Peper v. Traeger

¹⁷⁶ Digges, J., delivered the opinion of the Court. The appeal in this case is from an order overruling exceptions filed by the appellants, the purchasers, to the ratification of a sale of real estate located in Baltimore County. It is stated in the brief of the appellees that the proceedings were based upon chapter 273 of the Acts of 1868, now codified as section 243 of article 16 of the Code. The bill alleges that Louis Freund was seised and possessed of the land mentioned and described in the bill, which he acquired by two deeds, one dated November 26th, 1874, and the other dated June 27th, 1877, both duly executed and recorded among the land records of Baltimore County.

Certified copies of these deeds were filed as exhibits with the bill and prayed to be taken as a part thereof. The first deed conveyed nine acres and twenty-seven perches of land; and the second deed conveyed two tracts oij parcels of land, the first containing one acre, two roods and thirty-five square perches, and the other containing six perches. That, being so seised, Louis Ereund died in May, 1890, leaving a last will and testament executed in form to pass title to real estate; a certified copy of which will is also filed as an exhibit with the bill; by the second item whereof the testator devised and bequeathed as follows: “I give and devise unto my said son, Charles A. Freund, until his eldest child attains the age of twenty-one years, all that tract or parcel of land mentioned and described in a deed from William T. Smith and wife to me, dated November 26th, 1874, and recorded among the Land Records of Baltimore County in Liber J. B. No. 89, folio 562, etc., and also all that portion of a tract of land mentioned and described in a deed from Andrew E. Warner to me (dated June 27th, 1877, and recorded among the Land Records of Baltimore County in Liber J. B. No. 102, folio 255, etc.), which binds on and adjoins the property mentioned in the deed from Smith to me on the northwestern side; and on arrival of said eldest child of my said son at the age of twenty-one years, then I give and devise ¹⁷⁷ the said two (2) tracts of land in this item referred to, to the children of said Charles A. Prennd who maybe then living and who may be- living at the time of his death, and the descendants of any of his said children who may be living at the time of his death, the descendants of any deceased child or children to take its parent’s portion by representation, per stirpes and not per capita, in fee; it being my intention that all the children of my said son who may be living at the time of his death, or their descendants, then living, shall have an equal interest in said land per stirpes and not per capita, and that said land shall vest in said children as aforesaid and said Charles A. Freund shall he divested thereof when his eldest child arrives at the age of twenty-one years as aforesaid.” That the said will, with the two codicils thereto, was duly admitted to probate in the Orphans’ Court of Baltimore County and letters testamentary were granted to Charles A. Freund, Sr., one of the executors named in the will. That the usual notice to creditors was passed by the said court, duly published, but no creditors have ever appeared or filed any claims against said estate.

That the funeral expenses and orphans’ court charges were paid by Charles A. Freund, Sr., and that he waives reimbursement for such payments. That the said Charles A. Freund, Sr., one of the parties plaintiff to the bill, hereby relinquishes all the right, title or interest he may have in the land devised by the second item of said will, in favor of the remaindermen in said second item mentioned. The bill then alleges who are the children of Charles A. Freund, Sr., and who are the children of Harry J. Freund, a son of Charles A. Freund, Sr., who died after the death of his grandfather, Louis Freund, and before the filing of the bill. These children are alleged to be three in number: Catherine, Eva and Harry Freund, aged, respectively, thirteen, nine and four years.

After naming all the children of Charles A. Freund, Sr., and the three children of the de ¹⁷⁸ ceased son, together with their respective wives and husbands, the bill further alleges that there are no other persons in being who are in any manner entitled to any right, title or interest in the property described in the second item of the will; that the parties plaintiff entitled to said property are desirous of holding their respective shares therein in severalty and not jointly as tenants in common with one another or with said defendants. That the said property is not susceptible of division in kind without material loss to the parties entitled thereto, and in order to make division thereof it will be necessary that the said property be sold and the proceeds of said sale divided among the parties entitled thereto according to their respective interests therein. That the land is not productive, and that the plaintiff Charles A. Freund, Sr., “life tenant under said will,” is of advanced years and physically incapable and unable to make said land productive. That it would be for the best interest and advantage of the said infant defendants that their respective shares in said property be converted into cash and reinvested for their benefit.

The prayers of the bill are, that the provisions of said second item of the last will and testament of Louis Freund be construed by the court; that said property be sold by a trustee to be appointed by the decree, and the proceeds brought into court and divided among the parties thereto according to their respective interests in said property; that if the court should so construe said will, that the proceeds of the sale of said property may be reinvested for the benefit of the parties hereto' as their respective interests may appear, and for general relief. The parties to the bill were Charles A. Freund, Sr., and all of his children and descendants of children, with their respective husbands and wives; the defendants being Elizabeth Traeger, daughter of Charles A. Freund, Sr., together with her husband, and the three infant children of Harry J. Freund, deceased. The adult defendants answered the bill, admitting the matters and facts stated therein to be true, and consenting to a decree for the sale of the property. The ¹⁷⁹ infant defendants were duly summoned, tlie guardian ad litem appointed, and tlie answer of said guardian filed submitting the rights and interests of the infants to the care and protection of the court.

The grounds of exception relied upon by the appellants were three: .First, that there was no administration upon the estate of Louis Freund under his said will, and that the voucher docket in the office of the register of wills of Baltimore County shows that seven claims, aggregating $351.75, were filed against the estate of Louis Freund and there is nothing on said records to indicate or show that said claims were ever satisfied; second, that there is an ambiguity in the second item of said will set forth in the bill of complaint, in that it is not clearly apparent whether or not Charles A: Freund, Sr., mentioned therein as beneficiary, received an estate which ended when his eldest child reached the age of twenty-one years, or which lasted through the lifetime of the said Charles A. Freund, Sr.; and third, that the second parcel of land mentioned and described in the deed dated June 27th, 1877, containing six perches, from Andrew E. Warner and wife to Louis Freund, although purporting to convey an absolute estate therein to Louis Freund, in fact only conveyed a one-fifth undivided interest therein. The exceptants further state that this six-perch piece of land belonged to Dorothy Warner, who died intestate prior to January 24th, 1870, leaving surviving her her husband, Andrew E. Warner, Sr., wbo also died intestate prior to January 24th, 1870; and leaving also surviving her three children and four grandchildren; said children being Elizabeth Warner, Martha Emich, and said Andrew E. Warner, Jr.; and the said grandchildren being George Warner, John Warner, and Dorothy Warner, who were the children of George Warner, the deceased son of Andrew E. Warner, Sr., and Dorothy Warner ; and Andrew Eudder, who was the son of Annie Eudder, a deceased daughter of the said Andrew E. Warner, Sr., and Dorothy Warner. Wo will dispose of the first and third grounds of exception before considering the second. The case was submitted to the ¹⁸⁰ court below on an agreed statement of facts, in which it is agreed that all of the claims and debts mentioned and described in the second paragraph of the exceptions were long ago paid, settled, and satisfied, with the exception of the claim of Charles A. Ereund, Sr., which said claim has been expressly waived by him in the bill of complaint.

This disposes of the first exception. It is also agreed that the only part of the land mentioned in the proceedings, the title to which has been questioned by the said exceptants, is that referred to in paragraph ETo. 3 of the exceptions, which land is that secondly described in the deed from Andrew yE. Warner, Jr., and wife to Louis Freund, dated June 27th, 1877, containing six square perches of land. That this deed purported to convey an absolute interest, and that the whole six perches of land described therein was actually possessed and occupied by Louis Freund under color of title derived from the said deed of June 27th, 1877, from