Godwin v. Banks

⁶⁸⁰ Boyd, J., delivered the opinion of the Court. The bill was filed in this case by Anna and Sarah God-win, adult children of Anna W. Godwin, to have a partition of the property allotted to her in the division of the estate of Daniel B. Banks, her father, and to have the will of said Banks construed, so far as it affected the interest of W. Frank Godwin, Jr., who died after the death of his mother, Anna W. Godwin. The infant children of Mrs. Godwin and the other heirs at law and next of kin of Daniel B. Banks, together with a trustee in insolvency of one of them, were made defendants. After the answers were filed and testimony taken, a decree was passed construing the will of Mr. Banks and appointing commissioners to make a partition of the property.

By that decree it was determined that under the will the one-sixth interest of W. Frank Godwin, Jr., passed to the heirs at law and distributees of the testator, and the property was directed to be divided into six equal parts- — -one-sixth to each of the five surviving children of Mrs. Godwin, and the other sixth to said heirs at law and distributees. On appeal to this Court that decree was affirmed — the only questions considered, however, being the construction of the will and whether the trustee in insolvency took the interest of the insolvent in this property. The decree also provided for the partition of W. Frank Godwin’s sixth interest, and after the decision of this Court the commissioners-proceeded with the partition and duly reported their proceedings to the Court. The Godwins excepted to the report, and the exceptions having been overruled, and the final decree ratifying the report, and another directing the sale of the part of the sixth interest allotted to the Godwins, having been passed, appeals were taken by Sarah and Margaret Godwin, adults, and Alice Godwin, infant, by her next friend.

The exceptions urged before us are, (x) because the commissioners allotted to Margaret Godwin a property on Baltimore street, in the city of Baltimore, which it is alleged is old and difficult to rent, and hence the partition in this re ⁶⁸¹ spect was grossly unfair to her, and (2) because “ Subdivision F ” of the report was allotted to the five Godwin children as tenants in common, and “ Subdivision L ” was allotted to four other parties, and no ultimate or final partition in severalty was made of the property mentioned in the subdivisions. 1. The total estate divided, after deducting certain sums for fees, costs, etc., amounted to $77,615.74, including $1,118.17 of cash, which the commissioners divided into six equal parts, valued at $12,933.95. The five shares allotted to the Godwin children are spoken of as Grand Divisions A, B, C, D and E, and the other sixth was divided into five parts, called Subdivisions F, G, H, K and L. Grand Division A was allotted to Margaret Godwin, and consists of this property on Baltimore street, which was valued at $11,500.00 ; a ground-rent valued at $1,043.48 ; four shares of Central R. R. Co. stock at $160.00, and cash $232.47. The testimony of the witnesses, taken on behalf of the exceptants, tends to show that the Baltimore street property spoken of has very greatly depreciated in value during the past sixteen years, and is still depreciating; that it is difficult to rent to advantage, and is sometimes without tenants.

The three commissioners, who made the partition, were examined and their testimony not only shows familiarity with the values of real estate in Baltimore, but that they exercised great care in the division of the property. Indeed the valuations placed by them on the respective properties do not seem to be seriously questioned. This particular property, now being considered, is assessed for taxation at $14,000, and at the time the partition was made was yielding about ten per cent., gross income, on the valuation placed on it by the commissioners. Judging from the evidence in the record it is by no means certain that it cannot now be sold for more than it was valued at.

The prayer of the bill was that partition be made of the whole property into six equal parts, one of which to be allotted to each of the Godwins, and the remaining sixth to ⁶⁸² be set apart as the share of W. Frank Godwin, Jr. It then asks for a construction of the will of Mr. Banks, and prays that if the executory devise spoken of be held valid, the one-sixth so set apart be sold and the net proceeds divided among the several parties entitled thereto. The adult defendants, by their answer, made no objection to the partition into six parts, but several of them alleged that it was impossible to tell whether the sixth part to be allotted as the Frank Godwin share, would be susceptible of partition until it was set apart, and therefore denied that it was not susceptible of partition. The infant defendants, through their respective guardians ad Litem, filed the usual formal answers, excepting that the Godwins answered more fully as to the construction of the will. The commissioners, therefore, in this respect, not only acted in accordance with the.decree and commission, directing them' to divide the property into six equal parts, but in accordance with the prayer of the bill, and as consented to by all the adult defendants.

It was, of course, necessary to allot the Baltimore street property to one of the six shares — which one was necessarily left to the discretion of the commissioners. In allotting the property -to Margaret Godwin there is nothing from which we can assume or infer that the commissioners did not act fairly — indeed, it is not pretended that there was any evidence of prejudice, partiality or intentional unfairness of any kind by the commissioners in any of their allotments. But it is contended that they set apart this Baltimore street property to one of the Godwins instead of to the Frank Godwin share, because of the alleged error in the interlocutory 'decree directing that it should be divided into five parts, which would have been impossible if that property had been included in that sixth. It is true that the commissioners may have been influenced to some extent by that direction in the interlocutory decree, but of that'we cannot be certain, for they may still have thought it best to assign it to one of the five Godwins.

If the case was remanded to the commissioners for further action the ⁶⁸³ loss to the exceptants would probably be much greater on account of the costs than it will be under our decision of the case, even if we felt justified in doing that, of which we will speak later. We have so recently considered the duties of commissioners in making partitions, and the power the Court can properly exercise over their returns, that we will only refer to that case, Claude v. Handy, 83 Md. 235 , where our views are given. Although Margaret Godwin was under age when the bill was filed, she is of age now, and probably was when the commissioners acted, as when she and others filed the exceptions to the report they stated she was an adult. There is nothing in the evidence or in the law as announced in the above case that would justify us in interfering with the part of the return allotting the Baltimore street property to Miss Godwin. 2.

According to the direction of the decree and the commission, the commissioners subdivided the Frank Godwin sixth into five parts, one of which was allotted to the five Godwin heirs, one to Margaret W. Dorsey, one to Andrew Banks, one to Harry L. Slingiuff, and the other to Alice Maud Jacobi, Annie Lepley, William Lepley and Matthew Lepley. It is contended that that was erroneous, because there was no ultimate or final partition in severalty of that sixth interest. It is undoubtedly true, as was said in Dugan et al. v. Mayor, etc., of Baltimore, 70 Md. 6 , “ that the object of partition is a division of the property between the several co-tenants, so as to put an end to the co-tenancy, and to vest in each person a sole estate in a specific part or allotment of the property.” But there is no reason why those who desire to continue the relation of co-tenancy between one another should not be permitted to do so, and the decided weight of authority is to the effect that they can. Freeman on Co-Ten. and Part., section 508.

There can be no doubt, therefore, that the Court was right in refusing to entertain any objection on that ground, by the Godwins, to the allotment to Mrs. Jacobi and others of Subdivision L, and we are only called upon to inquire whether ⁶⁸⁴ the appellants, or any of them, can urge that objection to the allotment to them, and have the action of the commissioners set aside. If the law quoted from Dugan v. Mayor, etc., of Baltimore, supra, be technically and literally applied, all of the property which Mrs. Godwin was interested in should be subdivided between the co-tenants, if susceptible of partition, and if not, all of it, and not simply the one-sixth, should be sold and the proceeds divided. The latter course is probably the only way by which such subdivision could have been made. That would have been most disastrous to these appellants, as. the costs would probably have amounted to more than the entire one-fifth of the one-sixth now in controversy — in other words, the entire interest of the five Godwin children, in the share of their brother’s sixth, would have been consumed in acquiring their own five-sixths in sevéralty.

Yet if we must strictly enforce the principle of law invoked by them, the appellees might have demanded that that course be pursued. But neither the plaintiffs nor the defendants asked for the enforcement of that rule as to the whole property, but were apparently content to have one-sixth of the whole set apart to each of the Godwin heirs, and the remaining sixth to be disposed of separately. It is true that the plaintiffs asked that the latter be sold, but, as we have seen, some of the adult defendants, in their answers to the bill, denied that it was not susceptible of partition, and thus in effect objected to a sale of the whole one-sixth. The testimony taken before the interlocutory decree was passed did show that the property originally allotted to Mrs. Godwin could not be divided in kind,