McIntyre v. Byrne

Prescott, J., delivered the opinion of the Court. The first matter to be disposed of in this appeal is the appellee’s motion to dismiss the appeal. This motion is based upon alleged violations of Maryland Rule 828 by the appellant. As we have decided to overrule the motion, we shall not consider it in detail; but, we shall say that the motion ⁷⁴ presents a very close question for our decision.

The Rule is clear, definite and certain; there is little excuse for having an attorney’s compliance therewith questioned, much less to have it closely challenged. The substantial rights of litigants to have judgments and decrees reviewed upon appeal should not be jeopardized by the possibility of failing to comply, or reluctance to comply, with a Rule so easy to follow. We are constrained to say that the appellant in this case barely escaped dismissal of 'the appéal. The motion is overruled.

There is only one question on the merits of the case for our decision, and that is not very complicated. The action is in ejectment and both sides agree that the record title of the appellee depends upon the proper interpretation of the last will and testament of Nicholas Allender, i. e., if under said will the 4.25 acre parcel in question (Parcel B as later designated) passed unto the appellee’s predecessor in title, Nicholas Bowen Allender, who was the son of Nicholas Allender, then the appellee’s record title is conceded. On the other hand, if said 4.25 acre parcel did not pass under said last will and testament unto Nicholas Bowen Allender but passed to William R. Allender, another son, then the record title of the appellee is disputed. The pertinent provisions of the will are as follows: “To my son, William R. Allender that portion of my Real Estate lying on the left hand side of the Public Road leading from the old Joppa Road to Henry Record’s Saw Mill on the Little Gunpowder Falls, said Portion being separate from the Rest of my Real Estate, and his heirs forever.” (Emphasis supplied).

In the next paragraph thereof the testator devised the rest and residue of his real estate unto two other sons, Nicholas Bowen Allender and another. As stated above, it is conceded that if the 4.25 acre parcel of land passed under the quoted provision of the will, then the appellee’s record title is not complete; but, if it passed under the “rest and residue” provision, then her record title is complete. In order that the opinion may be followed more easily and ⁷⁵ to prevent the necessity for lengthy descriptions, the Court has had prepared, a plat, which is a small version of Plaintiff’s Exhibit No. 1, and it will be included in the reports. B is the 4.25 acre parcel of ground in dispute, which was owned by Nicholas Allender when he made his will and at the time of his decease.

C is a 22 acre parcel that lies on both sides of the road shown, which was not owned by Nicholas Allender either at the time he executed his will or at his death. D is a 68 acre parcel owned by Nicholas Allender when he made his will and at the time of his death, and is now owned by the appellants. E is a 59.03 acre parcel, which ⁷⁶ includes B, that was deeded, by metes and bounds description, to the appellee and her husband, since deceased, in 1943. A F G H is the public road leading from the old Joppa Road to Henry Record’s Saw Mill mentioned in Nicholas Allender’s will.

Nicholas Allender executed, his last will and testament in 1885 and died in 1887. At the time his will was made and at the time of his death, he owned two farm units: (1) a farm consisting of Parcels B and E and additional acreage, and (2) a farm consisting of 68 acres (Parcel D) on the north side of the road A F G H. Nicholas Allender had received both of these farms by devise from his father and the description of the 68 acre parcel was described in his father’s will in very similar language to that of the above quoted provision of Nicholas’ will. Parcel B and the major part of Parcel E were contained in the same resurvey patent in 1738 and have been together ever since unless the will of Nicholas Allender segregated them. The land of Parcel B is hilly and wooded, and has never been cultivated, but there was an old fence on its eastern boundary.

There was evidence to the effect that, both before and after the death of Nicholas, no one ever utilized the land or cut timber therefrom except the owners of Parcel E; and no one in the appellant’s chain of title ever made any claim to Parcel B until 1951. The appellants contend that both Parcels B and D lie on the left hand side of the public road mentioned in Nicholas Allender’s will and this road separates them from the