O'Brien v. Clark

Boyd, J., delivered the opinion of the Court. This is an appeal from a decree of Circuit Court No. 2, of Baltimore City, construing a clause of the will of the late Joseph Zane, of the city of Boston. It is as follows: “I give, devisee and bequeath to John Grace Suman, of Baltimore, Md,, my real estate corner of Baltimore and Carey streets, in said Baltimore, containing about fifteen hundred square feet of land and the buildings thereon, find the sum of twenty thousand dollars, in trust nevertheless, for the uses and purposes following, towit.” It then directs the annual income of said real estate and from the money to be paid quarterly to his nephew, Joseph Zane, for his natural life, and that after his death ‘ ‘the remainder of said real estate and said twenty thousand dollars shall go to” his grand niece, a daughter of Joseph Zane, during her life “and to her children in fee simple,” if she leaves issue, and provides . that if she dies without issue, the real estate and money shall go to his heirs at law discharged of all trusts. The question to be determined is what the testator intended by “my real estate,” etc., in this clause.

A statement of facts was made by the attorneys and concluded by agreeing that the case be “set down for. hearing on the bill, answers, exhibits, replication and the above agreement.” The testator purchased by deed of May 7th, 1883, the leasehold interest in a lot of ground described as beginning “at the corner formed by the intersection of the north side of Baltimore street and the west side- of Carey street, and running-thence northerly bounding on Carey street forty-two feet and one inch, thence westerly parallel wi.th Baltimore street one hundred and fifty feet or thereabout to Woodyear alley twenty feet wide; thence ³³ southerly bounding on Woodyear alley forty-two feet and one inch to Baltimore street, and thence easterly bounding on Baltimore street one hundred and fifty feet or thereabouts to the place of beginning.” That lot is subject to an annual rent of $280. * just two years .afterwards, to wit, on May 7th, 1885, a lot was conveyed to the testator in fee, fronting on Carey street, and running back to Woodyear alley, with an even width of forty-two feet and one inch. The deed for this lot calls to begin on Carey street forty-two feet and one inch from the corner of Baltimore and Carey streets, but it does not call, for the leasehold lot. He thus had and still owned when he made his will, and when he died, property fronting on Careys street eighty four feet and two inches, running back to Wood-year alley and bounding on Baltimore Street—one-half of which was leasehold and the other half in fee. The exact depth of the whole property from Carey street to Woodyear alley is one hundred and forty-six feet and four inches, as-shown by the plats filed.

When the testator purchased the two lots, they were improved as follows: There was a three-story brick house on each side of the division line between the two lots, with a party wall on the line, known respectively as No. 4 and No. 6 North Carey street, each house having a frontage of twenty-three feet and one inch and having originally a side yard to-each of nineteen feet, fronting on Carey street. The side yard of No. 4 North Carey street also bounded on Baltimore-street, and before Joseph Zane purchased the properties that, side yard was improved by a two-story building known as-1300, 1302 and 1304 West Baltimore street, covering sixty feet and six inches, also by a stairway leading to the second story of that building a little over five feet wide, by a one-story frame building west of the stairway, known as 1306-West Baltimore street and fronting fifteen feet thereon, and another one-story frame building west of that known as 1308 West Baltimore street and fronting fourteen feet thereon. After Joseph Zane purchased the lots he erected a large brick ³⁴ building along Woodyear alley, which fronted forty-eight feet and one inch on Baltimore street and ran back eighty-four feet and two inches—one-half being on the leasehold lot and th.e other half on that owned in fee. The lower part of that is used as a livery stable and the second floor as a public hall known as ¿ane’s Hall, and to the east of it there is an alley way fronting three feet and six inches on Baltimore street.

We will request the Reporter to print the plat marked “Defendant Boteler’s Exhibit A,” as it sufficiently describes the lots and improvements. It is admitted that the testator, for years before the execution of the will, lived in Baltimore one or two months of every year, and while in said city resided at No. 4 North Carey street, and hence was familiar with the property. The entire tract—including the leasehold and the lot owned in fee—contains 12,600 square feet of land, while the two-story brick building (Nos. 1300, 1302 and 1304 West Baltimore street), the stairway and the one-story frame house (1306 West Baltimore street) occupy 1,534 square feet of land. The appellees contend, and the lower Court so decided, that the testator intended by the above devise to only include the 1,534 square feet, while the appellant claims that the will should be construed to include the entire property—containing 12,600 square feet.

It is well established that quantity is the least certain element of descriptions of lands, but in the absence of some more definite description it may be controlling. In 5 Cyc., 929, it is said: “Quantity, although less reliable and last to be resorted to of all descriptions of boundaries, may, nevertheless, in doubtful cases, have weight as a circumstance in aid of other calls, and in the absence of other definite description it may have a controlling force.” In 4 Am. & Eng. Ency. of Law, 789, the general rule is announced, and then on pages 790 and 791 it is said: “Quantity aids in ascertaining the premises granted when they are not described by known and established boundaries,” and again, “Quantity controls in the following cases: Where it is of the essence of the contract; ³⁵ where the other parts of the description are not sufficiently certain in defining the parcel of land intended to be conveyed; where there is a clear intention expressed in the deed to convey a certain quantity only; where there is an express or implied covenant in the deed to convey a definite quantity; and where there are no calls for monuments or for courses and distances set out in the deed.” While some of the instances mentioned in the last quotation are not applicable to the construction of wills, others are not only applicable but important when construing a will having such a description of property as this, and the general rule announced above is fully sustained by those two authorities. When the testator added to the devise of his real estate corner of Baltimore and Carey streets the words, “containing about fifteen hundred square feet of land and the buildings thereon,” it would seem that he must have had some object in view—particularly when we remember that he had more than eight times that amount of land at or near that corner.

He did not mention the number of square feet in the property left to his brother, Peter Zane, but described it as the house he lives in, now numbered 1334 Strieker street, Baltimore, Md., in fee simple.” So the house he left to his sister, Eliza Jane Osier, he described as “the house she now occupies, now numbered 229 North Gilmor street, Baltimore, Md., in fee simple.” The only other devise he made in which he stated number of square feet was that of his Washington street property in Boston. The reason for that does not appear, and in the same trust he included his house and land on Blossom street, corner of McLean street in Boston, without stating the number of square feet. There being nothing in the record from which we can ascertain whether the property on Washington street, devised by the will, included all the testator’s real estate on that street, or from which we can find any special reason for naming the number of square feet, that devise does not throw any light on the question before us. But inasmuch as he did not designate the number of square feet n either of the other properties in Baltimore, or in any but ³⁶ the one property in Boston, it is fair to assume there was some reason for doing so in this instance.

The most reasonable explanation for it is that he did not intend to devise all of his real estate at the corner of Baltimore and Carey streets. If he intended to include all, he could simply have said—“all my real estate at the corner,” etc., or have given the frontage on the two streets, but when he used the expression quoted above he indicated that he only intended to devise some part of his property at that corner which