Beggs v. Erb

Adkins, J., delivered the opinion of the court. Magdalena Biinehart died about the year 1840, leaving- a will, one item of which is as follows: “I give and devise unto my grandsons, John Binehart & Peter Masonhimer, and to the survivor of them and the heirs of such survivor my farm called and known by the name of Stevenson’s Place. Also four cows, upon the following trusts, to wit, in trust that they the said John Binehart & Peter Masonhimer & the survivor of them & the heirs of such survivor, do and shall allow my granddaughters, Sarah Sentz & Catherine Ellen Sentz, to have the use of said cows, also to pay over to my said granddaughters the rents and profits of said farm during their joint natural lives, after the death of either of said grandchildren the portion of the one so dying to go to her representatives in fee simple equally share and share alike, and said trustees are to pay over and transfer accordingly.” In a partition proceeding begun in 1851, a decree was passed in September, 1853, whereby it was adjudged that Absalom Foreman and Sarah Foreman (formerly Sarah Sentz), his wife, should hold "in severalty and not jointly or in common with said Catherine Ellen Sentz, part of said “Stevenson’s Place,” containing 113 acres, 2 roods and 20 square perches of land, more or less, and that the said Catherine Ellen Sentz should hold in severalty and not jointly or in common with the said Absalom Foreman and Sarah Foreman, his wife, part of. said “Stevenson’s Place,” containing 145 acres, 1 rood of land, more or less. From the date of said decree, although the legal estate was in John Binehart, ³⁴⁷ trustee, the other trustee having declined to serve, the said Catherine Ellen Sentz took and assumed full and actual possession of said last-named parcel of land, and held and enjoyed possession thereof until the same was sold to one John T. Erh on January 26th, 1867, under a decree of the Circuit Court for Carroll County, passed in cause ISTo<. 761 Equity, in said court instituted in February, 1864, by Franklin IT.

Erh, Estella K. Erb and George C. Erb, infants, by Christian Erh, as next friend, against the said infants, John Rinehart, trustee, Samuel Erb and Catherine Ellen Erb, his wife, the said Catherine Ellen Sentz having previously married the said Samuel Erl^ and the said infants being their only children at the date of filing the bill and at the date of the decree. The bill filed in that case, after reciting the facts above: mentioned., alleges, “that it would be greatly for the benefit and advaie tage of such infants that the said real estate so allotted and partitioned as aforesaid to the said Catherine Ellen Sentz, now the wife of Samuel Erb and the mother of said infants, should be sold and the money arising from the sale thereof secured or invested in some safe and reliable security, under the order and direction of your Honor, and upon such terms and conditions as yonr Honor may prescribe for the benefit of the said Catherine Ellen Erb during her life, and afterwards for the benefit and use of the said infants and others the heirs of the said Catherine Ellen, according to the terms of said will.” The prayer of the bill is “that the said real estate and premises so allotted and partitioned to the said Catherine Ellen, as aforesaid, may he sold, and the money arising from the sale thereof may be secured or invested under tbe order and direction of yonr Honor for the benefit of the said Catherine Ellen during her life, and afterwards for the benefit of the heirs of the said Catherine Ellen, and that your orator as next friend as aforesaid may ³⁴⁸ have such further and other relief in the premises as his case may require or equity allow.” J ohn Rinehart, the trustee1, filed an answer, admitting the allegations, of the bill, renouncing1 his trusteeship and consenting to the passage of the decree as prayed. Catherine Ellen and Samuel "VV. Erb, her husband, filed their joint and several answer, admitting the matters and things charged in the complainants’ bill of complaint and consenting that a decree be passed for a sale of the land mentioned in the bill “provided that the proceeds of the sale thereof are invested in some productive stock or otherwise, and the annual interest thereon apjdied to the separate use of your defendant, Catherine Ellen Erb, and to be paid to her.” It appears by the return of the commission to take testimony that two credible witnesses testified as follows: “5th Interrogatory — "Would it or not be to the interest and advantage of all the parties interested in the land mentioned in this cause to sell the same and invest the proceeds from the sale thereof in some productive stock or otherwise for the use of the said Catherine Ellen Erb during her life, and for the benefit of her children after her death?

If yea, state your reasons for entertaining such opinion. “Answer to the 5th Interrogatory — That it would be to the interest and advantage of all the jiarties mentioned in this cause to sell said land and invest the money arising from said sale in some productive stock, or otherwise, for the use of the said Catherine Ellen Erb during her lifetime, and for the benefit of her children after her death, because the said land is badly managed and depreciates in value. It would cost a great deal of money to put it in repair, and the interest-on the purchase money would be worth more than the products of the farm.” ³⁴⁹ And thereupon the court passed the aforesaid decree for the sale of said land for the purposes aforesaid on April 8th, IS 64, and named the said S'amuel W. Erb, husband of said Catherine Ellen Erb, as the trustee to make said sale. It appears that the trustee duly qualified and sold and conveyed said property to the said John T. Erb, and received tbe purchase money therefor, and that the defendant in the present ease, J. Wesley Beggs, holds and claims title thereto under the said John T. Erb through several mesne conveyances, except as to two or three small parcels sold to others, the farm now in controversy containing about 135 acres. The hill in the case before us Was filed by the children of Catherine Ellen Erb and Samuel W. Erb, born after tbe date of the decree in Ho. 761, and those claiming under them, against the defendants, praying that the property he sold as incapable of division without loss and injury to-the parties interested, the theory of the bill being that the sale under the decree in Ho. 761 carried only the interests of those actually made parties to that suit and did not affect the interests of after born children, because the bill in that case did not contain the allegation that it would he advantageous to the parties concerned to sell said property, that being, according to plaintiffs’ theory, a jurisdictional allegation, the absence of which cannot he remedied by even the fullest proof of the jurisdictional fact.

Proceeding on that theory, plaintiffs set out in their bill the supposed interests of all parties to the bill, plaintiffs and defendants, from which computation the interest of the plaintiffs is made out to he seven-tenths and that of the defendant, J. Wesley Beggs, three-tenths. There was no dispute about the facts in the case, but the defendant strenuously controverted the legal conclusion deduced by the plaintiffs from the admitted facts. Their position was, and is, that plaintiffs had no interest in the property for either of two reasons: 1. 'Sarah Sentz and Catherine Ellen Sentz took under the will of Magdelena Rinehart a fee simple estate under the Rule ³⁵⁰ in. Shelley's Case, which was then in force in Maryland, be cause the devise to the sisters for life, with remainders to their representatives, were both of equitable estates, and the word “representatives” here means “heirs” and the estates consequently coalesce in the first takers. 2.

Or if the above contention be not accepted, the proceedings in Ho. 761 equity were a substantial compliance with the Act of 1862, Chapter 156, now codified as amended in Baghy's Code as Section 228 of Article 16, and the sale under the decree in said proceedings carried the interest of all parties in interest including those not then in esse. The learned judge who sat in the case held that the first position was not well taken, because the estate in remainder was a legal estate, the trustee having no discretionary or substantial duty to perform in relation thereto’. He also’ felt constrained, by reason of the decisions of this Court in several oases cited by him, to reject the second contention of defendants, and signed a decree appointing trustees to sell the property as prayed in the bill. The case is now before us on appeal from the decree.

In passing on the first contention of the defendants' Judge Thomas said: “It is insisted by