Sewall to the appellants. It appears from the evidence in the cause that the late Robert D. Sewall, Esq., a gentleman of large estate, and unmarried, was the uncle of the appellee and the appellants, Susan S. Barbour and Ellen 0. Daingerfield, the children of two deceased sisters, who were heirs apparent and next of kin of the deceased, and towards whom he stood “in loco parentis.” It further appears that for many years previous there lived, in the family of the deceased an aged lady, Mrs. Eleanor Brinham, and her son, William P. Brinham, for whom Mr. Sewall entertained great regard, and in acknowledgment of services rendered by them, conferred upon them large benefactions, by deeds of conveyance of real and personal property, subject to the life estate of the grantor.

Mrs. Brinham died in the year 1847, leaving her son, William P. Brinham, surviving. On the 12th of June, 1847, William P. Brinham, by his deed of that date, reciting the former deeds to his mother and himself of the 26th October, 1844, which were not to take effect until after the death of Sewall, and the death of his mother, and his own desire to surrender and re-convey all said real and personal estate to Robert D. Sewall, in fee, in conformity with the provisions of a contract, entered into between them for that purpose, on the 6th of February preceding; and that Sewall had on his part complied with its provisions, in consideration of the same, he, Brinham, released and re-conveyed to Sewall, all the real estate and slaves conveyed previously by Sewall to Mrs. Brinham and her son. ¹⁵⁹ Simultaneously with the execution of the release, viz: 12th June, 1847, Sewall, in consideration of love and affection for Wm. P. Brinham, and divers other causes, conveyed to him absolutely sundry negro slaves. On the 25th of January, 1847, in consideration of the sum of §1100, (which it is proved was paid by Sewall,) Messrs.

George and Charles B. Calvert, conveyed to William P. Brinham, a part of a tract of land called his “Lordship's Kindness,” containing-acres. It was further in proof that the lands conveyed By the Calverts adjoined the lands of Sewall; that Brinham lived on the lands of Sewall, and had no property, except that given or conveyed to him by the latter. Under these circumstances, on the 5th of March, 1852, William P. Brinham “being sick and weak in body,” made his last will and testament, whereby he devised and bequeathed to his friend, Robert 1). Sewall, all his real and personal estate in fee.

Robert D. Sewall, on the 31st December, 1852, “being in perfect health,” made his last will and testament, in which be appears to have designed to make an eqiral distribution of the great body of his estate, real and personal, between his nephew and nieces, share and share alike. In the prosecution of this purpose he devised and bequeathed to Henry S. Mitchell, about 1000 acres of land; an equal share with his nieces, of all his silver plate, and one-third part of his negroes, besides certain lots in Carrollsburg, in the City of Washington. To his nieces, Susan S. and Ellen C. Daingerfield, he devised 2000 acres of laud, to be equally divided between them; and also devised to them, as tenants in common, “ all the property, real, personal or mixed, which I may hereafter acquire by devise or bequest from my friend William P. Brinham, by whose last will and testament, as now executed, I am sole legatee and devisee, to be equally divided between them as tenants in common, share and share alike.” ¹⁶⁰ Robert D. Sewall died in the year 1853, leaving his will unrevoked, and William P. Brinham died in 1857, leaving his will unchanged and in full force. The real and personal estate of Sewall was divided and administered pursuant to the provisions of the will of the testator; the several devisees and legatees being let into possession of their respective portions of the lands devised, (as far as the same were in the actual seizin of,the testatorj) and receiving their several shares of the personalty.

After Mr. Brinham’s death, Henry S. Mitchell claimed as one of the heirs and next of kin of Robert D. Sewall, one-third of the real and personal estate devised and bequeathed to him by Brinham, insisting the same did not pass under the will of Sewall, but that he died intestate as to the same. Mitchell filed his bill of complaint in the Circuit Court for Prince George’s County, as a Court of Equity, against the appellants, claiming a partition of the lands of Brinham, and instituted proceedings at law against his administrator and his sureties, to recover a proportion of the personal estate of the deceased. The appellants filed their cross-bill, praying that Mitchell might be enjoined from further proceedings in equity and at law, and required to convey his supposed interest in the real estate to the apjoellants. The Court below decreed, that the injunction heretofore issued at the instance of the appellants be dissolved, and their bill of complaint dismissed, with costs to the defendant, from which decree this appeal was taken.

The appellee admits in his answer, that Robert D. Sewall did in his last will, undertake to devise to Susan and Ellen Daingerfield, certain property he was expecting to acquire, under and by virtue of the will of William P. Brinham; but denies that the testator Sewall, ever acquired any estate or interest under the will of Brinham, capable of being transmitted by his last will; and insists, ¹⁶¹ that as Brinham survived Sewall, all the latter had, was a hare possibility of succession, which could not be assigned or be made the subject of a will. The appellants’ theory is, that Mitchell having taken the lands and personal property devised and bequeathed to him by Sewall, in the distribution of his estate among his several heirs at law and next of kin, pro rata, is bound to acquiesce in the other devises and dispositions of said will, whether the subject-matter of those devises and bequests, was legally, or not within the testamentary power of the testator. The defences or reasons relied on by the appellee, for exonerating himself from the obligation of election, rest rather upon the legal operation of the will on the subject-matter of the devise, than upon the intention of the testator. The foundation of the doctrine of election, is a principle of natural justice.

Spence, in his work on Equity, says, “the foundation of this doctrine is the intention of the testator, and its characteristic is, that by equitable arrangement, effect is given to a donation of that which is not the property of the donor ; a valid gift in terms absolute being qualified by reference to a distinct clause, which though inoperative as a conveyance, affords authentic evidence of intention. The intention being assumed, the conscience of the donee is affected by the condition (though destitute of legal validity,) not express but implied, annexed to the benefit proposed to him. To accept the benefit, while he declines the burden, is to defraud the design of the donor.” 1 Spence’s Equity, 639; Story’s Com. on Eq. sec., 1077. This very strong language, is corroborated by the American annotators of Leading Cases in Equity, in their notes upon the cases of Noyes vs. Mordaunt and Streatfield vs. Streatfield, 1 Leading Cases in Equity, 333.

We quote from their synopsis, “The principle of election, is recognized and established in this country, almost exactly as in England. It rests upon the equitable ground, that no ¹⁶² man can be permitted to claim inconsistent rights, with regard to the same subject, and that any one who claims an interest under an instrument, is bound to give full effect to that instrument, as far as he can; a person cannot accept and reject the same instrument, or having availed himself of it as to a part, defeat its provisions in any other part, and this applies to deeds, wills and all other instruments whatever.” “Election by implication in Equity depends upon the circumstance, that the same instrument which transfers or conveys certain property of the testator to one legatee or devisee, conveys or transfers certain other property to another legatee or devisee, and that the former beneficiary, availing himself of the instrument in one particular, must not defeat its operation in another.” * * * * “Again, it is said, a case of mere 'equitable election arises, where only the instrument or the operation of it, would be disappointed in part; if the purpose, object, and actual intention of the testator, in regard to making a particular devise or legacy would be violated, without the devisees or legatees carrying out such object and intention, it is a condition.” Ibid. 306, 307. There is much difficulty in the application of these principles to particular cases, and a great diversity of decisions in different States. Where the instrument is void and inoperative because of legal incapacity in the maker, or informality in its execution, no election generally arises by implication, as in the case of a devise made by a feme covert or minor, but even in these cases it is said, the instrument may so clearly express its purpose, by way of condition, as to create a case of election.

The fact that Sewall, had no devisable interest in the property of Brinham, at the time of making the will or at the decease of the former, would not, it would seem upon principle, conflict with the doctrine of election, as ¹⁶³ in the great majority of cases in which that doctrine has been applied, the testator undertook to dispose of property, over which he had no power of testamentary disposition. This Court in the case of McElfresh vs. Schley, 2 Gill, 181 , after a very careful and exhaustive argument, and examination of all preceding cases, applied the rule to the case of a will devising all the real estate of which the testator was possessed, or of lohich he might he possessed at the time of his death. After acquired lands, at the period at which that case was tried and determined, were as absolutely beyond the testamentary power of the testator, as lands which were only potentially, or never might be his: yet the clear intention of the testator in that case, to dispose of the real estate he might acquire, although legally impossible “in presentí,” was held to constrain his other devisees to abide by that devise, or renounce “pro tanto” the devises in their favor. After referring to the leading English cases, showing the doctrine was applicable to the heir at law, who takes by descent (and is therefore favored by law,) as well as to others taking by purchase, this Court based their decision in the strongest terms, upon the foundation of the intention of the testator.

They said, “In the case of an express condition, there never could have been a doubt, because a testator may annex what condition he pleases to his estate. Why should not election occur in the case of an implied condition, if the intention be plain and clear as against the heir? * * * * , “It is only carrying out a plain intent of the testator, and giving to the residuary devisee, that which the testator intended, and forbidding the heir from taking property not designed for him. “From the earliest case on the subject, the rule is that a man shall not take a benefit under a will, and at the same time defeat the provisions of the instrument. “If he claims an interest under an instrument, he must give full effect to it, as far as he is able to do so. He can ¹⁶⁴ not take what is devised to him, and at the same time what is devised to another; although hut for the will it would be his; hence he is driven to his election to say which he will take.” 2 Gill, 200, 201 . The fact, that the will was inoperative to convey after acquired lands, was held to be no bar to the application of the doctrine of election, the will being executed so as to pass real estate, and therefore competent evidence, and the intention of the testator thereby clearly indicated.

The only perceptible difference in this aspect of the subject between the case of McElfresh vs. Schley, and the case before us is, that in the former, at the time the will was executed, no particular real estate was in the mind of the testator, and in the latter, certain specific property which he knew was devised to him, was the subject of his will. Iri the former, the property intended to be devised by the will, had no local habitation or name; in the latter, the property was certain, known, capable of being estimated, and in all probabilty was taken into actual consideration, in providing for his several devisees and legatees, and making a distribution between them, share and share alike. The parties in interest in the former case, were sisters, children of the testator, and if he had been declared to have died intestate, as to the after acquired lands, would have succeeded as heirs at law equally to them, share and share alike. In the latter, the parties in interest, are nephew and nieces, standing relatively in the same degree to the deceased, and entitled to the estate in controversy in equal proportions.

In the former case, the question was