Johnson v. Hoover

Irving, J., delivered the opinion of the Court. This case was in this Court before ( 72 Md., 9 ,) and, after remand upon the decree reversing the decision of the Court below, the case proceeded to decree for partition. After the remand, and before decree, the Murguiondo heirs sold out their interest, and the appellant, Jessie Johnson, wife of Greenleaf Johnson, and Joseph Friedenwald respectively became purchasers, and, upon application to the Court, were made parties defendant. The bill charged that the Druid Hill property was sus ⁴⁸⁸ ceptible of easy partition.

All the defendants agreed in their answers that the allegations of the bill were true; and decree for partition was passed appointing commissioners to make the division. This decree was satisfactory to all parties, who respectively assented thereto in writing. The commission issued to five persons agreed upon by the parties, including Simon J'. Martinet, an experienced city surveyor.

The commissioners took the usual oath, and proceeded to the discharge of their duty. Subsequently they returned to the Court a report that “they did walkover the land, and after consultation and deliberation their judgment is that said land cannot be divided without loss or injury to all the parties, and the reason on which the same is founded is, that its topography makes it impossible. It has little knolls all over it. It is very high and abrupt on the west side and some fifty feet lower on the east side, which makes it a very irregular lot, and impossible to divide without loss or injury to the parties.

Cutting the lot up would in our judgment ruin it. The real value of said land in current money is fifteen thousand dollars. ” No objections were made to the ratification of this report and the same was finally confirmed. A lew days after the confirmation of this report, Jessie C. Johnson, wife of G-reenleaf Johnson, the purchaser of the undivided interest of Prudencio H. de Murguiondo, the oldest child of Julia A. de Murguiondo, filed a paper electing in writing to take the property at the valuation of the commissioners, and to pay the other heirs their proportionate shares of the valuation. This application,to elect was resisted by the plaintiff, Daniel Hoover, and Joseph Eriedemvald, a defendant, on the ground that the right of election did not exist.

The Court sustained the objection, dismissed the petition to elect, and decreed a sale of the property. Erom this decree Jessie Johnson and her husband appealed. The first question for determination is, was the Court right ⁴⁸⁹ in overruling the application to elect? Of this there can he no doubt.

The right of election is a statutory right, belonging only to the eldest heir of an intestate’s estate, as prescribed by the statute, and if he refused, to the next eldest, and so on down to the youngest being of age. It is confined by statute to cases of inheritance. Article 46 of the Code provides only for proceedings at law for the valuation and division of an intestate’s estate. The proceeding in this case is in equity, under section 116 of Article 16 of the Code of Public General Laws.

The estate, which is the subject of the bill, and is sought to be divided, is an estate derived under the will of Mrs. Juliet Moale, who gave her daughter a life estate therein, and her grandchildren the remainder in fee. The appellant’s solicitor has contended in argument that this proceeding was taken under Article 46 of the Code, and that therefore, the right of election should be accorded to the ■oldest heir, or his or her grantee. In this view he is mistaken, for the reason we have already assigned — that Article 46 provides- only for the division of intestates’ estates and not for such as come by will or other conveyance. Sometimes the proceedings in chancery have been made to follow -the proceedings at law as far as they could be made applicable.

But the commission in •chancery does not direct the valuation of"fhe estate when a partition of land not inherited is asked for and is decreed. In this case partition was decreed, and the commission issued to five discreet persons to make it. That commission was in the ordinary chancery form to secure partition. It did not direct the commissioners to value the property, and in doing so the commissioners transcended their powers.

The fact that the commission did not so command, shows that it was not intended to be a proceeding under Article 46 of the Code. This is all that is necessary for us to say m vindication of the Court’s decision that the appellant has no right of election. ⁴⁹⁰ The counsel for the plaintiffs having filed a petition asking for an allowance of afee of two hundred and fifty dollars for services in this case from its beginning, and the Court having passed the following order thereon, viz., “On consideration of the foregoing petition it is this, twenty-fifth day of July,-, by the Circuit Court of Baltimore City, ordered that a fee of two hundred and fifty dollars is hereby directed to be allowed to the above-named petitioners in the auditor’s statement of account, subject to the usual exceptions,” the appellants contend that this order was in error, and this forms the second ground upon which they ask