Magruder v. Peter

Martin, J.,

delivered the opinion of the court.

This action was instituted by the widow and children of David Peter, to recover the possession of the land mentioned in the declaration. (Here the Judge referred to the facts contained in the first bill of exceptions, ante 324-5.)

The declaration contains six counts—the first on the separate demise of Sarah Peter, the widow, for one undivided third part. The second, on the demise of James B. Beverly, and Jane, his wife, (who was a daughter of David Peter,) for one undivided seventh part, of the lands in the declara *328 tion mentioned: the third by Elizabeth Peter, (another daughter of David Peter,) by Sarah Peter, her mother, guardian and next friend, for one undivided seventh part: the fourth, fifth and sixth, on the separate demises of William C. Peter, George Hamilton Peter, and James Peter, (the sons of David Peter,) by their mother, guardian and next friend, each for five undivided equal twenty-one parts, the whole into twenty-one equal parts to be divided.

The jury found for the defendant on the first count, and' a general verdict for the plaintiff on all the other counts.

The first question that arises upon this statement, is the true construction of the will of David Peter, and the intention of the testator is to be collected from the will itself. By that instrument it appears the testator was in debt, and was desirous his debts should be speedily discharged, and in the second clause of the will he directs, “ the land on which Dolon lives, and all the personal property thereon, should be sold, and the proceeds applied to that purpose.”1 Having disposed of the land on which Dolon lived, he directs, “that in the general distribution of the residue of my: estate, in the division between my sons and daughters, my sons may receive in the proportion of five as to three.” It is perfectly clear, that the testator did not intend his children should take the land on which Dolon lived, as devi-' sees under his will, because he devised that land for a specific purpose, and gives to his children, only the residue of his estate, that shall remain after this land shall be taken out of it—no other interpretation can be given to the word residue, and there is nothing else in the will to which it can be applied.

It' has been contended, the legal estate in this land vested in Sarah Peter, under the first clause in the will, by which the testator declares, “it is my intention, that the proceeds of all my estate, shall be vested in my dear wife Sarah Peter, for the maintenance and ed ucation of my children;” and it has been said, that a devise of all the profits, or proceeds of land, is a devise of the land itself; because, where a *329 testator gives all the beneficial interests resulting from the land, it shall be presumed he meant to give the land. If this position is in general correct, it cannot govern this case. A devise of the profits of the land, does not ex vi termini, pass the land, but only affords evidence that it was the intention of the testator that it should pass. It cannot therefore apply, where a different intention is manifest on the face of the will. The intention of the testator in this case is not equivocal. It is clear and apparent, that the land mentioned in the second clause of the will, should be sold for the payment of his debts—that all the rest of his estate should be divided among his children, and the mother should be a trustee, to receive the proceeds to maintain and educate them—he never intended to vest the legal estate in the lands directed to be sold, either in his children or their mother.

It is to be observed, the second clause in the will directs the land to be sold, to pay the testator’s debts, but no person is appointed to execute that trust, and if one had been named, the will gives him a mere naked power to sell.

When and where the legal estate shall rest, when lands are devised to be sold for the payment of debts, seems to be a question not yet finally settled. The law books appear to be at variance upon the subject. By some, a distinction is recognized, between a devise of lands to be sold by executors, and a devise that executors shall sell land, &e.; others say, no such distinction exists. Vide 2 Thomas’ Co. Litt. 138, notes 1 and m. 3. Co. Litt. 25, (b.) Sugden on Powers, 102, 106, 108. Toller on Executors, 413, 414.

It is not necessary for us, in the decision of the case before us, to adopt either the one, or the other of those doctrines. It is said in Sugden on Powers, 167, “where a testator directs his estate to be sold, without declaring by whom the sale shall be made, if the fund be distributable by the executor, either for the payment of debts or legacies, he will take a power of sale, by implication. Sug. on Pow. 173, note 1. In Maryland, a different course has been gene *330 rally pursued, founded perhaps on an act of the Assembly, passed in 1785, ch. 72, by the fourth section-of which it is enacted, “if any person hath died or shall die, leaving real or personal estate, to be sold for the payment of debts, or other purposes, and shall not by will, or other instrument in writing, appoint a person or persons to sell or convey the said property, &c.—upon every such case, the chancellor shall have full power and authority, upon application on petition, from any person or persons interested in the sale of such property, to appoint such trustee or trustees, for the purpose of selling and conveying such property, and applying the money arising from the sale, to the purposes intended, as the chancellor shall in his discretion think proper.”

The legal estate in the lands mentioned in the second clause of the will, vested in the children of David Peter, as his heirs at law, liable to be divested upon a legal sale of that land under the 2d clause of the will, a compliance with the terms of sale, and payment of the purchase money.

David Peter left five children, and each was entitled to one undivided fifth part of the land in controversy. The question is then presented, if the plaintiff was entitled to recover in this action ?

The prayer in the first bill of exceptions being general, that the plaintiff was not entitled to recover, the court were correct in refusing to give the instruction to the jury, if he could recover on any one count in the declaration.

The second count is on the separate demise of Beverly and wife, for an undivided seventh part of all the land mentioned in the declaration. He was entitled, (in right of his wife,) to an undivided fifth part of the whole land—he therefore claims less than he was entitled to receive.

In ejectment, separate demises, from several lessors, may be laid in the declaration, and the plaintiff at the trial, may give in evidence the separate titles of the several lessors to separate parts of the premises in question, and recover ac *331 cordingly. Jackson vs. Lidey, 12 John. Rep. 185 . Jackson vs. Sample, 1 John. Cases, 231. Adams on Ejectment, 187. 6 Com. Dig. (Am. Ed.) 419.

A plaintiff in ejectment may recover less than he declares for, but cannot recover more: and he may declare for less than he is entitled to, and recover it; but it must consist of the same nature with that claimed. Denn vs. Purvis, 1 Burr. 326. 2 Phil. Evid. 170, 171. 2 Stark. Evid. 539. 2 Hayw. 150 , 222. Carroll vs. Norwood, 5 Harr, and John. 174. Benson vs. Musseter, 7 Harr, and John. 208.

We think the plaintiff was entitled to recover, on the second count, and the court were correct in refusing the instruction to the jury, as prayed for by the defendant, in the first bill of exceptions.

The second bill of exceptions contains two prayers on the part of the defendant; first, that the plaintiff was not entitled to recover, because the legal estate was vested in Sarah Peter ; and second, because he ought not to recover on the fourth count; those prayers the court also refused.

We have already expressed our opinion on the first prayer, as stated in this exception—that the legal estate did not vest in Sarah Peter, but in the children of David Peter, as his heirs at law, and thus far we concur with the court below, but we cannot agree wifh the court, that the plaintiff was entitled to recover on the fourth count.

In the argument of the cause, two objections are relied on by the counsel for the appellant, to this last opinion of the court. First, that the plaintiff has recovered more in this count, than William C. Peter, under whom he claims, was entitled to receive. Second, that the mother, as guardian and next friend, could not make a lease to try the title to this land.

The first of these objections is certainly fatal. From the authorities before referred to, the law will be found to be clearly settled, that although a plaintiff may declare for less than he can legally claim, he cannot declare for, and recover more than he is entitled to. William C. Peter, one of *332 the five heirs at law of his father, was entitled to one undivided fifth part of the lands in controversy—his lessee, or the lessee of his guardian, has been permitted to recover five undivided equal twenty-one parts, the whole in twenty-one equal parts to be divided, which is equal to one-fourth, and a small fraction of the whole lands claimed—this is error, for which the judgment must be reversed.

It is not necessary to enter into a full examination of the second objection, relied on by the counsel for the appellant, .that the plaintiff could not recover, on the lease made by the mother, guardian and next friend of William C. Peter.

Thé law seems to be fully established that guardians who have the lands of infants intrusted them, may make leases to try title, but this privilege is not extended to those guardians to whom belong the custody of the infants alone. In .all cases where a plaintiff in ejectment relies on a lease made by a guardian, it is necessary for him to prove at the trial, the legal appointment of the guardian, and that the ward was under age when the lease was made. Adams on Eject. 68. 2 Phil. Evid. 101, 102. 2 Stark. Evid. 521. 2 Selw. 516. It does not appear from this record, that any evidence was offered to prove these facts.

JUDGMENT REVERSED, AND PROCEDENDO AWARDED.