Potomac Lodge No. 31, I. O. O. F. v. Miller

Boyd, C. J., delivered the opinion of the Court. The appellee filed a bill in equity against the appellant for the specific performance of a contract to purchase a property on the west side of South Potomac Street in Hagerstown. The appellant filed an answer in which it stated that it wanted the property, and was ready and willing to pay the balance of the purchase money if the appellee could convey such an estate in the property as is required by the agreement, but alleged that he could not do so. The Circuit Court for Washington County decreed specific performance by the appellant as prayed for in the bill, and from that decree this appeal was taken.

George Brendel, by his last will and testament, which was probated the 14th day of August, 1855, left to his daughter, ⁴⁰⁸ Elizabeth G. Smith, a lot on South Potomac Street and all of his personal property. He directed his executor to rent out all of the rest of his real estate for such a length of time as was required to raise from the rents the sum of $1,200.00, which sum he gave to his daughter for the purpose of aiding her in erecting a comfortable home on the lot lie devised to her. He then gave her $250.00 which was to be paid by charging her with the appraised value of the personal property he had left her and paying the balance oxit of the rents of the real estate after the $1,200.00 had been realized. The next items in the will are as follows: “Item.

I give and devise to my son, Henry G. Brendel, to hold in trust for his children that may be living at the time of my death, the first choice of all my houses and lots, except the one I have herein devised to my daughter Elizabeth (the two houses on Antietam street are to be considered one property), and the said property so selected by my said son Henry, as trustee for his said children, shall be given over to him, my said son, after the money, which is to be paid to my said daughter Elizabeth, shall have been raised out of the rents of my real estate as aforesaid. Item. I give and devise to my daughter, Catherine Hammer, the second choice of my houses and lots, she to have possession of the same when a sufficient amount' shall have been raised from the rents as aforesaid to be paid to my said daughter Elizabeth, said property so selected by my said daughter Catherine shall be held by her during her natural life, and after. her death to go to her children, share and share alike. Item.

I give and devise my remaining house and lot, that is the one that will be left after my son Henry as trustee aforesaid, and my daughter Catherine shall have respectively selected theirs as aforesaid, to my son John’s two children, their heirs and assigns, forever, my said grandchildren to get possession of their property when a sufficient amount has been raised from the rents for the purposes aforesaid, as in the case of my son Henry and daughter Catherine.” On the 3rd day of June, 1905, Annie A. Gray and husband, Mary E. Brendel, Eranklin A. Brendel, Graves S. Brendel and wife, and Charles H. Brendel and wife, who ⁴⁰⁹ are described in the deed as “being the heirs at law of Henry G. Brendel, late of Washington County,” conveyed the property in controversy to the appellee. The answer of the defendants gives as reasons why the plaintiff could not convey such an estate as is required by the agreement between them the following: («•) Because the above-named grantors are not all of the children of Henry G. Brendel, deceased, who were living at the time of the death of George Brendel, and the descendants of such children; (b) Because Henry G. Brendel, trustee, never made a legal and proper choice and selection of the property mentioned in the bill of complaint from and among the three separate properties left and devised by George Brendel, as required and directed by the will; (c) Because, no legal and proper choice or selection being made, the title to the property would likewise he in Catherine Hammer and John Brendel’s two .children, as well as in the said Henry G. Brendel, trastee; and (d) Because the trust is still existing. The first objection (a) was abandoned by the appellant, and the testimony shows that all of the children of Henry G. Brendel, living at the time of the death of George Brendel, united in the deed. We will consider objections (&) and (c) together.

At the time of the death of George Brendel he owned what he treated as four pieces or parcels of ground, — one being the south half of Lot Ho. 130 on South Potomac Street, which he left’ to his daughter, Elizabeth G. Smith, another being the north half of that lot, and being the property in controversy; another consisting of two houses on Antietam Street, which the testator said were to be considered one property, and the other on the Williamsport and Hagerstown Turnpike, now known as Jonathan Street. The testator died in 1855, and Henry G. Brendel died in 1890. The theory of the appellant is that as the will did not designate what particular property the respective devisees should, take, they were tenants in common of all of them, and hence ⁴¹⁰ there should have been a deed of partition, or a deed from each two of them to the third. But it is clear from the will that the testator did not intend that they should be tenants in common — on the contrary, he said that Henry G. should hold the lot he selected for his children living at the death of the testator, that Catherine should have the one of the two remaining lots which she selected and the two children of his son John should have the other one.

There can be no doubt about the right of Henry to make the first choice, and it becomes in reality a question of what is sufficient evidence of his choice, and not the right to malee it. The first choice was a right that Catherine and John’s two children could not deprive him of, and could not well aid him in. The testator did not devise the three lots to Henry, Catherine and John’s two children, with direction that they should divide them between themselves, giving Henry the first and Catherine the second choice, but he gave to Henry, to hold in trust for his children, “the first choice” of all his houses and lots (except the one devised to Elizabeth), “and the said property to selected by my said son Henry, as trustee for his said children, shall be given over to him ” after the money was raised out of the rents of the real estate for Elizabeth, and he g*ave to Catherine the second choice of his “houses and lots, she to have possession of the same when a sufficient amount shall have been raised from the rents as aforesaid.” The gift to John’s two children shows still more clearly that they were not intended to be tenants in common, for all that he gave them was “my remaining house and lot, that is the one that will be left after my son Henry, as trustee aforesaid, and my daughter Catherine shall have respectively selected theirs as aforesaid” — they “to get possession of their property when a sufficient amount has been raised from the rents for the purposes aforesaid, as in the case of my son Henry and daughter Catherine.” In a word, he gave one property to each. ⁴¹¹ The testator apparently intended that the property should remain in the executor until the money for Elizabeth was raised, and then he was to turn over the possession of the one selected by Henry to him, of the one selected by Catherine to her and the remaining one to John’s two children. It might have been better for the executor to have placed on the land records some statement or declaration showing what selections had been made by Henry and Catherine, but while that might have been more satisfactory evidence of the selection by them, it was not the only evidence by which the selection can he shown.

It was suggested in the appellant’s brief that if Henry had refused to make first choice, he could have prevented any of the parcels from ever vesting in Catherine or John’s children, and that if Henry did make his selection hut Catherine had refused to make the second choice she could have prevented either of the two remaining parcels from vesting in John’s children. But, although such a contingency was not likely to arise, as Henry had the first choice, if he had refused to make it after the money for Elizabeth had been raised, he could have been compelled to make the selection within a reasonable time, and upon failure to do so a Court of equity could have given the other parties ample relief, and so in the case of Catherine, as affecting John’s children. The testator manifestly intended that each of the three should have one of the lots, and if those having the first or second choice refused to exercise it, the Court could either have made it for them or at least have protected the other devisees. In Bouvier’s Law Dielionary “election” is defined “choice, selection,” and “The obligation imposed upon a party to choose between two inconsistent or alternative rights or claims, in cases where there is clear intention of the person from whom he derives one that he should not enjoy both.” We do not understand it to be claimed by the appellant that the devises to the several devisees were invalid, because the testator did not leave any particular one of the three properties to either of them.

Such devises are not void for uncer ⁴¹² tainty as to the property because the testator has provided means by which they can be made certain. The maxim “Id cerium est quod cerium reddk potest” is applied to such cases, 1 Jarman on Wills, 362. The devise being valid, and there being nothing on the face of the will from which it can be determined which of the three properties Henry took, under the authority to make the first choice, the question is, what evidence can be used to show what his choice was ? If it be conceded, as it must be, that the testator did all required of him in order to vest title in Henry to one of the three properties, but did not prescribe the character of evidence which should be necessary to show what his choice was, it would be remarkable, and an exceedingly harsh rule of law, if the interests of the children of Henry must be defeated, merely because there is no deed or declaration of Henry or of the executor to him in the land records.

It must be kept in mind that the testator did all that was necessary to have the title pass out of him, and we think we have shown that no interest in the lot selected by Henry vested in Catherine or John’s-children, and hence if they had made a deed to Henry it would not have conveyed any interest in that lot. It cannot be denied that the title to much valuable real estate must depend in part upon parol testimony. If A. dies intestate, leaving children or other heirs, his real estate descends to his heirs, but if they or their assignees institute an action of ejectment, relying on that title, in order to recover they must prove that A. died intestate and who his heirs were. There may be, and often is, no record evidence to prove who the heirs were, and resort is had to parol evidence to establish that, as well as the fact that the ancestor died intestate.

Property held by adverse possession is proved the same way, and what is more analogous to this case is where the doctrine of election is applicable. It was said in the opinion of Judge Peioe, adopted by our predecessors in Whitridge v. Parkhurst, 20 Md. 62 : “It is certain that an election may be determined by matter in pais as well as by ⁴¹³ matter of record, but it can only be by plain and unequivocal acts, White's Eq. Ca., Streatfield v. Streatfield, 65 Law Library, 289. It may be either express or implied.

Considerable difficulty often arises in deciding what acts of acceptance or acquiescence amount to implied election. This question must be determined more upon the circumstances of each particular case, than upon any general principle. Dillon v. Parker, 1 Swans. 382, note; White's Eq. Ca., 65 Law Library, 27.1, note.

To constitute an election there must be a choosing between the two ; the taking of the one and the rejection of the other.” We, of course,