Gischell v. Ballman

²⁶¹ Boyd, C. L., delivered the opinion of the Court, This is an appeal from a decree for specific performance, requiring the defendant (appellant) to pay to the plaintiffs (appellees) the purchase money for a tract of land in Anne Arundel County, which he agreed to purchase from them, and directing the plaintiffs to convey said land to the defendant upon his payment of the purchase money, or bringing it into Court. The appellant states in his answer that he is anxious and willing to complete the purchase, and to pay the purchase money, and that he will do so in accordance with his contract, if by a true construction of the devise to Frank Harman Ballman in the will of Henry Ballman the former became and is seized of the entire and absolute fee simple estate in the lands purchased. Henry Ballman, the father of Frank H. Ballman, died on or about the 31st day of October, 1884, seized of a tract of land containing about 50 acres, of which that in controversy in this case is a part. By his last will and testament he devised to his daughter, Laura Caroline Ballman, one-third part of his home tract of land, where he then resided, and to his son Christian Frederick Ballman the north third of the home farm, and made the following provision for his son Frank Harman Ballman, one of the appellees: “Item—I will • and bequeath to my youngest son, Frank Harman, the south third of my home tract, containing sixteen and three-quarters acres of land, more or less, with the old dwelling house and the large barn and sncb buildings as shall fall to bis third of, said tract, with the well of water and pump, but I will and direct that the heirs to the several parts of my home farm shall have equal right to use the well or pump aforesaid, provided they bear equal part of the repairs to said pump and well.

And further that each of said heirs shall have free right of way to and from said farm, or their parts thereof, without let or hin- ■ drance. To the said Frank, his heirs and assigns. And whereas the said Frank is not so well able to provide for and take care of himself, I direct that Henry Fred ²⁶² eriek shall look after his interest, advise and direct Erank as best he can, and in case Erank shall not marry and die before the said Henry, then the said Henry shall have and inherit one-half of Erank’s part of said property; and I also direct that in case Erank shall die as aforesaid, that Henry shall have him decently buried and properly attend to him in all his sickness in consideration of the aforesaid interest.” The answer admits that after the death of the testator, and under the provisions of the will, Prank H. Ballman entered into possession of the part of the tract of land devised to him, claiming to be ¿seized of the entire fee simple estate therein, and that he has ever since remained in possession thereof, always claiming to be so seized of the entire fee simple estate, but the appellant contends that by the true construction of the will he did not become seized of the entire fee simple estate, and at best only became seized of a defeasible estate in fee therein, to be divested upon his marriage or death before the death of his brother Henry, and that although he is married and alive he is not seized of the entire fee simple estate and can not convey such estate to the appellant, as was contracted to be sold him. The appellant makes no objection to the provisions for the use of the well or pump, or the right of way provided for in the will.

It is not easy to find such difficulty about the title as justified an appeal to this Court. The will was evidently not drawn by one skilled in such work, but it is sufficiently clear to show the intention of the testator. After saying that he wills and bequeaths to his son Prank Harman the south third of his home tract, and giving the heirs the right to the use of the well or pump and the right of way, the testator apparently desired to emphasize the