Carroll's Lessee v. Llewellin

The following is an opinion by Wtn. Cooke, Esquire, given many years after this case was decided, when it was in agitation to bring a new ejectment: Justinian Gerard of Saint Mary’s County, being seised in fee of a tract of land called St. Clement's Manor, by his last will and testament in writing bearing date the 4th of August, 1682, devised the same to his wife Sarah and her heirs for ever. On the 29th July, 1685, the said Jus- ' tinian and Sarah, by a deed indented and enrolled, purporting to bp made as well for and in consideration of a jointure to the said Sarah, and for her better and more sure maintenance and livelihood in time to come, as also for the natural love and affection which the said Justinian had and did bear to her, and for the settling and establishing of the inheritance of the lands and tenements, thereafter men ¹⁶⁹ tioned, to and in John Llewellin and Robert Foster and their heirs, to the uses, intents and purposes therein specified, did grant, &c. among other things, the said manor to the aforesaid John Llewellin and Robert Foster, and their heirs: To hold the same to them the said John Llewellin and Robert Foster, their heirs and assigns for ever, to the use of the said Justinian and his assigns during his life, and after his death, to the use of the said Sarah- during her life, and after the decease of the said Justinian and Sarah, to the use of the heirs of the body of the said Justinian lawfully begotten, or to be begotten, and for default of such issue, to the use of the said John Llewellin and Robert Foster their heirs and assigns for ever in trust, to make such grants and conveyance of the same, and dispose, distribute and employ the rents, issues and profits thereof to such person and persons, and in such manner and form as the survivor of the said Justinian and Sarah, by his or her will in writing, executed in the presence of three witnesses, or by any other writing subscribed and sealed by him or her in the presence of three witnesses, shall nominate, declare or appoint, and for default of such appointment, the trustees aforesaid to- convey the same to the right heirs of the said Justinian for ever, with power reserved to the said Justinian to make leases, alter, or revoke all or any of the uses aforesaid. In 1687 Justinian died without issue, and without revoking the uses aforesaid, or making any new will; Sarah survived and intermarried with Michael Curtis.

On the 29th Mg.y, 1710, the said Michael and Sarah, by deed indented and enrolled for a valuable consideration, reciting the will aforesaid, and the devise of the premises aforesaid to the said Sarah in fee, conveyed the same to Henry Peregrine Jowles and his heirs, to the use of the said Curtis and wife and their heirs for ever, and executed the same in the presence of three witnesses. On the 30th May, 1710, Jowles reconveyed (by deed-poll not acknowledged) to the said Curtis and wife in fee, of whom Charles Can rail, father of Charles Carroll, Esquire, purchased and con- ¹⁷⁰ turned in the possession thereof, by the actual occupation of part and paying quit rents for the whole, till he was lately ousted of part by John Llewellin of Saint Mary’s County, a descendant (I suppose) of Llewellin, before-mentioned, who, till his said entry, had never been in possession of any part of the said land for upwards of years. From the above state of facts several material questions, or rather objections, may be made to Mr. Carroll's title. 1. If the deed from Gerard and wife to Llewellin and Foster, is not a revocation of the will aforesaid of the said Justinian Gerard. 2.

Whether the consideration expressed in the said deed is sufficient to raise the uses therein mentioned. 3. If it is, whether the power of appointment therein given, (to the said Sarah, who eventually survived Justi nian,) be well pursued agreeable to the intention of the parties. 4. If such appointment of the use be well made, -whether the possession be executed to the use, or whether the legal title still remains in the heirs of the trustees aforesaid. And 5.

Whether the long possession of Mr. Carroll be a sufficient title for him to support an ejectment, if it should appear that he has not a legal right to the said tract of land, called St. Clement's Manor. I am of opinion, as to the first quere, that the said deed from Gerard and wife to Llewellin and Foster, is in construction of law a revocation of the will of the said Justinian Gerard. Every will is ambulatory and of no efficacy till the death of the party; it may be added to, revoked, in the whole or in part; in short it is considered only as an instrument declaratory of the intention of the testator as to the disposition of his estate. Every alteration of the mind if sufficiently notified is therefore a revocation.

A bargain and sale not enrolled will not pass the estate, yet, manifesting an alteration of the intention of the testator, it ¹⁷¹ is a revocation. So for the same reason a deed of feoffment, if no livery of seisin is made, will not pass the estate, yet it is a revocation. So if a man after making his will transfers by any way or means the whole estate, though he takes the same estate back to himself in fee, it is a