Harris v. Dodge

Alvey, C. J., delivered the opinion of the Court. This action is brought by Mary E. Dodge, and Allen Dodge, her husband, against the administrators of Martha L. Berry, deceased, upon a bond or covenant executed under hand and seal by Martha L. Berry in her life ¹⁸⁸ time, and during the life-time of her husband, Horatio E. Berry, since deceased. The declaration is upon the bond, and the pleas are, 1st. That Martha L. Berry, in her life-time, was never indebted as alleged; and, 2nd.

That the said Martha L. Berry, in her life-time, never agreed as alleged. All errors of pleading were waived. The facts of the case are undisputed; but as they are somewhat peculiar, it is necessary to state them, in order to a full understanding of the questions intended to be raised for decision. It appears that Mrs. Dodge, the principal plaintiff, is a daughter of the late Philip T. Berry, who died in January, 1819, and is a niece of the late Horatio E. Berry, who died in May, 1883.

Philip T. Berry left a will, which was duly admitted to probate, and he also left a family of children, consisting of seven, including Mrs. Dodge. His estate was not large, though sufficient to pay debts. By his will, (of which an extract only is contained in the record,) he devised to his daughter, Mrs. Dodge, part of lot No. 204, in Georgetown, D. C., 30 feet front on West street, 120 feet deep, with brick dwelling thereon, No. 93, with all its alley privileges, &c.; this house and lot to be used as a residence for Irel- and her husband, or to be rented; and all the net revenue therefrom, after paying taxes, insurance and repairs, for her use and control, and not subject to any debt or debts of her husband, now existing, or hereafter incurred ; and if she dies without issue, then the house,- lot and appurtenances to revert back to my estate, and the proceeds to be divided between my children herein named, share and share alike; otherwise to go to her heirs.” At the time of Philip T. Berry's death, his brother, Horatio E. Berry, held a mortgage on the lot or parcel of ground devised to Mrs. Dodge, and upon which mortgage there was a balance due, at that time, ¹⁸⁹ of more than a thousand dollars. In this state of affairs it appears that, in July, 1882, Horatio E. Berry and Martha L., his wife, who had no children of their own, or descendants of children, by joint deed conveyed a large amount of property to G-.

W. Grafflin, by whom it was immediately reconveyed to Horatio E. Berry and his wife, as joint tenants. The primary object of this transaction appears to have been to provide for Mrs. Berry, in the event of her surviving her husband. But as Horatio E. Berry and his wife were childless, and the husband wished to make some provision for his nieces, children of his brothers, he required of his wife, Martha L. Berry, simultaneously with the execution of the deeds to and from Grafflin, and in consideration thereof, the execution of the bond or covenant sued on, in favor of his nieces, for the payment of the amounts therein specified, in the event that his wife should survive him ; — the payments to be made within twelve months after his death. The bond or covenant, so far as it is material to this case, is as follows: “Know all men by these presents, that I have promised and agreed, and do hereby promise and agree, to pay out of the property conveyed this 4th day of July, A. D. 1882, by George W. Grafflin and wife to me and my husband, as joint tenants, (in case I am the survivor,) the sums of money to the respective parties hereinafter named, that is to say: “To Mrs. Mary E. Dodge, wife of Allen Dodge, and daughter of Philip T. Berry, the sum of $2000, and the balance due on the mortgage, payable by the estate of Philip T. Berry to my husband' and secured by the property on the south side of P. street, in the City of Georgetown, D. C. To Miss Martha V. Berry, and Miss Alice L. Berry, each the sum of $5000.

To Miss Margaret A. Berry and Miss Marian Berry, each the sum of $3000; the four last named being daughters of Philip T. Berry. ” And to three other young ladies, kindred of Horatio E. ¹⁹⁰ Rerry, Mrs. Berry obligated herself to pay certain sums ; the whole aggregate amount of the bond, including the balance due on the mortgage, being a little more than $29,000. The balance due on the mortgage, at the date of the bond, was $1307.84. This bond or instrument of writing was executed under hand and seal of Mrs. Martha L. Berry alone, though at the time a feme covert. It appears that the bond, upon its execution, was entrusted to George W. Grafflin, with instruction to deliver it to the obligees or beneficiaries therein.

But for some reason, not disclosed, Grafflin failed to carry out the instruction, and the existence of the bond was not made known to any of the obligees or beneficiaries until after the death of Mrs. Berry, and was not delivered by Grafflin until February, 1888, and then upon demand of counsel. But before this, that is to say, in February, 1884, upon the suggestion and request of Mr. Matthews, one of the executors of Philip T. Berry, and the counsel of Mrs. Dodge and her sisters, Mrs. Martha L. Berry executed and delivered to. Mr. Matthews, for the heirs of Philip T. Berry, a full release of the mortgage of the house and lot in Georgetown, devised to Mrs. Dodge by her father.