De Bearn v. De Bearn

Constable, J., delivered the opinion of the Court. This case has been before this Court once before, being reported in 115 Md. 668 , where questions arising in several appeals against the same appellee were disposed of in one opinion. They were all attachment suits in which the lower Court had passed orders releasing from attachment certain bonds. This Court held that the lower Court had emed in passing such orders for the reason that the bonds were property within the meaning of section 10, Article 9 of Code and were liable to attachment.

The lower Court had overruled motions to quash the attachments, filed by the appellee, but the questions arising on those motions were not before this Court, those being plaintiffs’ appeals and this Court in addition expressly stating the questions involved to be the liability of the bonds to attachment. This is the first time all of the papers originally filed in the case have been before this Court, it being stated in the first record that “the voucher, consisting of certain documents in the French language, together with translation thereof into the English language, is omitted because in no way involved in this appeal.” t It is in no way necessary to recapitulate the suits in which the appellee, in the present case, has been involved in the Courts of this State further than to say they have been numerous and the litigation far drawn out. The particular facts out of which the present case.arose are that the Princess de Beam, a resident of France, died, intestate, in the year 1890, leaving surviving her, as her heirs at law and next of kin, six children, all of whom are the parties to this suit with the exception of one daughter. ⁶³¹ That under the laws of France all of her property descended to her six children in equal shares, subject to the interest of her husband, who, prior to the institution of this suit, had also died. On the 16th of April, 1910, the appellants instituted these attachment proceedings against the appellee, for unliquidated damages, for the breach of an alleged contract entered into in February, 1900.

A translation of the alleged contract is, in full, in the present record, from which it appears that it was signed by Prince de Bearn, Blanche de Bearn, Francois de Beam, Pierre de Beam and Bernard de Bearn, the last of whom were minors, but not signed by the appellant Odón de Beam. It appears to be an agreement for the partition of a part of the lands of their mother, the Princess de Bearn. By the third paragraph thereof appears the alleged contract whereof a breach is charged. It is as follows: “Any of the undersigned who shall be attributed, in the partition, the lot where is situated the piece of land supplying the tile clay, and called the ‘Tuileries,’ shall be bound to grant a long lease of the said parcel, should the tile-kiln be reorganized or rebuilt elsewhere, all this to the profit of the group.

The rent for the said piece of land, to the benefit of the community of the children de Bearn, shall be, according to circumstances and the quality of the lessee or lessees, one hundred francs. After a delay of two years to run from this day the owner of the lot where the tile land is situated shall be able to notify his co-heirs to give their decision as regards the exercise of their right; after three months, if there is no affirmatiye answer, their right shall be forfeited.” The tile land was allotted to the appellee, and March 20th, 1902, more than two years after the alleged contract, he sold the same, for the sum of forty-two thousand francs, without notice to his brothers and sister. ⁶³² There also appeared for the first time before this Court a letter from a certain Mr. Surgit, which being translated, reads as follows: “Nevers, March 20th, 1930. Monsieur Le Compte Odón de Bearn, Place St. Georges, 28 9eme, Paris. I returned from travelling and learn of your favor of the 5th inst., which I hasten to reply to.

On the occasion of your last visit to Nevers I believe indeed that I told you that we had proposed with the Prince de Bearn to establish a mechanical lime-kiln for working up porcelain clays which he owned at this time, belonging to the Chateau Sermoise, and if the affair had been put through we would have been prepared to pay him the sum of about twenty thousand francs a year for the removal of the clay; that is to say more or less according to the removals which we should have made. I think that this affair is completely at an end, and I have no further idea of interesting myself in it personally, nor have any of my friends since the Prince has sold. I think that is all that I can say on the subject at present, and I regret not being able to give you better news. Receive, Count, my sincere salutations.

(Signed) .........................” Based upon the statement in the above letter, that if the appellee had concluded terms with Mr. Surgit he would have been able to secure an annual rental of the tile land for twenty thousand francs, the appellants claim that the rental at that sum represented a total capital of six hundred and .sixtv-six thousand francs and that of this sum each child of the Princess is entitled to one-sixth part thereof, together with interest for eight years, making the total amount claimed by the four appellants one hundred and six thousand three hundred and eighty-eight