Numsen v. Lyon

Bryan, J., delivered the opinion of the Court. Nathaniel and William Numsen, trustees under a will, sold to Samuel H. Lyon a tract of land in the city of Baltimore. It was agreed as a condition of the sale that the title to the property should be in fee-simple and clear of all incumbrances. The purchaser by appropriate proceedings excepted in a Court of Equity to the ratification of the sale.

His exceptions were sustained and the sale set aside and annulled. The trustees appealed. The title to a portion of the land was derived from a sale under the decree of a Court of Equity in the case of Busk and others v. King, passed in April, eighteen hundred and sixty-five. The exceptions to the ratification of the sale allege that this title is defective.

John King died seized in fee of this portion of the land, and it descended to his heirs subject to the dower of his widow. His children were four in number. After his death the widow intermarried ⁴⁰ with Thomas M. Busk ; and in eighteen hundred and fifty-four they conveyed all of her property of every kind to John W. Randolph upon certain trusts, which are not involved in any question in this case. In eighteen hundred and fifty-nine Caroline, one of his daughters, in contemplation of marriage with Edgar G. Taylor, conveyed in conjunction with him to the said John W. Randolph all of her property of every kind upon the following trust, that is to say : “ To permit and suffer the said Caroline King during the term of her natural life, to take, hold, use and enjoy the said property, estate and effects, and the rents, issues and profits thereof, for her sole and separate use as a feme sole, and at her death for the use of any descendants she may have living at the time of her death, and in default of such for the use of her right heirs, with power, however, to the said Caroline King during her life to devise or bequeath the same or convey the same by deed with- the assent of the said trustee testified by his uniting in the same deed.” Years after the execution of these deeds a bill in equity was filed, which prayed a decree that the land should be sold for the purpose of partition.

The parties to the suit were Caroline Busk, who had a second time become a widow; John W. Randolph, who is called in the bill “ trustee as hereinafter mentioned Taylor and Caroline, his wife; the three remaining children of John King, deceased, and the husband of. a married daughter. It was alleged in the bill of complaint that Mrs. Busk and her husband had executed the deed of trust already mentioned to John W. Randolph ; but no allusion was made to the deed of trust executed by Taylor and his wife. A sale was decreed and made, and Mrs. Taylor received one-fourth of the proceeds of sale, after the deduction of the amount allotted to the widow in lieu of dower. By the terms of the deed to Randolph, Caroline^ Taylor had an equitable life-estate, with a contingent remainder to such descendants as might be living at the time of her death, and if none snch should then be living a remainder was ⁴¹ given to her right heirs.

These remainders were legal and not equitable. They depended on a contingency with a double aspect; that is, in the event of her leaving descendants living at the time of her death, their title then vested; but in the other event of her leaving no living descendants at the time of her death, the title of her right heirs then vested. One of these contingencies would be sure to occur at the time prescribed; and only one of them could occur. Caroline had a power to devise this property, or to convey it by deed with the assent of the trustee, which consent was to be testified by his uniting in the deed.

The nature of the estate belonging to Caroline as affected by the power to dispose of it is clearly shown in Benesch v. Clark, 49 Md. 504 . The Court there says : “ Now, it is quite clear, upon all the authorities, that where an estate is given to a person generally or indefinitely, with power of