Bryan, J.,
delivered the opinion of the Court.
This is an appeal from the decree of a Court of Equity. The cause was heard in the Court below on bill and answer, and of course the statements in the answer are admitted to be true. The facts are as follows: Edward Hyatt was seized and possessed for life of a house and lot on Cathedral street in the city of Baltimore, with remainder in fee to his daughter and only child, Amy H. Vanneck, the wife of John T. Vanneck. The property was sold for twenty-five thousand dollars; the deed was executed by Hyatt and' his daughter and her husband; and the money was paid into the hands of Hyatt by the attorney of the purchaser. The money was’ deposited in bank by Hyatt and in a very short time afterwards he invested of this amount seventeen thousand eight hundred and four dollars and ninety-two cents in five ground rents in the city of Baltimore, and in five coupon bonds of the Toledo Electric Street Railway Company. He also expended four thousand dollars in paying off a ground rent on a leasehold lot of ground on Franklin street in the city of Baltimore, which belonged to him, and two thousand dollars in making repairs and improvements on a dwelling house situated on the same lot. He paid six hundred and twenty-five dollars to a broker for negotiating the sale of the Cathedral street house [473] and lot and fifty-nine dollars and seventeen cents for the examination of the titles to the ground rents and for recording the deeds which conveyed them. The money from the sale of the house and lot was received by Hyatt on the twenty-eighth of November, eighteen hundred and ninety-two, and all these expenditures were made before the end of January, eighteen hundred and ninety-three. In fact, with the exception of about two thousand dollars, all of them were made before the fifth of January. In May, eighteen hundred and ninety-three, Hyatt intermarried with Charlotte, one of the defendants below. In November of the same year by suitable deeds he caused to be conveyed to her the fee-simple in the house and.lot on which the six thousand dollars had been expended. He died in November, eighteen hundred and ninety-four, having in the previous December duly made his last will and testament. By it he devised to his daughter, Amy Vanneck, the five ground rents above mentioned, with certain limitations over in case she should die without leaving issue or descendants surviving her. He also gave to a trustee, for the use of his wife, fifty shares of the Sherwood Distilling Company, and seventeen shares of the same stock for the use of his daughter, stating that he had already given her thirty-three shares of the stock and he wished to equalize their holdings. He also gave to his wife and daughter in equal shares the money due to him by the Sherwood Distilling Company. He gave his wife and daughter other legacies of small value, and he then gave all the rest and residue of his property of every kind and description to them equally to be divided between them. After his death Mrs. Vanneck obtained a decree in equity against Mrs. Hyatt, ordering the sale of the Franklin street house and lot for the payment of the six thousand dollars, parcel of the twenty-five thousand dollars, which had been invested in it. This sum was paid to her by Mrs. Hyatt. Mrs. Vanneck filed this bill of complaint against Mrs. Hyatt and the executors of the will of Edward Hyatt; she contended that it was the bounden duty of her father to invest the twenty-five thou[474] sand dollars received from the sale of the Cathedral street house for himself for life, with remainder to her absolutely ; -and that because of his failure to do so before his death, she became his creditor for that amount, and that she is entitled to recover from his executors the balance of this sum remaining unpaid with interest from the date of his de,ath after deducting six thousand dollars paid by Mrs. Hyatt. In the argument at the bar, her counsel earnestly insisted that his disposition of the money was a breach of trust on his part.
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Bryan, J.,
delivered the opinion of the Court.
This is an appeal from the decree of a Court of Equity. The cause was heard in the Court below on bill and answer, and of course the statements in the answer are admitted to be true. The facts are as follows: Edward Hyatt was seized and possessed for life of a house and lot on Cathedral street in the city of Baltimore, with remainder in fee to his daughter and only child, Amy H. Vanneck, the wife of John T. Vanneck. The property was sold for twenty-five thousand dollars; the deed was executed by Hyatt and' his daughter and her husband; and the money was paid into the hands of Hyatt by the attorney of the purchaser. The money was’ deposited in bank by Hyatt and in a very short time afterwards he invested of this amount seventeen thousand eight hundred and four dollars and ninety-two cents in five ground rents in the city of Baltimore, and in five coupon bonds of the Toledo Electric Street Railway Company. He also expended four thousand dollars in paying off a ground rent on a leasehold lot of ground on Franklin street in the city of Baltimore, which belonged to him, and two thousand dollars in making repairs and improvements on a dwelling house situated on the same lot. He paid six hundred and twenty-five dollars to a broker for negotiating the sale of the Cathedral street house [473] and lot and fifty-nine dollars and seventeen cents for the examination of the titles to the ground rents and for recording the deeds which conveyed them. The money from the sale of the house and lot was received by Hyatt on the twenty-eighth of November, eighteen hundred and ninety-two, and all these expenditures were made before the end of January, eighteen hundred and ninety-three. In fact, with the exception of about two thousand dollars, all of them were made before the fifth of January. In May, eighteen hundred and ninety-three, Hyatt intermarried with Charlotte, one of the defendants below. In November of the same year by suitable deeds he caused to be conveyed to her the fee-simple in the house and.lot on which the six thousand dollars had been expended. He died in November, eighteen hundred and ninety-four, having in the previous December duly made his last will and testament. By it he devised to his daughter, Amy Vanneck, the five ground rents above mentioned, with certain limitations over in case she should die without leaving issue or descendants surviving her. He also gave to a trustee, for the use of his wife, fifty shares of the Sherwood Distilling Company, and seventeen shares of the same stock for the use of his daughter, stating that he had already given her thirty-three shares of the stock and he wished to equalize their holdings. He also gave to his wife and daughter in equal shares the money due to him by the Sherwood Distilling Company. He gave his wife and daughter other legacies of small value, and he then gave all the rest and residue of his property of every kind and description to them equally to be divided between them. After his death Mrs. Vanneck obtained a decree in equity against Mrs. Hyatt, ordering the sale of the Franklin street house and lot for the payment of the six thousand dollars, parcel of the twenty-five thousand dollars, which had been invested in it. This sum was paid to her by Mrs. Hyatt. Mrs. Vanneck filed this bill of complaint against Mrs. Hyatt and the executors of the will of Edward Hyatt; she contended that it was the bounden duty of her father to invest the twenty-five thou[474] sand dollars received from the sale of the Cathedral street house for himself for life, with remainder to her absolutely ; -and that because of his failure to do so before his death, she became his creditor for that amount, and that she is entitled to recover from his executors the balance of this sum remaining unpaid with interest from the date of his de,ath after deducting six thousand dollars paid by Mrs. Hyatt. In the argument at the bar, her counsel earnestly insisted that his disposition of the money was a breach of trust on his part.
By virtue of the provisions of Article 16, section 198, of the Code, either Hyatt the life-tenant, or Mrs. Vanneck the party in remainder, could have obtained from a Court of Equity a decree for the sale of the Cathedral street property, and an investment of the proceeds of sale under the sanction of the Court, for the benefit of the owners according‘to their several interests. This course was not adopted; on the contrary they joined in a deed conveying the property to a purchaser. The purchase money was paid to Hyatt. The deed is not exhibited in the record, but it is beyond question that the receipt of the purchase money by Hyatt was by the knowledge, consent -and acquiescence of his daughter. The attorney for the purchaser was an able and experienced lawyer, and no one could suppose that he would have permitted his client to pay twenty-five thousand dollars to a person not authorized to receive it and to give a legal acquittance for the payment. It is not, however, alleged in the bill that Mrs. Van-neck did not consent that Hyatt should receive the money nor is it alleged that she did not know in what manner he invested it. It is alleged that it was his duty to invest it for the benefit of himself for life, with remainder to his daughter. It might be assumed that no man of ordinary intelligence would keep the money lying uninvested and unproductive. He did invest it. As a matter of course the investment was the property of those who owned the fund according to the due proportions of their interests. This [475] ownership was not defeated nor impaired by the circumstance that her name did not appear in the deeds and coupon bonds which represented the investment. It is alleged that Hyatt became a debtor to his daughter in consequence of this transaction. Blackstone says that “ the legal acceptation oí debt is a sum of money due by certain and express agreement.” 3 Blackstone Commentaries, 154. Such an agreement does not appear on this record. But, however, if Hyatt was guilty of tortious conduct injuriously affecting the rights of his daughter, she would necessarily be entitled to redress in some form of proceeding against his executors. We will, therefore, consider this aspect of the case. It is not alleged that he made the investment in a negligent or injudicious manner. A portion of the fund was invested in ground rents in the city of Baltimore. These, when well secured, are considered the safest and most desirable means of producing income. We have no knowledge of the value of the coupon bonds. But it is not alleged that either they or the ground rents were not worth the amounts of money paid for them. Neither is it alleged that Hyatt concealed or fraudulently sought to conceal from his daughter the particulars of the investments; nor even that they were made without her knowledge and acquiescence. Beyond question, she now has full and perfect knowledge on the subject, and if she wishes to do so she has it in her power to claim them, and likewise the portion of the money which remains uninvested. It would be unjust to allow her to claim anything more on this account; unless she could show that in taking these investments she would sustain loss through some fraud, negligence or mismanagement on the part of her father. If they are equal in value to the price paid for them she cannot sustain the smallest loss or injury. The right to invest the money is admitted in the bill of complaint; but the mode of the investment is impeached for the reason, to-wit, that Mrs. Vanneck’s name was not used in making it. In onr opinion there is not the slightest circumstance to show any [476] fraud, evil practice, negligence or want, of judgment on the part of Hyatt in this transaction; and we do not think that for any other reason shown in this case his daughter has any right of reclamation against his executors. Before we leave this subject, as a matter of justice to Mr. Hyatt, we must recall thé fact that Mrs. Vanneck was his only child, and at the time of the occurrences above mentioned, he was a widower; it is very reasonable, therefore, to suppose that he contemplated the probability that she would at his death come into the possession of much the greater part of his property, and that he considered it a matter of the smallest consequence whether her name appeared in the investments or not. If it should become desirable to change them, it would be a great deal more easy to do so if they were solely in his name; inasmuch as his daughter and her husband lived in Canada, and it would involve some inconvenience and delay to obtain the deeds and assignments necessary for making the change. It is more just to adopt this hypothesis than the contrary one that he intended to defraud his only child, for whom he made a liberal provision by his last will and testament being more than one-half of his entire property.
The testator gave to his daughter property which he knew to be hers with a limitation over in favor of other persons. In the residuary clause of his will he mingled property which he knew to be hers with other property not specifically disposed of and gave it in equal shares to his widow and daughter. He also gave his daughter the stock of the Sherwood Distilling Company and the debt due by it. Its value is not shown in the record, but it is evident from the language used that the testator placed a high estimate on it. So far as his intention is concerned nothing can be clearer than this; that he intended Mrs. Vanneck should have the provision made for her in his will and nothing more from his estate. It is not possible that he should have intended that, in addition to this provision, she should have the money derived from the sale of the Cathedral street property. In McElfresh v. [477] Schley, 2 Gill, 181, the law is declared as follows : “ From the earliest case on the subject, the rule is, that a man shall not take a benefit under a will, and at the same time defeat the provisions of the instrument. If he claims an interest under an instrument, he must give full effect to it, as far as he is able to do so. He cannot take what is devised to him, and, at the same time, what is devised to another, although, but for the will, it would be his; hence he is driven to his election to say which he will take.” And the same doctrine has been repeatedly stated in subsequent cases. The principle of election very appropriately applies to the claim made by the complainant. . The Court below passed a decree to the effect that the executors of Hyatt should pay her twenty-five thousand dollars, less broker’s commissions, amounting to six hundred and twenty-five dollars, with interest from the day of the death of the testator, after deducting the six thousand dollars paid to her by Mrs. Hyatt. We are obliged to reverse this decree. We hold that the complainant must elect whether she will take the ground rents and the five bonds of the Toledo Electric Street Railway Company, and the sum of five hundred and seventy dollars and eight cents with interest from the death of the testator, or, whether she will take the devises and legacies left to her by the will. The sum of money mentioned is the residue of the twenty7five thousand left after deducting the price of the investments, the six thousand dollars, the broker’s commissions and the cost of examining titles and recording deeds. And we shall require the complainant to make her election before the first Monday of April next, and file with the clerk of this Court an instrument of writing signed by herself and her husband or by her counsel, showing that she renounces either her devises and legacies, or her claim to the money received from the sale of the Cathedral street property.
(Decided January 31st, 1896.)
Decree reversed with costs above and below, and decree for election.