majority">•Stewart, J.,

delivered the opinion of the court.

The will of Francis J. Mitchell creates a conditional limitation of the estate involved in this litigation, depending upon the occurrence of the event provided for in the will. It was urged by the counsel for the respondent, that a Court of Equity ought not to aid in enforcing a penalty or forfeiture, and that the demand of the complainant was of that description. We have said, this devise is a conditional limitation — as such, a Court of Equity is bound to regard it, as well as a court of law.

*593“ The general rule, that a Court of Equity never-enforces a forfeiture, has not been applied to cases of conditional limitation. It applies to penalties and forfeitures absolute and certain.” Gough v. Manning, 26 Md. 361.

James D. Mitchell, the original trustee under the will, to whom the legal estate was devised in trust, having died in the year 1837, the estate, bound by the trust, created by the will, devolved upon Sarah E. Mitchell, his heir at law, who thus held the property until the determination of her legal estate, in the year 1847, when, by the limitation of the will, it vested in Henry S. Mitchell, the survivor of Francis — the contingency limited in the will having happened. At this period, Henry S. Mitchell was entitled to the legal estate — *Mitchell v. Mitchell, 18 Md. 405 — but did not recover from her the actual possession of the property until October, 1862, after the decision of this court in favor of his title in the action of ejectment instituted by him in May, 1857. He was also entitled to the income thereof, with any accumulated surplus that had accrued therefrom, subject to the trust in the will, to wit: the annual payment of two hundred dollars to his sister Sarah, during her life. Her right to this annuity is not made, by the will, dependent upon the sufficiency of the rents and profits to pay it, year by year, but is absolute. The annuity is made a charge on the corpus, as well as on the accumulated fund provided for in the will. But as this bill was not filed until the year 1854, and for the surplus rents and profits which had accrued, not only up to' the year 1847, but to the filing of the bill, the respondent insists that the complainant has no good and valid claim, owing to the lapse of time, and that if he have any demand whatever, certainly not to the extent of the decree below ratifying the action of the special auditor. We do not think, under the peculiar circumstances attending her possession of the property, that either limitation or lapse of time is a bar to a recovery in this suit. Sarah E. Mitchell having held the possession, as trustee, until the year 1847, when her legal estate, as such trustee, ceased, cannot be permitted, upon any principle of justice, to set up her possession, as trustee, to defeat the claim of her cestui que trust to an account of the rents and profits accruing up to that period. Her continued occupancy of the property after that was not, under the circumstances of thq case, that of a trespasser merely. She *594continued to hold under claim of right, and insisted that, by the provisions of the will, the legal estate was still in her, and thereafter, she became her own trustee to the extent of her annuity, and, by consequence, the trustee also of the complainant as to the surplus rents. Her holding under such claim of right cannot be regarded as that of a mere trespasser, and, in our judgment, renders her accountable in equity for *rents and profits so long as she so continued in possession of the property. This can impose no hardship upon the respondent, and is but simple justice to those legally and beneficially interested.

We think the jurisdiction of the court, tested by the averments of the bill, and the facts in the cause, beyond all reasonable controversy, and that a case is disclosed demanding relief. But we are not prepared to endorse the correctness of the account of the auditor. He reports that, from the testimony on each side, he has charged the respondent with rents received or contracted for, deducting the annuity, taxes and insurance. The report is not objectionable on this account, and no exception was taken thereto in this particular, and we have no evidence before us that the respondent has been, in this respect, overcharged. But the auditor’s account does not give her credit for the two hundred dollars annuity, nor for years, where the rents and profits did not amount to that much.

The respondent was entitled to the annuity without abatement, as a charge upon the estate, whether the income therefrom was sufficient or not, to pay it. 'She should be charged with the rents and interests thereon, deducting her annuity, insurance and taxes whilst she had possession of the property; and be allowed for her annuity after the complainant had possession, which has not been done by the report. Whatever sum may be found due upon such statement of the account, should be decreed to be paid by her, with the interest on the principal of the debt; and, until paid, the complainant should be allowed to retain the future annuities of the respondent, and to apply the same, annually accruing, towards the payment of the indebtedness of the respondent until its discharge. The decree below will be reversed and the cause remanded to that court for such proceeding and decree as shall be in conformity with the views herein expressed.

, Decree reversed with costs and cause remanded.

Citation profile

Relationships

How this case has been treated — in progress