Franke v. Auerbach

Irving, J., delivered the opinion of the Court. This appeal is from a pro forma decree of the Circuit Court of Baltimore City, submitted to that Court upon •a case stated under the equity rules 47 and 48, adopted and promulgated by the Court of Appeals. The appellant, George Franke, bought of Solomon Auerbach, appellee, a house and lot in Baltimore City, being lot No. 112 South Eutaw street, in Baltimore, for ten thousand dollars, and paid one hundred dollars cash, with the explicit understanding that unless a good and clear title could be given there was to be no sale. This proceeding was taken to test the validity of Auerbach’s title.

The only question, which the case stated submits, is whether a certain Catharine Slater, widow of one George Slater, under the will of her husband, George Slater, had the power to execute a deed for the property here involved to her daughter, Helen Slater, by Avay of advancement. We have, therefore, nothing to do Avith Auerbach’s title except as the same may depend upon the right of Mrs. Catharine Slater, under her husband’s will, to make a deed of the property by way of advancement to her daughter, Helen, from whom we infer appellee’s title comes. The clause of George Slater’s will giving rise to the doubt which the parties seem to entertain is as follows: “7 Item: I give, devise and bequeath all the rest and ⁵⁸² residue of my estate and property, of whatsoever consisting, and wheresoever situate, unto my wife, Catharine Slater, for the term of her natural life, with power to dispose of the same by will to and amongst our children and their descendants in loco parentis, if any of them die in her life-time, and with power to discriminate between them, or exclude any one or more of them; and also with power in her discretion to advance any of them; hut if my wife depart this life without having made such disposition of my estate, then after her death it is my will that my estate be divided equally amongst my children then living and their children in loco parentis. ’ ’ In October, 1886, Catharine Slater, widow and life tenant, possessing the power given hy this will, executed a deed for the property herein involved to Helen Slater, her daughter hy George Slater, hy way of advancement, having previously advanced the other six children to the extent of five thousand dollars each, “in cash money,” out of the estate. The contention is, that Mrs. Slater did not have the right to execute that deed, notwithstanding it was done hy way of advancing Helen as the other children had been advanced in money.

We see no solid ground for this contention. The testator gives his wife a life estate in all his property, and then gives her the power of appointing by will, who, of the children of their union, shall take, and in what proportions; for he gives the power to discriminate between them and to exclude any of them from participation in the estate. He also gives the wife the power, in her