West v. Biscoe

6 H. & J. 460

• Court: Court of Appeals of Maryland
• Decided: June 15, 1825
• Status: Published

Opinion

Earle, J.

delivered the opinion of the court. The deed of trust from Hannah West to William Beanes, contains a settlement of her landed estate on her family, and is tQ be expounded most favourably to promote and effectuate her intentions. It is a deed of bargain and sale, and the uses raised thereby are not operated upon by the statute of uses, further than to vest the legal estate in fee in William Beanes, subject to the trusts therein mentioned, which arc ail executory. The chief object of the settlement is to preserve the estate to her sons, and their children, and to transmit it to the. latter unincumbered with debts. Next to this in importance is the provision for securing the payment by her sons to her granddaughters, of portions of £300 éach, payable when they shall arrive át 16 years of age, of tearry. Both these objects are intended to be answered through the instrumentality of the trust estate^ by conveying the lands to the trustee, and his heirs, to hold the same in moieties for the use of her sons, Slephén West and Richard IV. West5 provided that they shall, before they receive any benefit or interest under the trust, pay, or cause to be paid, or secure to be paid, five hundred pounds current money to each of the granddaughters, Maria Oden. and Hannah Oden, at their arrival at the age of sixteen years, or day of marriage, which shall first happen. At the time of the settlement Hannah W est was an old woman, but having lived to a very advanced age, she unexpectedly to herself outlived her granddaughter Hannah Oden, who arrived at the age of 16 in the spring of 1812, married the complainant, George W. Biscoe, in the fall of that year, and died the succeeding fall. Hannah W1st departed this life in 1815, and her sons, Stephen West and Richard W. West, immediately after took possession of her landed estate, and have continually enjoyed it since, without having paid, or secured to be paid to their nieCe, Hannah Oden, or her representatives, the portion of ¿2500, or any part of it. In 1818 George W. Biscoe, the surviving husband, filed his bill in Prince-George’s county court, on the equity side thereof, against William Beanes, the trustee, and the sons Stephen. West and Richard W. West; id enforce the execution of the trust, and to compel the .said Stephen West and Richard W. West to pay to the complainánt the portion thus given to his deceased wife. The facts of the bill are not denied by the answers of the trustee, and Richard Wt West, and they' are taken pro confesso against Stephen West for the want of an answer. The chancery jurisdiction beloW decreed á dismissal of the bill as to the trustee; and a payrhent of the portion, with interest by Stephen WTest and Richard W. West, considering them under a personal obligation in equity to'pay it. This decree this court have to revise and decide upon, ahd particularly they have to decide; whether it can be sustained as an adjudication in personam.

The court have reflected maturely ort this case; and have examined all the authorities within their reach, that havfe any bearing upon it. That the portion claimed is a charge in equity upon the estate conveyed in trust, we have no question; although the grantor has not in express terms made it so, The clause directing it to be paid, or secured to be' paid, before her Sons entered upon the beneficial Use of the estate, was evidently introduced in favour of her granddaughter; to accelerate the payment to her, and strongly implies a charge «port tlie estate; and particularly in the event of the sons refusing to accept it, on the ground of its .insufficiency to páy the portion; That the clause is to be viewed in this light, is amply proved by the authorities, and more especially by the casé of Wallis vs. Crimes, to be found in 1 Cases in Chan. 89; which, as to this point, may be considered a parallel case, and will therefore be circumstantially adverted to. The father of Sir George Crimes conveyed his estate to trustees in fee; upon the trusty that if Sir 'George, within six months after his father’s' death, secured to the trustees £500 for the benefit of Sir George’s younger children, then (after such security first given to the trustees) to convey the premises to Sir George and his heirs; and until the time limited 'for giving the security, the trustees to stand seized to the use of Sir George’s eldest son, (Sir Thomas Crimes,) for his mainlenance; and in default of such security; the trustees, at the request of Sir George’s eldest son, to convey to him. Without giving the security, or in any way respecting the trust. Sir George entered upon the estate, and considering it .as, bis absolute property, demised it for a long term of years,’ by way of mortgage, to secure the payment of a sum of money, and died. The executors of the mortgagee exhibited their bill against Sir Thomas Crimes, and the trustees, to enforce a redemption, or to hold discharged of equity, and the court of chancery decreed, upon a view of all the facts, including the conveyance in trust, that the executors hold and enjoy the premises as a security of the mortgage money and interest, against the defendants, and all claiming under them, charged with the £500 to dir George Crimes's younger children, from the time the plaintiff came into possession, unless the defendant, Sir Thomas Crimes, should pay the mortgage money and interest, by a given day. Upon a bill of review, Lord Keeper Bridgemun refused to reverse the decree, and declared he looked upon the condition precedent to be in the nature of a penalty, and that he would regard the intent of the trust, which was to secure the £500 to the younger children.

If the portion claimed by the surviving husband is thus a charge upon the land, is he constrained to follow it in the bands of the trustee; and is he, without remedy in equity against Stephen West and Richard W. West, on their personal obligation to pay itih

We have to confess, that we should-regret to find- ourselves under the necessity of answering either branch of this proposition in the affirmative, lor we verily think, the appellants are bound in conscience to fulfil the wishes of their aged parent, and to pay this portion, according to her intentions, unequivocally expressed in the settlement. "We do not, however, feel ourselves under any such necessity, entertaining decidedly as we do the opinion, that the proceeding in personam? and the decree thereon, may in the particular circumstances of this case be sustained on •the strictest principles of equity. The legal estate in the. lands of Hannah West, is by the deed vested in the trustee, who holds them for the use of Stephen West and Richard W. West, which use (distinguished in the trust deed by the epithets “benefit, estate, interest,") they were not to enjoy under the trust, until they had paid, or secured to be paid, the portion in controversy. They nevertheless, wholly unmindful of the terms of the settlement, entered as before mentioned into the possession and enjoyment of the granted premises, and had the use of them, and the actual pernancy of the profits, for several years hefore.the bill exhibited, and from thence arises, as think, their personal responsibility to pay the portion sued for by the appellee.

If Stephen West and Richard W. West had refused to accept the, grant upon the terms, of the settlement, i.t would haye become the duty of the trustee to interpose, to secure the granddaughters portion, as it was perhaps his duty, to see the portion paid, or secured to be paid by them, before he permitted the enjoyment of the use. They did not, however, refuse, the grant, but on the contrary accepted it, by taking possession of the estate, and enjoying-the rise;, and they thereby admitted its adequacy to pay the portion of the granddaughter. This brings the case within the reason, of. the case of The Attorney General vs. Christ’s Hospital, reported in 3 Brown’s Reports, 165, although that case should be said not t.o agree in all its facts with this'. The condition there, was to be performed, sitbse-. quent to the. acceptance of the devise, whereas it. is objected here, that the condition is precedent, and that the. interest did, not vest until the condition was performed.

However this'objection might, have availed, if Stephen West and Richard W- West bad refused to accept the grant upon the terms of the settlement, it can have no influence on the present decision, when it is considered, that they have bad for years the possession of the estate, and the full enjoyment of the -use, in the same manner, and precisely as if they had performed the condition by paying, or securing tobe paid, the granddaughter’s portion* Instead of paying and possessing, they have chosen to possess without paying; and surely it cannot but be in accordance with the best, principles of equity jurisprudence, to compel them to pay. The possession of the devised property bound Christ, Hospital to a performance, of. the condition annexed to the devise; and in like manner, the possession and enjoyment of Stephen West and Richard W. West, of the use' designed for them, should bind them to. a performance of .the condition, which ought to have been per--, formed, precedent to their possession. The distinction between those two kinds of conditions, as to relief, is more., over trifling, if not nominal, where the ca.se lies in compensation, as this unquestionably does. See Francis’s Maxims, 49. 1 Fonbl. 211, 218, and the cases there cited» After the nay oi payment, the acceptance of compensation may be enforced, ‘to vest the estate in the party 'not performing, and on principles of reciprocity he should be coerced to make compensation, where by his own act he becomes possessed, of, and lias the fruition of the estate.

The opinion that the appellants are under a personal obligation to pay the portion of Hannah Oden, to. her husband aud representative, receives strength, we think, from, other considerations, They have fully admitted the sufficiency of tire granted premises to pay the portion, but the admission does not make it so, nor does it in any mannee appear that it is so. If it is inadequate, the rents and profits must supply the deficiency, and as they have been the receivers for years, they have made themselves personally liable to pay it. These receipts are too within purview of the bill, which charges that Stephen West and Richard W,! West accepted the grant, and possessed themselves of the granted premises, and have, had the enjoyment of them, and prays that they may be compelled to pay. Again, if they had performed the condition, by securing the portion to be paid to Hannah Oden, on her arrival at the age of 1G, or day of marriage, which should first happen, they would have incurred a personal responsibility within the contemplation of the settlement; and it seeips consonant to justice, that they should be exposed to a like liability, by voluntarily placing themselves in the same situation, and taking to themselves the same enjoyments, as if they had performed the condition. The decree below we think right, aud therefore we affirm it,

DECREE AFFIRMED,