Barnett v. Dickinson

48 A. 838, 93 Md. 258, 1901 Md. LEXIS 28

• Court: Court of Appeals of Maryland
• Decided: April 10, 1901
• Status: Published

Opinion

Briscoe, J.,

delivered the opinion of the Court.

The appeal in this case is taken from an order of the Circuit Court of Baltimore City, passed on the 15th day of March, 1900, and involves a construction of the last will and testament of John S. Dickinson, of that city. Mr. Dickinson died on the 27th of February, 1891, and his will was duly admitted to probate in the Orphans’ Court of Baltimore City. By his will dated the 5th of July, 1879, he devised and bequeathed all of his property and effects, of every kind, real and personal to the Safe Deposit and Trust Company of Baltimore, in trust for certain purposes fully set out in the will.

The will contains the following clause: “The Safe Deposit and Trust Company of Baltimore shall in the first place, and in priority over all other bequests and devises made in this will, pay off and cancel a mortgage nowr existing on my house and lot on Saint Paul street, in the city of Baltimore, where I now reside, and known as number 299, and all incumbrances of any kind binding the same which may in any manner arise or exist; and the said corporation shall permit the said house and lot, together with all the furniture, personal property and effects therein, to be used, occupied and possessed by my aunt, M. Matilda Dickinson, and my cousins, Maria W. Dick inson and Laura D. Dickinson, so long as they shall remain unmarried and shall choose to reside in the said house, and if any one or more of them shall marry or shall abandon the said house and cease to reside therein, then the said house and the furniture and the personal property and effects therein shall be for the use and occupancy of her or them who shall remain unmarried and shall choose and continue to use the said house as a residence. And I direct the said corporation to keep the said house in good and comfortable repair, and to pay all taxes, water-rents and assessments of every kind on the said house and lot so that the same may be a suitable and convenient home for my said aunt and cousins under the conditions above-named; and I direct the said corporation to pay to my aunt, M. Matilda Dickinson, and my cousins, Maria W. Dickinson and Laura D. Dickinson, the sum of three thousand dollars annually, to be paid in equal quarterly installments in advance, commencing from the time of my death, and the said payments are to be clear and free from inheritance tax and from all taxes and drawbacks of every kind whatsoever.

“The said annual sum of three thousand dollars is to be paid so long as they or any of them shall live and remain unmarried and continue to reside in the said .house ; but when any one or more of them shall marry or shall abandon the said house and shall cease to reside therein, then and in either of these events the said annnual sum of three thousand dollars is to be paid to the survivor or survivors of them or her who shall remain unmarried and who shall continue to reside in the said house. It being my purpose and object to provide a suitable home and maintenance for my said aunt and cousins dnring their lives and the life of the longest liver, if they choose to reside in the said house and remain unmarried. And after the death of my said aunt and my said cousins, or after they shall all marry or shall abandon the said house, and cease to reside in it, whichever of these events shall first happen, then I give, devise and bequeath the said house and lot and the sum of fifty thousand dollars to my sister, Amanda L. Barnett, her heirs, executors and administrators, forever, provided she shall be living at the time of my death; and I direct the said corporation, upon the happening of the events aforesaid, to pay her the said sum of fifty thousaid dollars, and to secure to her the fee-simple title of the said house and lot free from all charges, expenses and incumbrances, and clear and discharged of all trusts.”

On the 23rd of February, 1892, the Circuit Court of Baltimore assumed jurisdiction of the trust and the trustee was directed by a decree to administer the trusts mentioned in the testator’s will, under the direction of the Court. On the 7th of July, 1898, Amanda L. Barnett, the appellant, and a sister of the testator, filed a petition in the Circuit Court of Baltimore City stating among other things that M. Matilda Dickinson, the aunt of the testator, departed this life in the year 1881 ; that Maria W. Dickinson, one of the testator’s cousins had intermarried in March, 1895, with Judge John A. Aiken, of Mass., and that Laura D. Dickinson had abandoned the house on St. Paul street, and had ceased to reside therein and to occupy it as her residence and in fact resided elsewhere. The prayer of the petition is that the Safe Deposit and Trust Company of Baltimore, may be directed to convey the house and lot on St. Paul street to the petitioner and to pay her the sum of fifty thousand dollars, according to the terms and provisions of the testator’s will,

This, petition was answered by Laura D. Dickinson and the Safe Deposit and Trust Company of Baltimore on the 9th of September, 1900, admitting the death of M. Matilda Dickinson and the marriage of Maria W. Dickinson, as alleged, but denying the allegation of fact that Laura D. Dickinson had abandoned the house on St. Paul street as a residence or had ceased to reside therein. Miss Dickinson’s answer contains the following averment on this subject: “that she never has abandoned.the said house No. 1125 St. Paul street, in the city of Baltimore, nor has she ever ceased to reside in it or to occupy the said house, as her residence, and never has, in fact, resided elsewhere; that she has always chosen since the death of the testator to reside in the said house and still chooses to do so ;■ that during the last years of the testator’s life it has been the custom of the family, consisting of himself and the said Maria W. Dickinson and this respondent, to be absent from the city from six to eight weeks during the summer months. Since the death of the testator, the sisters, Maria W. and Laura D., this respondent, followed for a while the custom of the family in their summer absences and afterwards in brief autumn visits to their aunt in Massachusetts, and being in delicate health, under medical advice, your respondent has been compelled to be absent from the city from time to time temporarily but never for any prolonged period or with the intention of abandoning in any way the occupation of the house aforesaid, as her residence.

“The longest period of her absence from her home was under the advice of Dr. Reed, of Philadelphia, which was spent at Clifton Springs Sanitarium, and after returning to the St. Paul street residence, she was compelled to go to Lakewood in the care of trained nurse in 1896. She was subsequently compelled to return to the Clifton Springs until December 1st, 1897, when she returned to Baltimore. Dr. Lichty of the Sanitarium, advised her not to resume the active housekeeping in the St. Paul street residence immediately,on her return to Baltimore, as the responsibility for such necessary care, would, in the delicate condition of her health at that time be unfavorable to her recovery. During all the time, since her sister’s marriage in March, 1895, this respondent has at no time had any intention of abandoning her home or residence at No. 1125 St. Paul street. Her absences, temporary in character, have been solely for recreation and for her impaired health, and by the advice of physicians. She has never made any statements indicating an intention to take up her abode or residence elsewhere, for she never entertained such intention. Since March, 1895, this respondent although temporarily and at intervals absent on account of ill health or because of the heat of the city, has retained in her service one or more of the family servants. An old and faithful colored man, who has been in the employ of the family for twenty-five or thirty years, has, all the. time, had the care of the house, No. 1125 St. Paul street, and a colored woman servant, long in the employ of the family, was in charge of the house the whole of the last winter. The household furniture and furnishings, even the family silver, have remained in the house in their usual positions and condition, except as their preservation and safety from time to time required some slight changes. The respondent’s clothing, except such apparel as she needed in her visitings elsewhere, has remained in the house for use on her return. During the last winter the house was kept warm during the cold spells and she was there often to look after it.”

Now there can be no doubt as to the testator’s intention, in providing for his aunt and cousins under tfie will. This is clearly declared by the following language of the will itself, “It being my purpose and object to provide a suitable home and maintenance for my aunt and cousins during their lives and the life of the longest liver, if they choose to reside in the house and remain unmarried”. And he also directed that the sum of three thousand dollars' was to be paid by his trustee, as an annuity so long as they or any of them shall live and remain unmarried and continue to reside in the house, but after they shall marry or shall abandon the house and cease to reside in it, then it is given to his sister, the petitioner in the case.

The petition alleges, and the answers admit, that-the aunt, M. Matilda Dickinson is dead, and that the cousin, Maria W. Dickinson has intermarried since the death of the testator. The sole question, then, in the case is whether Laura D. Dickinson, one of the appellees, has abandoned the St. Paul street house as a residence, and thereby forfeited all her interest under her uncle’s will.

Abandonment is defined to be a relinquishment or surrender of rights or property by one person to another, and includes both the intention to abandon and the external act by which the intention is carried into effect. • Amer and English Ency. of Law, vol. 1, page 1. In Judson v. Mallory, 40 Cal. 299, it is held, that to constitute an abandonment there must be concurrence of the intention to abandon and the actual relinquishment of the property, so that it may be appropriated by the next comer. And in Vogler v. Geiss, 51 Md. 410, this Court said, while a mere declaration of an intention to abandon will not alone be sufficient, the question whether the act of the party entitled to the easement amounts to an abandonment or not, depends upon the intention with which it was done.

(Decided April 10th, 1901.)

We have carefully examined the record in this case and find nothing that indicates an intention upon the part of Miss Dickinson to abandon the St. Paul street house and cease to reside in it. On the contrary, it is very obvious from the evidence, that she did not intend to abandon it as a residence nor surrender it as a place of abode.. Her absence from the house was always temporary in character and with an intention to return. It was generally in consequence of her physical condition and by medical advice, to regain her health. It also appears that during her absence from the house, she kept her clothing and other personal effects on the premises. Her servants were also in charge of the house in her absence, as when she was living therein. We therefore fully concur in the conclusion reached by the Circuit Court of Baltimore City, in this case, and for the reasons we have given, its order of the 15th of March, 1900, dismissing the appellant’s petition will be affirmed.

Order affirmed with costs.