Scarlett v. Montell

Page, J., delivered the opinion of the Court. The bill in this case was filed for the purpose of obtaining the specific performance of a contract for the sale of certain property situate in Baltimore County. The appellant declines to perform upon the ground that the title of the appellees to the property contracted to be sold is not good and merchantable. His contention is stated in his answer to the bill of the appellees and is substantially that Arthur G. Mon-tell acquired his title by deed from Walter V. R. Berry, trustee, under the will of Wilmot Johnson, and by reference thereto it will “affirmatively appear that the title to said property did not pass thereby.” ¹⁵⁴ The facts of the case, about which there is no dispute, are that Margaret Johnson, the wife of Wilmot Johnson, died in 1897, leaving a last will by which she “devised, and bequeathed” all her estate to her husband for life “with power to will the same to her sisters or brothers, or nephews or nieces, or- any of them in such portions as he may see fit.” In case her husband did not survive her, she gave certain pecuniary legacies to her nephew, god-son and name-sake, respectively, each of whom she names and designates, the amount each shall receive, “to be paid in cash or in the bonds of the Van Rensselear Land Company at par as her executor, (her husband), may decide ; and in case her husband survived her, she desired him “to leave said legacies to be paid after his death.” She further provided, that in case her husband did not survive her, “then after the payment of the above legacies,” she gave all the rest, residue and remainder of her estate both real and personal, to her four sisters, her brother and the, children of a deceased brother, in equal proportions, &c.

In October, 1899, Wilmot Johnson died leaving a last will that appears to have been executed a few days after the death of his wife. Inasmuch as the main questions now to be considered hinge upon the proper construction of its provisions we will cite here all of its disposing parts without curtailment; viz: “ Whereas under the will of my deceased wife, Margaret Schuyler Johnson, I hold a life estate in certain property named in said will, also in certain bonds of the Van Rensselaer Land Company, and in a lot of three acres situated at the corner of Bloomsbury lane and Rolling road, I hereby devise and bequeath all the said property and bonds to my nephew, Walter V. R. Berry, in trust to carry out the provisions of said will of my wife, Margaret Schuyler Johnson, as regards certain legacies contained therein as follows : ¹⁵⁵ “The said legacies amounting to $26,000, being the amount I hold of said bonds. “The residue and remainder of said property I give and bequeath to my nephew, Walter V. R. Berry, together with my personal estate, which I desire to be sold, one-half of the proceeds of the same I give, bequeath and devise to the said Walter Berry, and the balance to be divided between my nephews, William Bayard Van Rensselaer, Howard Van R. Howard Townsend, Stephen V. R. Townsend, in equal parts one-fourth to each.” It is agreed between the parties that the “ land records of Baltimore County do not disclose the title to any landed property in Baltimore County in the name of Margaret Schuyler Johnson, and that the said land records disclose that the only property standing in the name of Wilmot Johnson on said records is the lot of ground described in the deed from Lurman to him referred to in the agreed statement of facts of which this is a part.” It was further agreed that Theodore G. Lurman together with his wife on the i-8th June, 1897, conveyed a tract of land in Baltimore County to Wilmot Johnson and that “ the land referred to in the bill of complaint is a part of the land described in that deed.” The first parcel of land conveyed by the Lurman deed, which is fully set out in the record, is described to contain three and sixty-four one hundredths acres, situate on the western side of Bloomsbury lane; the other parcel being the easternmost half of the bed of Mellors avenue as far as the land above described extends subject to certain rights of way and drainage. From this ¹⁵⁶ statement of facts it is clear that Mrs. Johnson at the time of her death owned no land situate in Baltimore County and that Mr. Johnson about a month prior to her decease became seised and possessed of a lot situate in that county along Bloomsbury lane containing between three and four acres. It is also clear that Mr. Johnson did not hold the “ lot of three acres ” mentioned under the will of his deceased wife ; and therefore did not and could not have intended to be understood as carrying out the wishes of his wife as expressed in her will when he included the lot in the first clause of his will, wherein he merely states of what property he proposed to dispose.

He must have known at the’time he made his will, that his wife ha.d no real property situate in Baltimore County, and when it is borne in mind that the deed to him from Lurman conveying the three-acre lot was executed on the 18th June, 1897, and his own will was executed on the 30th day of September, 1897, a little more than three months afterwards, it is not reasonable to suppose that he had forgotten that he and not his wife was the owner of the lot. The dispositions of his will .moreover show that no such misapprehension possessed him. The bonds of the Van Rensselaer Land Company comprised the whole of Mrs. Johnson’s property of which we have any information. These are all disposed’ of by Mr. Johnson to the sisters and brothers, nephew or niece of his wife, and these are persons'to whom Mrs’.

Johnson by the third clabse of her will authorized him to dispose of her property. If the three-acre lot had been a part of her property which passed to him under the will of his wife, he would have no power to dispose of it otherwise than in accordance with the provisions of the third clause of her will, and the fact that he has made no attempt to bestow it upon any one who belonged to the class mentioned in said clause, makes it reasonably clear that he did not regard it as within the trust imposed upon him by her will. But apart from this the language of the will itself shows wha’t Mr. Johnson meant. He says “whereas under the will of my deceased wife, Margaret Schuyler Johnson, I hold a life estate in certain property named in said will, also in certain ¹⁵⁷ bonds of the Van Rensselaer Land Company, &c.” Later on he states what he meant