Lansdale v. Linthicum

Thomas, J., delivered the opinion of the Court. In July, 1909, Margaret A. Eppley, of Baltimore City, Maryland, died seised and possessed of four parcels of land, and improvements thereon, known as Eos. 2416 and 2418 Maryland Avenue and Eos. 108 and 117 West 24th Street,. in Baltimore City. Mrs. Eppley was survived by her husband, Julius A. Eppley, a son, Everett S. Eppley, a daughter, Eliza R. Lansdale, wife of Herbert P. Lansdale, and a daughter, Erances Adele Seibert, who was divorced from her husband, Wilson R. Seibert, in July, 1919. She also left a last will and testament by which she disposed of her property as follows: “After the payment of my just debts, if any, and funeral expenses, and the cost of settling up my estate, I give, devise and bequeath, all the rest, residue and remainder of my estate and property of every kind wheresoever situate, unto my said husband, Julius A. Eppley, for the full term of his natural life only, expecting him to pay the taxes and other charges thereon and keep up the insurance.

Upon the death of my said husband, I give, devise and bequeath all said residue of ¹⁵⁷ my estate and property absolutely, evenly and equally unto such of my three children, Frances Adele Seibert, wife of Wilson R. Seibert; Eliza R. Lansdale, wife of Herbert P. Lansdale, and Everett S. Eppley, as shall be then living, and the surviving issue of any of them who shall have previously departed this life; the issue of a deceased child to take, by representation, only the portion which would have gone to the parent had he or she survived my said husband.” Everett S. Eppley, the s-011 of the testatrix, died in January, 1919, leaving as his only descendant a daughter, Margaret (xoldsborough Eppley, who was born in 1904, and who survived the life tenant and resided with her aunt, Mrs. Lansdale, in Rochester1, New York. Julius A. Eppley, the husband, died in July, 1920, and in August, 1920, Mrs. Lansdale and'her husband and the infant daughter of Everett S. Eppley, by her next friend, filed a bill in the Circuit Court of Baltimore City against the other daughter of the testatrix for a sate of the property on the ground that it was not- susceptible of partition, and a division of the proceeds. The two Maryland Avenue lots were sold by the trustee appointed by the court to the Hon. J. Charles Linthicum, who afterwards filed exceptions to the sale because, as alleged, all parties in interest had not been made parties to the proceedings and the trustee could not therefore convey a good and merchantable title to the property, and this appeal is from the decree of the court below sustaining the exceptions on the ground that Everett S. Eppley took under the will a vested remainder in the property so devised and sold, which became subject to the lien of judgments recovered against him, and that neither his executor nor judgment creditors had been made parties to the cause.

After providing a life estate for her husband, the testatrix then says in her will: “And upon the death of my said husband, I give, devise and bequeath all said residue of my estate and ¹⁵⁸ property absolutely, evenly and equally unto suck of my tkree ckildren (naming them), as shall be then living, and the surviving issue of any of them who shall have previously departed this life.” The words “then, living” clearly refer to the time of the death of the husband of the testatrix, the life tenant, and as the will describes those who' were to take in remainder as “such”of her children as were living at the death of her husband and the “surviving issue” of any of them who had died, the evident intention of the testatrix was to postpone the vesting of the remainders until the death of her husband. The devise was not to the testatrix’s children, but only to “such of" them as were living at the death of her husband and the “surviving issue” of “any of them who shall have previously departed this- life.” That -the testatrix intended to