Mayor of Baltimore v. Williams

Eccleston, J., delivered the opinion of this court. This is an action for money had and received, instituted by the appellees to recover from the Mayor and City Council of Baltimore the amount of damages assessed in favor of the ²⁵⁴ owner of a lot of ground lying in that city, which damages resulted from the opening of a street. The defendants admit the money to be in their hands, but decline paying it over until it is ascertained who has the right to receive it. The real controversy is between the plaintiffs and Daniel B. Banks.

This lot was formerly owned by Hannah K. Chase, now deceased. On the 2nd of August 1844, whilst she was thus owner of this lot, she executed a deed of all her property to the plaintiffs, and their heirs, executors and administrators, to be held by them in trust, to suffer and permit the said Hannah Kitty Chase and her assigns, for and during the period of her 'natural life, to have, hold, use, occupy, possess and enjoy all and singular the estate, chattels, effects and property, and the rents, issues, income and profits thereof, during that period, to receive and take, and the same to apply to such uses and purposes as she might think proper. “And from and immediately after the decease of the said Hannah Kitty Chase, then in trust for the several and same uses and trusts, and under and subject to the like powers, limitations, restrictions and conditions as are mentioned, expressed and declared of and concerning the estate and property generally, mentioned in and devised by the last will and testament of the said Hannah Kitty Chase to the trustees therein named; and in and by the three several codicils by her made to said will.” Then giving the date of the will and the dates of the three codicils. On the 28th of January 4845, Mrs. Chase executed a deed to Wm. A. Talbott, conveying to him and his heirs, executors and administrators, all her estate and property of every kind; to have and to hold the same to the use of the said Wm.

A. Talbott, his heirs, &c., in trust during the life of Mrs. Chase, to collect and receive the rents, dividends, issues and profits, and to apply'the same, first to the payment of her debts, then to her own use, and as she might direct in writing. And after her death, then in trust as to the whole of said estate conveyed, “for the uses, ends, intents and purposes set out and declared” in her last will and testament, and the ²⁵⁵ several codicils thereto executed by her, and referred to in the deed of trust from her to the plaintiffs. By a deed dated the 14th of September 1847, Mrs. Chase conveyed to Daniel 13. Banks, in fee, the lot of ground upon which the damages in controversy were assessed; which assessment was complete on the 29th of October 1847, and the amount thereof, being $818.66, was on that day in the hands of the defendants.

Mrs. Chase died on the 2d of March 1848. Talbott makes no claim to the sum in dispute; but Banks, through the defendants, resists the right of the plaintiffs to recover, and claims the money under his deed. Before we look to the bill of exceptions, we deem it proper to examine the two principal grounds on which the claim of the plaintiffs has been resisted. The first is, that notwithstanding the deed to the plaintiffs, there still remained in Mrs. Chase a power of revocation which enabled her, at any subsequent time during her life, either by will or by deed, to dispose of all or any portion of the property embraced by the deed of 1844, and the previous will and codicils, and that consequently the deed to Banks was a revocation pro tanto.

The second is, that if no such power of revocation existed, yet the plaintiffs’ deed, being merely voluntary, was void as against Banks, whether he had notice or not, he being a subsequent purchaser for value. In support of the views entertained by the counsel for the appellants, in regard to the first point, reference is made to Sir Edward Clere's case, 6 Coke's Rep., 19; the Earl of Ormond’s case, Hobart's Rep., 348; 1 Dyer’s Rep., 49, b; and 3 Dyer's Rep., 314, a. The principles settled in the first of these cases are, that if a man seized of land in fee, makes a feoffment to the use of such persons and for such estates as he may appoint by his will, by operation of law the use vests in the feoffor, and he has a qualified fee until the use is declared according to the power. A feoffment made to the use of the feoffor’s last will, gives him the use in the mean time.

And if in. such a ²⁵⁶ case, by his will, he limits estates according to the power, the estates will take effect by force of the feoffment, and the use is directed by the will, so that the will is but declaratory. But if the feoffor devises the land as owner thereof, without reference to his authority, it will pass by the will, because he had in him a devisable estate, as well as power to limit the uses, and therefore might do either, at his pleasure. It is not necessary to examine, with any minuteness, the principles involved in the Earl of Ormond's case, because the decision in that case, if indeed it can be called a decision, can have but little if any influence in favor of the appellants. It appears that the case was referred by the King to the two chief justices, Montague and Hobart, and Justice Doddrige.

Montague did not think the instrument under consideration was revocable, the other two judges held that it was. This case being referred to in Bath vs. Montague, Lord Holt said: “ I do. not take that opinion of the two judges, Hobart and Doddrige, there delivered, to be law; and there were other two judges, Montague and Hutton, that were of another opinion, and others were of their mind, and it did not come to a Judicial resolution.” This remark of Lord Holt, especially in reference to the number of judges who differed from Hobart and Doddrige, has been found fault with by the counsel for the present appellants. It is said to be an error in Lord Holt,, or else the reporter has not given his language correctly. In-support of this idea, reference has been made to. the opinion of Baron Powel, in Bath vs. Montague, where he speaks of' the opinion of two judges against one.

But in this he does, not refer so much to the decision of the case - as he does to¡ the reasons assigned by the two judges on one side, and by-Montague on the other. Be this, however, as it may, it is manifest from the concluding paragraph of the report, as given by Hobart himself, Lord Holt’s statement was correct, that Hutton and other judges concerned with Montague in opposition to the views of Hobart and Doddrige. The parties-having bound themselves to abide by the King’s award, the-case.was referred to Hobart, Montague and Doddrige. When- ²⁵⁷ it was ascertained that they differed in opinion, the King consulted Hutton and other judges, who agreed with Montague.

And Mr. Srngden, as well as Lord Holt, states that the point in question was not decided. 1 Sugden on Pow., 273. Mr. Atherly, in his work on Marriage Settlements, at page 183, in 27 Law Lib., speaks of this case in the following manner a “ In Lord Qrmondss case, indeed, it is said to have been held, that a voluntary settlement might be revoked without any express power for the purpose; but this case is clearly overruled.” See 1 Vern., 101, Villers vs. Beaumont, and thecases referred to in the notes to that case. The first case in Dyer is thus briefly stated: “In the eighteenth year of the now king, a man made a feoffment to perform his last wifi, and his wifi was annexed to the charter of feoffment, and livery of seizin thereupon made accordingly, and it was adjudged that he may alter and revoke this will, although it took effect upon the livery,” &e. This decision is not consistent with the principle adopted in Hussey's case, Moore's Rep., 789, and referred to in Bath vs. Montague, at page 99.

There a will was made devising a manor, and subsequently the party made a feoffment of the manor for such persons and for such estates as he had declared by his will, referring to the will by its date. It was held that the will was revoked, but yet it was a sufficient declaration of the uses. This we understand as deciding that the feoffment operated as a revocation of the ambulatory or revocable character of the will, but the reference to it by the feoffment made jt a good declaration of uses. Consequently the dispositions of the estate in the will became operative by virtue of the feoffment, and were dependent upon that for their efficacy.

The revocation spoken of in the report, did not mean such a revocation of the wifi as rendered it a perfect nullity in every respect, for it appears the feoffor was a bastard, and although the feoffment was decided to be a revocation of the will, yet it remained good as a declaration of uses, so that there was no escheat to the crown. Thus it seems that by connecting a will already in existence with a feoffment, by a reference to* ²⁵⁸ the will in the manner stated, it does not impart its changeable character to the feoffment, but, by the connection, becomes as stable as the feoffment itself. According to the report of the second case in Dyer, “a man by his deed indented and sealed,” after reciting that he had suffered a common recovery against himself of certain lands, upon trust and.confidence, “to the intent of performing his will touching the disposition of the said lands,” declared that, “first, he willed that his said feoffees and their heirs should suffer him to have and receive” the annual profits during his life, and then declared other uses to take effect after his decease. The question being whether, during his life, he might alter and change the uses limited in the indenture, the report states; “And it seems to me that he may well alter this will, for will and last will are understood to be all one; and this recovery was to the intent to perform the will, and this indenture is as a will, which is alterable; therefore it is not a limitation of uses upon livery made, according to the nineteenth year of H. 8, [11 a, pi. 5.] And other jusfices agreed to this opinion.” If therefore it was not a deed but a will, there could be no doubt of its revocable character., Mr. Sugden thinks the point was taken for granted, that the instrument, notwithstanding its form, was but a will; as Dyer and other judges held the party might “alter his will, for the deed was quasi a will, which is changeable.”' 1 Sugden on Pow., 274, in 15 Law Lib., 147.

In adverting to this case, Lord Ch. Justice Treby, in Bath vs. Montague, said the instrument was a will, for though in form an indenture, yet when it says “he wills so and so, after he had recited a power to declare by will, this must be taken for a will.” But if it is to be considered a deed, then the decision is in direct conflict with Broad’s case, in Lea., 39, referred to by Lord Holt in Bath vs. Montague, at page 100. There a man levied a fine to the use of such persons and for such estates as he should appoint by his last will. After this he covenants to stand seized of the lands to the use of his second son and his heirs, and then made a will disposing of ²⁵⁹ the estate according to the power.

In a controversy whether the claim under the deed or that under the will should prevail, it was held that the deed, although a covenant to stand seized, should take effect, and that the will, although made according to the power, carne too late to execute it. See also Hatcher vs. Curtis, 2 Freeman’s Rep., 61. In Bath vs. Montague, 3 Chan. Cases, 55, a will was made in 1675 by the Duke of Albemarle, giving parts of his estate upon his dying without issue to several persons, but the bulk of his estate he gave to the Earl of Bath.

In 1681 the duke executed a lease and release, reciting in the latter the will. But although the recital differs from the will in some degree, it is stated to be the design and intention of the deed to dispose of the estate as it was disposed of in the will. And the reason for disinheriting the heir at law is said to he because he was a regicide. Then the deed disposes of portions of the estate to certain persons, but the main part of it is settled upon the Earl of Bath; the deed reserving to the Duke of Albemarle the power of revocation at any time, upon the tender of a shilling, by writing under hand and seal in the presence of six witnesses, three of whom were to be peers of the realm, and then to limit new uses.

In 1687 the duke executed a will making quite a different disposition of his estate. This will was attested by three witnesses only, not one of them being a peer. Of course it was not a writing in accordance with the power of revocation contained in the deed. But it was contended that the deed of 1681 was revocable as a will, irrespective of the express power contained in it, because it related to a will.

Very elaborate opinions were given by Lord Keeper Somers, Chief Justices Holt and Treby, and Baron Rowell, deciding unanimously that the will could not operate as a revocation. Lord Ormond’s case, and the two cases in Dyer, already mentioned, were cited and commented upon, but were not considered as authorizing the judges to hold that the deed of 1681 was revocable as a will. And notwithstanding these cases, the judges refused to sustain the argument which seems to have been pressed upon them, ²⁶⁰ that the deed depended upon the first will, was ancillary to it, and leaned upon it, and therefore the second will revoked the first and the deed likewise. To maintain that a deed reciting a will, and saying it is made to confirm the will, is revocable in its nature, in equity, as a will is at law, is spoken of by Lord Holt as a notion that he never heard started before.

And he condemns the idea that a deed is revocable because if relates to a will, as being a contradiction to the nature and essence of a deed; for a deed takes effect immediately upon the sealing and delivery, and cannot be altered or revoked by the maker, unless it contains a power of revocation, and then only according to the power. On page 99, after noticing the case in Dyer, 49, Lord Holt says: “But if a man make a a deed of feoffment, and says it shall be to the use of such persons and for such estates as in his will, or as he shall give according to the will, there, though the will doth mention the names and limit the estates, the uses do not arise by the will, but by the deed, for though the will be no part of the deed, yet when the deed doth refer to the will, and the will hath limited the estate, it is as much as if all the limitations had been comprised in the deed.” On the question as to the revocation of the deed, all the judges united in the conclusion of Lord Holt’s opinion; and his reasoning on the subject was also sanctioned and adopted by the Lord Keeper, who said: “But my lord chief justice has so fully and clearly answered that matter, that I shall not need trouble you with saying any more in it. The cases cited about it are in no sort applicable to this case.” But the counsel for the appellants insist, that the case just referred to cannot properly have much, if any, influence in deciding the one under consideration, because, here, the deed simply refers to the will and the codicils, but does not recite or contain within it the dispositions of the estate mentioned in the will and codicils, whilst, there, although the deed was made to confirm the will, it nevertheless contained wdthin itself the actual limitations of the estate, some of which differed from the will to some extent. ²⁶¹ Since the case of Maccubbin vs. Cromwell, 7 G. & J., 157 , we suppose it will not be seriously contended that where a deed conveys land in trust for such uses and trusts as are contained in a will, or other instrument, properly described or referred to, the uses and trusts do not take effect. And if they do, it must, of course, be by virtue of the deed.

And as deeds in their nature are not changeable, where they contain no power of revocation, if the reference is to a will as containing the uses of the trust, the deed lakes away or abolishes the changeable nature of the will, unless the provisions of the deed indicate a different intention on the part of the grantor. This view is certainly correct, if Lord Holt is right, as we think he is, in saying that “when the deed doth refer to the will, and the will hath limited the estate, it is as if all the limitations had been comprised in the deed.” And this being so, we do not think the distinction between the two cases, which has been urged with much ingenuity, can avail the appellants to render the case of Bath vs. Montague of no influence on the present occasion. That decision has been assailed by the appellant’s counsel as void of authority, because the Chancery Cases are said to be very incorrectly reported. It is true that judges, and some of the elementary writers, have so spoken of them, but Chancellor Kent says: “The great case of the Duke of Norfolk, and the case of Bath vs. Montague, at the conclusion of the Cases in Chancery, are distinguished exceptions to this complaint, and those great cases are fully and very interestingly reported.” 1 Kent's Com., 492, marginal page, (7th Ed.) We have been referred to 1 Sugden on Pow., 484, in 15 Law Lib., and 2 Ibid., 14, 15, in 16 Law Lib., in support of the principles contended for by the appellants.

But we do not perceive any thing in these references which can establish the proposition, that either the deed or the will in this case is revocable. On page 484 of the lsi VoL, it is stated, that as a general rule a will is in its nature revocable, and when a pow'er is executed by will an express power of revocation is not necessary to be inserted, but it may be revoked, and the ²⁶² original power re-executed toties quoties. That when a power is executed by deed, a power of revocation and new appointment may be reserved, allhough the instrument creating the power does not in express terms authorize it. And such powers may be reserved toties quoties.

But it will be seen on page 485, that when under a power an appointment is made by deed, it cannot be revoked, unless an express power is reserved in the deed executing the power. On page 14 of the 2d VoL, the writer speaks of the peculiar operation of a will made in execution of a power. In most respects it possesses the charactef of a will, whilst it operates as an execution of the power. Here again is repeated what is said in the first volume in relation to the irrevocable character of a deed executing a power where no power of revocation is reserved in the deed.

Then it is said: “But this does not hold good as to a will, for although in truth it is not strictly a will, but simply a declaration of use, yet it so far retains the properties of a will as to be ambulatory till the death of the testator, and consequently revocable without any express power reserved for that purpose.” In .support of this several authorities are referred to in note b, all of which we have examined, and all of them are cases in which wills, or instruments held to be quasi wills, had been made in execution of powers previously created. Neither of the cases was similar to the present, where the deed refers to a will or other instrument already in existence. After a very careful examination of the authorities, we think that unless, under some peculiar circumstances, when a deed conveys lands in trust for such uses as are declared, or set out in a will already made, neither the deed or the will is revocable, if no power of revocation is reserved in the deed. And when a deed conveys lands in trust for such uses as the grantor may afterwards appoint by will or deed, if the appointment be by will, then the will may be revoked and new uses declared.

But if this power is executed by such an instrument as may properly be considered a deed, and not a testamentary paper, then the appointment cannot be revoked, ²⁶³ provided the deed executing the power reserves no authority to revoke. In has been said, that instruments in the form of deeds are frequently held to be testamentary papers, and, as such, subject to revocation, and that the instrument now before us should be so considered, because it limits the estate to the use of the grantor for life, and then in trust for the uses in the will and codicils, which can only take effect, beneficially, after the decease of the grantor, as they would by a will. In 1 Sug. on Pow., 275, it is said to have been well settled, that if the instrument executing a power is testamentary in its nature, the mere circumstance of its being in form a deed, sealed and delivered, will not prevent it from operating as a will. The writer then adds: “But it will not be deemed testamentary merely because the limitations, from their nature and the state of the settlement, cannot take effect until the death of the appointor.” See 2 Sim.

Rep., 95, in 2 Eng. Cond. Ch. Rep., 354, Hougham vs. Sandys, and 9 Gill, 440 .

It may be proper to remark, that Mr. Sugden i§ here treating of the nature of instruments executing powers previously created. In note 1, on the page just referred to, the decision in the Attorney General vs. Jones, 3 Price, 368, is noticed. There three judges against Wood, Baron, held that a voluntary deed assigning leasehold and personal estate, securing to the grantor a life estate and the property to others'after his death, with a power of revocation, which he confirmed by his will, was a testamentary instrument within the stamp act. This note speaks of the opinion of Mr. Baron Wood as being undoubtedly sustained by the profession.

In the more recent case of Tompson vs. Browne, 3 Myl. & Keene, 32, in 8 Cond. Eng. Ch. Rep., 264, the deed was for the purpose of securing to the grantor dividends of stock for his use during his life, and disposing of the stock to others after his death.

The deed also contained a power of revocation. This was held not to be a testamentary paper. And Sir C. C. Pepys, (then Master of the Rolls, but subsequently Lord Chancellor Cottenham,) in speaking of the case of the Attorney General vs. Jones, says: “If there ²⁶⁴ be any thing in that decision to support the notion that where a person by deed settles property to his own use during his life, and after his decease for the benefit of other persons, a power of revocation reserved in such a deed alters the character of the instrument and renders it testamentary,, and consequently subject to legacy duty. I can only say that, if this were law, a great number of transactions of which the validity has never been doubted, would be liable to be impeached.” See what is said in reference to the two last mentioned cases, in 1 Jarman on Wills, from page. 14 to 19, inclusive, (2 Jlmer.

Ed.) The present deed is not one executing a power, nor does it contain a power of revocation, but is to confirm a will previously made. If it must be regarded as a testamentary instrument, and therefore revocable as a will, it is difficult to perceive what motive could have induced its execution. Without it, the grantor was in the same situation as, she was with it, under such a construction. Holding these views, we do not think the plaintiffs’ claim can be successfully resisted upon the ground which we have been considering as the first objection to it.

The second ground of objection to the claim of the plaintiffs, which we are to consider,-arises under the statute of 27th Elizabeth, ch. 4. Under its provisions it has been settled beyond controversy, in England, that a voluntary deed is void as ag.ainst a subsequent purchaser for value, whether he purchased with or without notice. This question has been the fruitful source of much controversy,, and has produced' many conflicting, decisions. But the better