Caldwell v. Brown

Robinson, J., delivered the opinion of the Court. John T. Johns died seized of a large and valuable real estate, leaving behind him six papers; purporting to be testamentary dispositions of his property. To each of these alleged wills, caveats were filed by Sarah M. Hodges and Anna Caldwell his heirs-at-law. After a protracted and costly litigation, the caveats to five of these alleged wills were sustained, and the wills set aside.

This left ²⁹⁵ but one will, the will of August, 1866, for further litigation. All the parties being anxious to avoid further litigation, and the expense, delay and uncertainty incident thereto, agreed to compromise their several claims and pretensions, by the terms of which, the claimants under the will agreed; in consideration of the sum of §16,000, to be paid to them, to relinquish all interest in the estate of the said Johns. A hill was then filed in the Circuit Court for Baltimore County, inequity, alleging that it was to the interest of all parties in anywise interested in said estate, that the compromise thus agreed upon should he carried out, and praying: 1st. That the compromise agreement may he ratified and approved, and 2dly.

That Edwin Fitzgerald, trustee, to whom Mrs, Hodges had conveyed all her interest in said estate upon certain trusts, he authorized to unite with Mrs. Caldwell in making a sale or mortgage of so much of the real estate of the said Johns as might he necessary to raise the sum of $16,000, which was to be paid under the compromise. Testimony was taken to prove that it was to the interest and advantage of all the parties, that the compromise should he carried out, and the Court upon full consideration of said testimony and hy the consent of all the adult parties to the suit, and the guardians of the infants, passed a decree, ratifying said compromise and appointing appellees to sell or mortgage property sufficient to raise the sum of $16,000 required to he paid under it. In pursuance of this decree, the appellees as trustees, agreed to sell one of the farms to the appellant, Mrs. Caldwell, for the sum of $30,000, but objection was afterwards made to the title to he conveyed hy them, founded entirely upon the deed of trust which was executed by Mrs. Hodges, pending the litigation. This deed after reciting the objects and purposes for which it was made, conveyed to Eitzgerald the entire interest of Mrs. Hodges in the estate of ²⁹⁶ the said Johns upon the following trusts: To sell so much of said property, as may be necessary to repay him all sums of money advanced, or to be advanced by him for counsel fees and expenses connected with said litigation, and all sums advanced for the support of Mrs. Hodges- and her two unmarried daughters, and 2ndly.

As to the residue to apply the' net income to the support of Mrs. Hodges and her two unmarried daughters, and Brdly. From and after her death, as to all the said residue, of said property in trust, to belong to and be equally divided per stirpes among all her children and descendants of her children then deceased. By the same deed, Fitzgerald was appointed the attorney of the settlor with full power and authority to sue and recover by all lawful ways and, means the said property, and generally on behalf of the said Sarah and her share of said estate to conduct and manage said litigation to a final conclusion. It thus appears, that the residue of the property in the-hands of the trustee, was after the death of Mrs. Hodges,, to be divided per