Meakin v. Duvall

Miller. <T., delivered the opinion of the Court. The father of the appellee died in 1856, leaving a will which contains this clause: “I will and devise that my two daughters, Elizabeth H. and Mary H. Duvall, each have a per moment home during their single lives at Prospect Hill, my present residence, and that comfortable board be furnished them daring their residence there as aforesaid, by their brother James M. Duvall, at his expense, and the devises and bequests hereinafter made to him, will be made upon the condition that he furnish his sisters with their said board as directed.” He then devised his home place called “ Prospect Hill,” together with considerable personal property, to his said son James. Soon after their father's death James and Mary both died intestate, and without issue. The estate was then in 1861 sold under proceedings in equity for the purpose of partition, and George W. Duvall another brother of the appellee became the purchaser, and in May, 1864, mortgaged it to the appellant to secure a loan of §10,500.' Afterwards in ³⁷⁶ 1868, George W. Duvall became bankrupt, and the assignees in bankruptcy sold tbe property to the appellant for $8250.

This sale took place in April, 1869, and though duly confirmed, the purchaser did not obtain full possession of the dwelling house on the premises until the 15th of August, 1870. Some time after the last mentioned date, the appellee filed her bill against the appellant, in which, after stating most of the above facts, she avers the provisions in the will in favor of her sister and herself, constitute a charge upon the Prospect Hill Estate, that she is single and has never married, that she continued to reside upon the estate from her -father’s death until about July, 1870, when the appellant without her consent took possession of the entire dwelling house, and in fact, expelled her from the occupation and possession of the same, and it is now exclusively occupied by him and his tenant, so that it is utterly impossible and inconvenient for her to reside on said premises, and that since his purchase he has refused, and still refuses to contribute any thing for her board and maintenance, and she therefore prays that the amount now due her as a suitable compensation for such home- and board, and a suitable annuity to be paid her in future therefor, may be ascertained and' decreed to be a charge upon said real estate. The appellant in his answer avers that after his purchase, the complainant excluded him from the property, undertaking to hold exclusive possession of the entire dwelling house against his remonstrance and demands, and that having previously notified her of his intention to take possession of the property, but not so as to interfere ■with the provision in the will in her favor, did take such possession as he had a right to do. He denies that he expelled her from the occupation of the dwelling house, or that the same is exclusively occupied by him or his tenant, or that it is impossible or inconvenient for her to reside ³⁷⁷ on the premises, that on the contrary, he has repeatedly informed her he would not interfere with the provision in her father’s will, that the place was always open for her, and that he would always endeavor to make it a pleasant home to her.

He further says, her whole object has been and still is, to change this provision in the will into the form of a rent in money to be charged upon the property, which he has refused to allow her to do; that while he does not admit that this provision is a charge upon the estate in his hands, yet desiring to avoid litigation, he is willing and still offers as he has always heretofore been willing, and repeatedly offered, that she shall have a permanent home during her single life at Prospect Hill, with comfortable board during her residence there, at his expense, and in general, the full benefit in every particular of this provision in her favor. Testimony was then taken, and the learned Judge of the Circuit Court delivered an opinion sustaining the complainant’s claim, determining the amount she was entitled to receive, as well as the time from which it was to commence; and to enable him to pass a decree, referred the case to the auditor to state an account in accordance with the directions contained in his opinion. After the account was thus stated, a final decree was passed, fixing the amount due for arrearages and the annual sum to be thereafter paid, and decreeing the property to be sold for that purpose, in default of payment of the same. The defendant’s solicitor then gave an order to the clerk to “enter an appeal,” to this Court, “in the above entitled cause.” The appellee has made a motion to dismiss, because the order for the appeal is too general in its character, and does not indicate from what opinion, decree or order of the Court the appeal is taken.

Exit it seems to us clear that we must regard it as an appeal from the final decree. It was taken a few days alter that decree was passed, and by fair intendment must be referred ³⁷⁸ to it, and an appeal from such a decree opens for revision all previous orders in the case from which no previous appeal has been taken. Code, Art 5,,-sec. 22. The motion to dismiss is therefore overruled.

A provision of this character is a charge upon the land, not only while it is in possession of the original devisee, but follows it through all subsequent alienations. This is a proposition so well settled, as to admit of no further question Tolson vs. Tolson, 10 G. & J., 159 ; Willett vs. Carroll, 13 Md., 459 ; Donnelly vs. Edelen, 40 Md., 117 . Looking to the testimony in this record, and the standard of measurement stated in Willett vs. Carroll, we think the money compensation allowed by the decree appealed from, in lieu of the specific enjoyment of the privilege is not unreasonable. But the question is, has the appellee made out a case entitling her to this commutation ?

She is not entitled to such relief, unless the proof shows she has been deprived of, or hindered in, the enjoyment of the privilege, by or through fault of the party from whom she seeks the commutation. On this point the authorities are clear. Thus in Addison vs. Bowie, 2 Bland, 626 , where a testator devised that his wife and daughters and her son shall have a home at his mansion house, the Chancellor, after defining what such a privilege means,says, “the party to whom it is given may enjoy or leave it at pleasure; but he cannot claim compensation for it from any one unless he has been hindered in, or driven from the enjoyment of it.” In Willett vs. Carroll, where the will was that the appellee should have a home for life on the farm, the case was heard on bill and answer, and the appeal was from an order directing the auditor to take testimony to show what was a reasonable allowance in lieu of the provision, on the principles laid down in the Court’s