Busey v. McCurley

Alvey, C. J., delivered the opinion of the Court, James McCurley, a widower with several children, and Susannah S. Stauter, a widow with one child, were married in the spring of the year 1867; and in contemplation of the marriage they entered into a marriage settlement, ⁴⁴³ dated the 28th of March, 1861. By this settlement, all the property belonging to Mrs. Stauter was secured to her separate use and control, and exclusive of all marital rights of her intended husband; and in consideration of the marriage, and of the full and complete surrender and relinquishment of all right and claim to dower in the real estate, and of distributive share of the personal estate, of the intended husband, the parties entered into the following stipulation, the one with the other: “ That the said Susannah S. Stauter shall, if she survive the said James McCurley, receive at his death, from said McCurley’s estate, one dwelling-house, to be vested in her absolutely, in lieu of dower, * * *, and shall resign, and she doth now, by these presents, resign and acquit, all right, title or claim to dower, or distributive share, in the estate of said James McCurley, to which, as his widow, she would, without this, be otherwise by law entitled.” After the marriage and until within a period of less than two years prior to the death of the husband, which occurred in March, 1881, the parties lived happily together as man and wife ; but unfortunate dissensions and alienation of feeling occurred, which resulted in a separation of the parties; and this was the state of things at the time of the death of Mr. McCurley. He left a considerable estate, amounting to about §100,000, composed principally of fee simple and leasehold property in the city of Baltimore. He disposed of his entire estate by will, which he made during the period of alienation from his wife.

By his will he recognized his obligation under the covenant in the marriage settlement, and he attempted to discharge that obligation, by a bequest of a small leasehold dwelling-house and premises, on North Strieker street, to his wife. But this bequest the widow has renounced, as being in fraud of the covenant in the marriage settlement. And the hill in this case is for specific performance of the covenant, and the complainant charges that this bequest ⁴⁴⁴ to her was simply illusory, and was made with a studied design of depriving her of what was really intended originally she should have, and of putting her off with a provision wholly inadequate and inappropriate to her needs, and in fraud and disregard of her just rights under the deed of settlement. She charges that the house and premises bequeathed to her by the will, are of small value, in an ohjectionable location, and are subject to a considerable ground-rent; whereas the house really built for her, on West Baltimore street, and which was designed to come to her, in the event of her surviving her husband, in fulfilment of the requirement of the covenant, is of far greater value, less ohjectionable in location, and in every respect better suited to her condition and comfort, than the house on Strieker street; but which house thus designed for her, on West Baltimore street, the husband, shortly before his death, conveyed to his daughter, Mrs. Eeed.

If the case stated in the bill be clearly made out by the proof, there certainly ought to be a remedy for the grievance suffered by the widow. The terms .of the covenant are exceedingly indefinite, and difficult to construe. It is plain enough that the complainant, in the event of surviving her husband, was entitled to receive a dwelling-house from his estate. But what sort of a dwelling-house, — of what size, style or value, or where located, or whether of fee simple or leasehold,-or by whom to be selected, or whether it was to he purchased or built from the assets of the estate, or be confined to a selection from the dwelling-houses that the husband might leave as part of his estate, — are questions in regard to which the covenant is silent.

The most that can be done, in regard to these matters, is to make inferences from the surrounding circumstances of the case, as to the real intention of the parties. It is very clear, upon the terms of the covenant, that the complainant did not become entitled to the settlement ⁴⁴⁵ of any dwelling-house before the death of her husband, hut only in the event that she should survive him. She acquired, therefore, no right or title to any particular dwelling-house before the death of her husband; and there is nothing in the terms of the' covenant to justify the conclusion, either that the husband had the right to conclude the wife by his will, or that she had the right of selection after his death. And though the husband may have intended, or in fact built, a particular house, with a view to the fulfilment of the covenant with his wife, that did not bind him to set apart that particular house, and none other, for her use and benefit, under the covenant.

Until his death, the wife had no right to claim a dwelling-house, and then only such dwelling-house as would reasonably answer the requirement of the covenant. The whole question, therefore, comes to this: What would be a reasonable compliance with the covenant, according to the events and circumstances of the case ? The proof shows that the husband and his iainily occupied a respectable position in society, though plain and unostentatious in their mode and style of living. It cannot he supposed that the husband, at the time of making the contract, intended his wile, in the event of her surviving him, to live in a mode and style less comfortable, or in appearance less respectable, than that in which he and his family had lived up to the time of his death.

In conformity to this supposition, it is made clear upon the proof, that the house on West Baltimore street, in which he and his wife had lived for several years, was really designed for his wife in the event of her surviving him. The proof in the case, of his acts and repeated declarations upon the subject, make this clear beyond doubt. And hut for the unfortunate estrangement that occurred, there can he but little reason to doubt that he would have designated that particular dwelling-house for his wife, instead of the one on Strieker street. But, as we have said, ⁴⁴⁶ he was not hound to set apart any particular dwelling-house, in anticipation of the event upon the occurrence of which alone the wife would become entitled.

That a Court of equity has jurisdiction, upon application for specific performance, to decree the assignment of a particular house, or the erection or purchase of a house, to gratify the requirement of the