Dugan v. Hollins

Where the Court of Appeals in a former decision has construed a will, m reference to the title to certain property, and the same -will in reference to the same property, is brought up for construction upon the same questions, in another suit, the former decision will be adhered to, whether the judgment be technically %r\ estoppel or not, unless there is manifest error therein.

Appeal from the Circuit Court for Baltimore city. The bill, in this case, was filed by the appellant against the appellees, on the 7th of July 1855. The property in controversy in the case, is a certain house and lot in the city of Baltimore, and it is claimed by the appellant, under the twenty-fifth clause of the will of Cumberland Dugan, executed on the 5th of October 1832, and admitted to probate on the 4th of November 1836, and by the appellees under the twenty-eighth clause of the same will. The particular sections of this will having reference to this controversy, are the following: “Y. Item. — -I give, devise and bequeath to my said wife, Margaret Dugan, for and. during her natural life,, all those four three.story houses, adjoining each other, situate at and on the south-west corner of Market Space, often called Cumberland Row, and Water Street; the one on the comer fronting about twenty-five feet on the space or row, and the other three fronting on the south side of Water street. “XVI. Item. — I give, devise and bequeath to my son, Hammond Dugan, his heirs and assigns, the three-story brick house and lot, situate on Market Space, commonly called Cumberland Row, it being the second house in said row, that is, the reversion of the same after the death of his mother. “XXIV. Item. — I also devise to my said son, Frederick James Dugan, the reversion in fee-simple, after the death of my wife, who is to enjoy the rents, issues and profits of the same during her natural life, the house and lot designated by the number four, (No. 4,) situate on Market Space, on the west side thereof, and on the north side, and adjoining the property of the late Robert Stewart, the same being about twenty-five feet front by about sixty-five feet deep, and which is now occupied by Samuel Bickley, which said several pieces of property I devise to my said son, with my blessings and best wishes for his prosperity and happiness. “XXV. Item. — I give, devise and bequeath to my said son, Frederick James Dugan, his heirs and assigns, in trust for the uses hereinafter mentioned, the following property, that is to say, my three-story brick house and the lot, situate on Market <S'pace, or Cumberland Row, after the death of his mother, the same being the third house in said row, from the corner south of Water street, and on the south side of the house devised to his brother Hammond, the same lot being about twenty-five feet front and sixty-five feet deep; in trust for the use of Cumberland Dugan, the eldest son of the said Frederick James Dugan, to be conveyed to the said Cumberland Dugan, in fee-simple, on his attaining the age of twenty-one years. But during the period that shall elapse between the decease of my wife, and the arrival at said age of the said Cumberland Dugan, it is my will that my said son, Frederick James Dugan, his executors, administrators or assigns, shall take and receive, all and singular, the rents, issues and profits of the said house, and lot, to his own absolute use, and if my said grandson should die before he attains the age of twenty-one years, I then devise the said house and lot, with all the intervening profits, if any, to my said son Frederick James Dugan, forever. "X XVIII. Item. — I give, devise and bequeath to my friend Isaac McKim, his heirs and assigns, the following property, in trust for my grand-children hereafter named, as follows, that is to say, my three-story brick house and the lot on the west side of Market Space, or Cumberland Row, in the city of Baltimore, situate about thirty feet north of Pratt street, and between Baltzer Scheffer’s and George Naylor’s lots, it being a front of about twenty-seven feet on the said row, and extending westwardly for depth about sixty-five feet. And also tlie lot of ground in the rear of said lot, purchased by me from the late John O’Donnell. And also one other three-story brick house and the lot, on the said row or space, adjoining the property hereinbefore devised to ray son Frederick, the said lot being about twenty-five feet front and sixty-five feet deep; which several three pieces of property, I hereby devise to the use of my two grandsons, namely, Cumberland Dugan Hollins, son of my daughter Cordelia Margaret, and Cumberland Dugan Hollins, the son of my daughter Rebecca, their heirs and assigns, as tenants in common; to be conveyed to them by my said trustee when they respectively attain the age of twenty-one years; and in the mean time, in trust, to pay over the rents, issues and profits of the same, to my wife, during the term of her natural life, if she should live so long, and on the event of her death, before my said grand-children attain to the age of twenty-one years, respectively, then to pay over the rents, issues and profits thereof to my daughters Rebecca Hollins and Cordelia Margaret Hollins, equally. And in further trust to convey the same in fee-simple, should my said grandsons or either of them die before the said age of twenty-one, that is, one moiety to the use of my daughter Cordelia Margaret, in fee, if her said son should die before he attains to the’ said age, and the other moiety to the use of my daughter Rebecca, if her said son should die before he attains to the said age.” The last and residuary clause is as follows: “XXXII. Lastly. — All my lands in Baltimore county, of elsewhere, all my bank, road, insurance or other stocks, (except my Baltimore and Ohio Rail Road stock,) all my notes; bonds, mortgages, accounts or other evidences of debts or claims; belonging to me, also my wharf, commonly called ‘Dugan’s wharf,’ extending from the south Side of Dugan’s street, and running north to Pratt street, also one-half of my said wharf at the head of Pratt street, with all and singular my claims, rights and demands,- for damages appertaining to the same; also the reversion of the ten annual ground rents oil Dugan’s wharf; of about nine hundred dollars per annum; after the death of my wife; also all the grounds out of which the said rents issue; also all the rest; residue and remainder, of my estate; real, personal and mixed; I give, devise and bequeath to my four children, namely, Rebecca Hollins, Cordelia Margaret Hollins, Hammond Dugan and Frederick James Dugan, in the manner following, that is to say: one fourth of the said residue I devise to my said trustee, Isaac McKim, his heirs and assigns, in trust,- for the sole and separate use of my daughter Rebecca Hollins; one-fourth to my said trustee, in fee, for the use of my daughter Cordelia Margaret Hollins; the said two parts to be subject to the same limitations, uses and trusts; as are heretofore declared in respect to the other property devised to my said trustee, in trust, for my said daughters; and the remaining half of the said residue of my estate I devise to my sons Hammond Dugan and Frederick James Dugan, to them forever, to be equally divided; share and share alike. And finally, 1 declare this to be my last will and testament; fully expressing my wishes; without respect to any promises I may at any time have made, and without regard to any expectations that I may in any manner have created; And I do hereby constitute and appoint my beloved wife Margaret Dugan, executrix, my sons Hammond Dugan and Frederick James Dugan, and William McKim, who intermarried with my grand-daughter Margaret Hollins, executors of this my last will and testament.” The complainant is the son of Frederick James Dugan, mentioned in the 25th clause of this will, and was bom on the 27th of January 1830, and by his bill claims a conveyance of the property under that clause. The testator’s widow, Margaret Dugan, died on the 18th of June 1852. The defendants, Cumberland Dugan Hollins of Rebecca, and Cumberland Dugan Hollins of Cordelia, mentioned in the 28th clause of the will, oppose the relief prayed, and in their answers aver, that, in 1844, Daniel Coonan was in possession of the house and lot in dispute, as tenant, and a claim thereto having been set up for the complainant, under the said 25th clause, by Frederick James Dugan, his father and trustee, these defendants, in that year, brought an action of assumpsit in Baltimore county court, against ‘Coonan, fora quarter’s rent, which suit was docketed by consent, and Was defended for the purpose of trying the title to said house and lot, by said Frederick James Dugan, trustee as aforesaid, through his-counsel- that the case was, by appeal, brought to the Court of Appeals, and that court, after argument and full consideration, decided, that the said two -clauses of this will operated upon the same -property, and that the 28th -clause abrogated the 25th clause, under which the complainant claims, and the defendants rely upon that suit and judgment as a conclusive bar to the complainant’s claim. The case of Hollins vs. Coonan, referred to in the answers, is reported in 9 Gill, 62, and in that case there was an admission, by which “it was admitted by the parties, that this suit was instituted for the purpose of trying the title to the house and lot in the possession -of tbe defendant, as tenant of the testator,” which -house and lot .are then .described., and are the same as those claimed by the complainant in the present suit. Coonan testified, that he has occupied the property in question, as tenant, ever since the year 1839 or 1849, that he is the person against whom said suit was brought for a quarter’s rent thereof; that he was always in the habit -of paying his rent punctually, but this rent was not paid because he got notice not to pay it — he thinks from Mr. Scott — but witness did not employ Mr. Scott to defend the suit, and did not pay him any fees to do so; that the rent during .the pendency of the suit- was paid to Messrs. Campbell and Scott, counsel for the' respective parties, in the above mentioned case of Hollins vs. Coonan. By an agreement of counsel it was admitted, that the rent which accrued during the pendency of said suit, was paid to the respective counsel of the parties in that case, to await the' decision of the case, and, after its termination, the whole amount was paid over to the plaintiffs in the action. The case having been submitted for a decree, without argument, the court (Krebs, J.) passed a decree dismissing the bill, stating, that “it appears that the question in dispute has already been decided by the Court of Appeals, whereby the clause of the will, under which the complainant claims, was held to be abrogated by a subsequent clause therein.” From this decree the complainant appealed.