Goldsborough v. Martin

Fowler, J., delivered the opinion of the Court. On the first of December, 1866, an agreement was made between William, Mary C., Eliza, John, George R., and Sallie E. Goldsborough, who were then the only heirs of the late Robert H. Goldsborough of Talbot County, Maryland. All the parties just mentioned were children of Robert H., except Sallie E., who is his niece. The only part of this agreement with which we are now concerned is contained in the last paragraph. “ Lastly.-—-It is hereby stipulated, agreed and understood, and the parties hereto expressly stipulate and agree that the old homestead and family mansion, “ Myrtle Grove,” shall be kept up and maintained as a joint and common home for all the said parties hereto, at all times in the future as in the past, and all parties hereto are entitled at all times to the privileges and enjoyments of said home at “Myrtle Grove and furthermore, it is expressly stipulated, agreed and understood by all the parties hereto that none of said parties shall have any exclusive or separate right of property in ⁴¹⁵ “ Myrtle Grove,” except as a homestead, during the natural life of any one of the said parties ; this being understood to mean that no one shall call for a division of the farm called “ Myrtle Grove,” as hereinafter laid down, so 'long as it may be occupied or desired to be occupied as a home by any one of the parties to this agreement; and it is also further stipulated and agreed that said homestead and home aforesaid, at “ Myrtle Grove,” shall embrace and comprise the following lands and premises,” which are described by metes and bounds.

It is further stipulated that “ Myrtle Grove,” the family homestead as thus described, “ shall be and remain the common property, as tenants in common, and not as joint tenants,” of said contracting parties “ and subject to their future ownership and control, after the decease of all and every party hereto, as before recited, and not before.” For a number of years the family homestead was used for the purpose to which it was dedicated by the foregoing agreement. But in the year 1883 another agreement was made which upon its face shows that it was supplemental or in addition to that part of the former agreement which we have quoted. It was signed by all who joined in the first agreement, except Sallie E. Goldsborough (now Mrs. Martin), and provides as follows : “ It is further understood between us, the heirs of the “ Myrtle Grove ” homestead, that it is our desire that each individual share of the old homestead after the death of any of the brothers and sisters, shall become the property of the surviving brothers and sisters, and so on, until the last heir, who as owner of the whole, shall dispose of the old homestead as he or she may desire.” With the exception of the attestation clause this is the whole agreement. It was executed on the third of July, 1883.

The only surviving heirs are George R. Golds-borough, the plaintiff, Mrs. Martin, formerly Sallie E. Goldsborough, and the two children and four grand-children of William Goldsborough. The plaintiff alleges in his bill that he and Mrs. Martin are the only surviving parties to the agreement of 1866, and that neither of them has for a long ⁴¹⁶ time resided at Myrtle Grove; that it cannot be divided without loss or injury to the parties interested, and that a sale thereof ought to be made and the proceeds divided between him and Mrs; Martin, according to their respective rights, he claiming five-sixths under the agreement of July, 1883, and conceding to her one-sixth, under the agreement of 1866—thus ignoring altogether the rights of the other parties defendant—namely, the children and grand-children of his brother William. The defendants have all consented to a sale, but they deny that the plaintiff is entitled to five-sixths of the proceeds of sale, and contend that they must be divided between the parties as though the contract or paper of July 3rd,