Nevin v. Gillespie

Miller, J., delivered the following dissenting opinion : I agree that there is not sufficient evidence in this record, to justify a Court of equity in vacating, upon the. ground of actual fraud in fact, the deeds of November, 1856, by which the real estate in controversy, was conveyed by Adams and wife to Knode, and by the latter, to Adams, the husband, in fee. But I am further of opinion, (and in that I understand, all the Judges who heard the case, to concur) that these conveyances were not- a valid execution-of the power of sale contained in the deed from. Piper, of September, 1832, and that being so, I am clearly of opinion, that upon her death, the heirs of Mrs. Adams took the estate under this latter deed. The state of the title, as I understand the case, is as follows: Archibald Ritchie,, who died in 1828, left a will by which he devised this property to his wife in fee simple.

By this will, his widow was vested with an unqualified and absolute estate in this land. She could do with it as' she pleased, so long as she remained unmarried. But she afterwards married Mr. Adams, and by this marriage,_ her real estate at that time, became subject to the curtesy interest of her husband, but as there was no issue of this marriage born alive, the land upon her death, intestate, would have descended to her heirs-at-law, if there had been no intervening conveyances thereof. After this marriage, she could not sell and convey the land unless ³³¹ her husband joined, in the deed, nor, as the law then stood, could she devise it, except hy a will executed with his consent.

Let us now see what conveyances were made, with what purpose, and with what effect. In September, 1832, Adams and wife united in a deed, conveying the land to Daniel Piper in fee, for the nominal confeidération of five dollars, and on the same day Piper executed a conveyance for the same nominal consideration, hy which he conveyed it to Mrs. Adams in'fee, “for her sole and separate use and benefit," with full power “ to sell, and convey the same in fee simple hy deed," “and in default of a sale of the said real estate,- or any part thereof, by the said Mary Anna Adams, then to the separate use of the said Mary Anna Adams for life, and after her death, to the use of such person or persons, for such estate or estates, interest or interests, as she may hy her last will, or any instrument of writing under her hand and seal, and attested by three witnesses, limit and appoint, and in default both of such appointment, will and sale, then to the use of the heirs-at-law of the said Mary Anna Adams, in fee simple.” The powers here enumerated and granted, are clearly the power to sell, and the power of appointment by deed or will. By these powers she was vested with the same control over her property, as if she had remained unmarried, and the whole purpose of this deed, as it appears to me, was to create these powers, and in default of their execution to give the property to her heirs-in fee. It was needed for no other purpose, and could have been intended to accomplish no other object, as she already possessed the property in fee under the will of her first husband.

She made no appointment by deed or will, and if the deed to Knode of 1856, was not a valid execution of the power of sale, what prevents her heirs from taking under the Piper deeds. Nothing, so far as I can see, unless the Rule in Shelley’s Case is to he applied. But I take it to be clear upon the authority of Ware vs. ³³² Richardson, 3 Md., 505 , and the cases there referred to, that where an estate is limited either by deed or will, to the sole and separate use of a iparried woman for life, and after her death, to the use of her heirs in fee, she takes but an equitable life estate, while her heirs take a legal ■estate, and this prevents the operation of the rule ; for it is a well recognized exception to the rule, that where the estate limited to the ancestor, is an equitable or trust estate, and that to the heirs an executed use or legal estate, the two will not coalesce in the ancestor, and so if the estate for life be a legal, and that to'the heirs an equitable estate, in such cases, the rule does not apply. It is not necessary that a trustee should be named in the conveyance, to make the life estate an equitable one, for, as was said in Ware vs. Richardson, 3 Md., 550 , “it is now settled, that where bequests or conveyances are made to married women for' their separate use, without the nomination of trustees, the husbands in equity will be considered as trustees for their wives, and will be required to comply with the intention of the donor.” For these reasons, I am constrained to dissent from the decision of my Brothers, to the effect that the heirs of Mrs. Adams' have no title to this property, or are estopped from contending that the power of sale was not validly executed by the deeds of 1856.

Irving, J., delivered the opinion of the Court. The real estate over which this controversy has arisen, has been sold under a decree of the Circuit Court for Washington Countjr, by the consent of all the parties to the suit; and the questions for decision are presented by exceptions to the .special auditor’s report filed in the cause, which have been overruled by a pro forma order, and the audit in the particulars excepted to ratified, from which -order this appeal has been taken. Both appellants and appellees claim the fund; so the question is one of title to the real estate sold; and its solution depends upon the proper construction of several deeds, and whether • the conveyance to the grantor of appellees’ intestate John Alexander Adams, was made in the due and bona fide execution of a power by Mary-Anna Adams, the appellants’ intestate. In 1828, Mary Anna Adams was the widow of Archibald Ritchie, and entitled by his will to an .absolute estate ³²⁴ in fee to the real estate now in controversy.

Sometime-between 1828 and 1832, she was married to Rev. John Alexander Adams. On the 12th day of September, 1832, they executed to Daniel Piper, a deed in fee for the land in dispute. On the same day, Daniel Piper re-conveyed the land to Mrs. Adams, (one of the grantors.) In the granting clause of the deed, the conveyance is to “ Mary Anna Adams, her heirs and assigns forever.” The habendum clause of the deed, is in the following language, viz., “To have and to hold the said farm called ' West Farm,’ with every the appurtenances, unto the sole- and separate use and benefit of the said Mary Anna Adams, 'with full power to the said Mary Anna Adams, to sell and convey in fee simple, by any deed or deeds to be by her executed, and acknowledged before any two justices of the peace of Washington County, either the whole or any part of the said real estate, called the ‘ West Farm,’ and in default of a sale of the said real estate, or-any part thereof, by the said Mary Anna Adams, then to the separate use of the said Mary Anna Adams, for life, and after her death, to the use of such person or persons, for such estate or estates, interest or interests, as she may by her last will and testament, or any instrument of writing under her hand and seal, and attested by three witnesses, direct, limit and appoint, and in default both of such-appointment, will and saTepthen to the use of the heirs-at-law of the said Mary Anna Adams in fee simple. ' Provided, nevertheless, and it is the true intent and meaning of these presents, and of the parties thereto, that the said estate called the ‘ West Farm,’ is to remain charged and .liable, both at law and equity, to the said John Alexander Adams, for all the debts of the late Archibald Ritchie, deceased, either already paid, or hereafter to be paid, and satisfied by him, and also, that the said estate is to remain charged and liable aforesaid, to the said John Alexander Adams, for all debts or sums of money already con ³²⁵ tracted or paid, or which hereafter may he contracted or paid hereafter hy him, for or on account of the said Mary Anna Adams, or in defending her estate or rights in the premises.” On the 27th day of November, 1856, John Alexander Adams and wife, by deed, reciting the power to sell, and professing to be in execution of that power, in which the consideration therefor is stated to be one hundred dollars, conveyed the same farm or estate to Urias Knode, who on the same day conveyed the same by deed for a like consideration to John Alexander Adams in fee. Both these deeds were executed before two justices of the peace, and were duly recorded.

These deeds, on their face, put the title to the estate in John Alexander Adams, who having died intestate, the appellees claim the estate as his heirs-at-law. The appellants claim the estate as the heirs-at-law of Mrs. Adams, and contend that the conveyance to Knode, through which John Alexander Adams took title, is invalid for two reasons, viz., 1st. Because the transaction was not warranted by the power reserved to Mrs. Adams in the deed of settlement, which, for convenience may be called the Piper deed, but was in fraud of the power conferred by that deed. 2nd. That the Knode deed was