Henderson v. Harper

Briscoe, J., delivered the opinion of the Court. The object of the proceedings, in this case, is to charge the estate of John Henderson, deceased, with the payment of the sum of three thousand three hundred and thirty-three dollars, alleged to be the property of his surviving children, and to which it is alleged they became entitled upon his death, as part of the proceeds of their molher’s estate. The facts as disclosed by the bill are these: Mrs. Emaline C. Henderson, of Baltimore City, the mother of the plaintiffs, died on or about the 18th of June, 1895, intestate, but seized and possessed in fee simple of a lot of ground, improved by a three-story dwelling house, known and numbered as 1610 McCulloh St., Baltimore City. She left surviving her, four children and her husband, John Henderson, and upon her death the property vested, under the existing law. the wife dying prior to the Act of 1898, in these children, as tenants in common subject to the life estate therein of the surviving husband.

The bill charges, that on or about September 30, 1895, the surviving husband, and the children of the mother sold the house and lot whereof she died seized and possessed to one James A. Richardson for the sum of ten thousand dollars, and by deed of the same date, conveyed the lot, in fee simple, to him, that the purchase money was delivered to the husband, who voluntarily divided it, as follows: Two-thirds thereof, to wit, six thousand six hundred and sixtv-six dollars and sixty-‘-ix cents he paid to the children and retained for his own use, ⁴³¹ the remaining one-third thereof, with a declaration, at the time, that “he would retain this amount during his lifetime and apply the income thereof to his own use, and upon his death they, meaning the children, would be entitled to the principal.” The bill then avers that it was the belief of the husband, at the time of the sale of the property and the payment of the purchase money, that he was entitled to the use of one-third of the purchase money only for his lifetime, and that he was not aware that he was entitled to the use of the whole fund for life. The bill further avers, that John Henderson, died on or about the 10th of January, 1914, possessed of the $3,333 1/3, but which was intermingled with his other property, during his life, and it passed, at his death, to the trustee and executor of John Henderson, for the uses and purposes set out in his will; that while his personal estate is not sufficient in the hands of the executor to pay the amount due them, his real estate is sufficient to pay his debts, and they are entitled to have the estate charged, with the payment of the fund to which they are entitled. The prayers for relief, as set out in the bill are as follows: (1) That the estate be charged with said amount; (2) That the trustee may account for the same; (3) That the said sum may be distributed among the parties entitled thereto, and (4) The prayer for general relief. The defendants demurred to the bill and upon hearing, the demurrers were sustained and the plaintiffs declining to amend, the bill of complaint was dismissed, with costs, by the Court below.

The bill in this case, we think, was defective in several respects, and the Court was right in sustaining the demurrer, and upon the refusal of the plaintiff to amend, in dismissing the bill. By General Equity rule No. 4, it is provided that no order or process shall be made or issued upon any bill * * *, and ⁴³² other