Follow
Perry Townsend's son was a Shoemaker, evidenced by entry in City Directory Baltimore, and confirms occupation as listed on MC of William and Caroline. There is no record at present of what Perry Townsend (1775) occupation was. It is possible he came from Connecticut, as he was married to Fanny Palmer who was born there. See profile for details.
Maryland State Archives
46 TOWNSHEND v. DUNCAN.
THIS bill was filed on the 17th of August, 1826, by Perry Towns-
hend and Anna Maria, his wife, against William J. B. Duncan, Caroline Duncan, who are infants, Joseph Robinson and Thomas Iglehart. The bill states, that William Duncan being seized and possessed of a considerable real and personal estate, on the 26th of December, 1818, made his last will, which, so far as concerns the matter in controversy, is as follows:
'I give and devise unto my daughter Caroline Duncan) and my son William Joseph Bend Duncan, the plantation whereon I now dwell, consisting of several tracts, or parts of tracts of land, one of which is called and known by the name of Burgess's Right, and part of a tract in two parcels, called Puddington's Harbour, otherwise called Puddington's Gift, being contiguous to each other, and containing, in the whole, two hundred twenty-nine and one- half acres, more or less, to them and their heirs forever, to be equally divided between them, share and share alike as joint tenants, and not as tenants in common. I give and bequeath to my daughter Anna Maria Duncan, the sum of sixty dollars, current money, as an annuity, to be paid to her out of the profits of my real estate above mentioned, annually for and during the term of her natural life, withholding from her, however, the power of sell- ing or transferring the above mentioned annual allowance to any person or persons whatever, under penalty of forfeiture. I do hereby constitute and appoint my dear wife Deborah Duncan, sole executrix of this my last will.'
The bill further states, that the testator, William Duncan, died, on or about the 25th of March, 1819, leaving those children, the plaintiff Anna Maria, by a first marriage, and the defendants Wil- liam and Caroline, both of whom were then and still are infants, wife Deborah, the legatees and devisees mentioned in his that the said Deborah administered and died; and that Thomas Iglehart took out letters, and was then the administrator de bonis non of the deceased; that the said Deborah, before her death, paid the plaintiff Anna Maria, one year's allowance after her father's death; and that Joseph Robinson, who had been appointed, and then was the guardian of the said infants, had also paid the plain- tiff Anna Maria, one year's allowance under the will of her father. But that the defendants had failed and refused to pay any more of the annuity to her, either before or since her intermarriage with the plaintiff Perry Townshend.
After which the bill concludes thus; to the end that justice may TOWNSHEND v. DUNCAN. 47
be done them, that an account may be had, that the said land may be sold; and under the direction of this court, the proceeds thereof applied to the payment of their annuity, with costs of suit; and the balance so invested as to stand an answerable fund to meet future instalments of said annuity; or that such other relief may be given to them as to the court may seem meet; and to the end that answers may be filed to all and singular the premises, to grant subpoenas, &c.
6th October, 1826.—BLAND, Chancellor.—The defendants Wil- liam J. B. Duncan and Caroline Duncan, and Joseph Robinson, having been returned summoned, and not having appeared, or filed their answers within the time allowed by the rules of the court, it is DECREED, that the plaintiffs are entitled to relief, but as it does not appear to what relief they are entitled, it is Ordered, that a commission issue to such person as the complainants may name to take testimony to ascertain to what they are entitled, (a)
The plaintiffs, by their petition, stated, that the defendant Thomas Iglehart, had died since the commencement of this suit; and that administration de bonis non upon the estate of the testator William Duncan, had been granted to John Iglehart. Whereupon they prayed that he might be accordingly summoned as a defen- dant, (b)
8th March, 1827.—BLAND, Chancellor.—Ordered, that the said
John Iglehart, be, and he is hereby made a party defendant, as
prayed; and he is hereby directed to be summoned accordingly, to
appear on the 10th day of April next; provided, that the summons
be served as the law requires, on or before the twentieth instant.
After which, John Iglehart having been summoned, and having failed to appear and answer, a decree was, on the 2Oth of ber, 1827, passed against him similar to that of the 6th of Decem- ber, 1826. Under which decrees a commission was issued, in execution and return of which, the commissioners said that the solicitor of the plaintiff had produced and filed a certified copy of the last will and testament of William Duncan, which together with the commission, he returned and filed, on the 31st of Decem-
(a) It is declared that wherever a subpoena shall be returned summoned, as to all or any of the defendants, making no distinction in favour of infant, the court must enter an interlocutory decree, &c, 1820, ch. 161, s, 1,—(6) 1820, ch, 161, s. 5. 48 TOWNSHEND v. DUNCAN.
ber, 1827. No other testimony was taken or returned with that commission,
On the 24th of January, 1828, the infant defendants put in their answer, by their guardian ad litem, in which they said, that they knew nothing of the contents of the bill; nor could they admit them; but prayed that they might be proved, and that their interests might be protected.
21st February, 1828.—BLAND, Chancellor.—This case standing ready for hearing, and having been submitted, the proceedings were read and considered.
The law of a case arises out of the facts of which it is consti- tuted, and it is the duty of the court to declare what that law is. It is therefore not only unnecessary, but, in some cases it may be deemed impertinent, in a suitor to set forth, and comment upon what he conceives to be the law arising out of his case. To do so, without stating all the facts, or upon an imperfect statement of facts; as for example, to charge a defendant with fraud, with- out stating any such facts, as in contemplation of law, constitute a fraud, can form no foundation for relief or defence. It is sufficient that each party should state the facts of his own case; and there- fore, although it is not unusual for a plaintiff to state in his bill, by way of anticipation, some of the allegations and pretences of
- . the defendant; it is not indispensably necessary, in any case, or even proper in all cases, to set forth any matter in the bill, which if brought out at all, should come from the defendant as consti- tuting a part or the entire foundation of his defence. But, it is essential that the plaintiff should distinctly state every fact neces- sary to constitute such a case as gives him a right to claim relief from the defendant at the time of filing his bill; and moreover, to set forth those peculiar circumstances which justify him in passing by the ordinary tribunals of the common law, and coming into a Court of Equity to seek that relief. The plaintiff may state his case in the alternative, or with a double aspect, so that it may be considered in one way, or in another; provided, that in whatever way it is presented, it falls properly within the cognizance of a Court of Equity. Upon a case, so stated, the plaintiff may either pray for special or for general relief; or he may make both special and general prayers for relief. And where the nature of the case is such, that the special prayer or designated relief cannot be granted; then, under the general prayer, relief may be granted, suitable to the peculiar nature of the case; as to which the court TOWNSHEND v. DUNCAN. 49
is not confined to that which may be specially asked or suggested, orally or otherwise; but may adapt the relief exactly to the nature of the case stated in the bill, regardless of any thing that may be said to the contrary by any of the parties. But if there be no gene- ral prayer, and the special prayer cannot be granted, the plaintiff must amend his bill or have it dismissed, (c)
Before a decree can be so correctly framed as to suit the pecu- liar nature of the case now under consideration, the court must be furnished with some further information, and with some statements
by way of illustration of the bearings of the allegations of the bill.
But no case can be sent to the auditor for any such purposes, where there is no ground for relief shewn by the pleadings, or
where the facts as stated in the bill, do not, of themselves, exhibit a sufficient foundation for some relief, either under the special or the general prayer, (d) It will therefore be necessary to see whether these plaintiffs have stated such facts as constitute a case that entitles them to relief; and also to consider what are the pow- ers and duties of the auditor to collect information, and make state- ments in cases of this kind.
The facts of which the plaintiffs have constituted their case, are these : William Duncan, being seized and possessed, in fee simple, of a parcel of land, containing two hundred and twenty-nine acres and a half, by his last will devised it to his two infant children, the defendants William and Caroline, and their heirs forever
as joint tenants; and to his daughter Anna Maria, now the wife
of the plaintiff Perry Townshend, he bequeathed an annuity of sixty dollars, to be paid to her out of the rents and profits of his real estate above mentioned, annually during her life; and appointed his wife Deborah, the mother of the defendants William and Caroline, his executrix; that the testator died in March, 1810| and the executrix Deborah, administered upon his estate, and paid to the plaintiff Anna Maria, her annuity for one year; after which the executrix Deborah died, and administration de bonis non was thereupon granted to Thomas Iglehart; that the defendant Robin- 50 TOWNSHEND v. DUNCAN.
son, who is the guardian of the infant defendants William and Caroline) had also paid to the plaintiff Anna Maria, her annuity for one year, under the will of her father. But, that those defendants
have failed and refused to pay any more of the annuity to her, either before, or since her intermarriage; and that the defendant Thomas Iglehart having died since the filing of the bill, and administration de bonis non having been granted to John Iglehart, he had been summoned as a defendant, and the suit had been revived against him accordingly.
Upon these facts the plaintiffs have prayed for an account; that the land might be sold; and that the proceeds thereof might be applied to the payment of their annuity with costs, and the balance so invested as to stand as an available fund to meet future
instalments of said annuity; or, that such other relief might be given to them as to the court might seem meet.
It will be seen by adverting to the will of William Duncan deceased, that he has expressly declared, that the annuity should be paid out of the rents and profits of the estate; thus unequivocally shewing it to have been his intention, that it should be charged altogether and exclusively upon that estate; and that his personalty should be in no way liable (e)—consequently, it could not have been necessary for the plaintiffs to say any thing of the deceased's personal estate; or to have made his executrix or administrator a party to this suit.
The subject claimed by these plaintiffs is an annuity charged upon, and payable out of the rents and profits of a certain real estate; which real estate, so charged, was devised to these infant defendants William and Caroline, These facts are sufficiently stated in the bill, and are more fully shewn by the last will of the testator, which is exhibited as a part of it. The bill further states, that after the death of the testator, Deborah, who was the mother of the infant defendants William and Caroline, paid the plaintiff Anna Maria one year's annuity; and that the defendant Robinson, who is their guardian, also paid the plaintiff Anna Maria one year's annuity, under her father's will. Here then is a sufficient state's ment of the fact, that these infant defendants, by their mother, and afterwards by their legal guardian, took the real estate so devised to them; and actually, in consequence thereof, paid a part of the annuity so charged upon it. Ref: https://www.msa.maryland.gov/megafile/msa/speccol/sc2900/sc2908/000...
There is reference in this transcript below, to possible forbears of Perry Townsend Snr. Further research will hopefully find the link between Henry, John and Perry.
Ref: https://archive.org/search.php?query=Mathias+b+Townsend+
WALTER ROBEY TOWNSEND
WALTER R. TOWNSEND, of Baltimore, was born in Baltimore County on July 20, 1857, son of Wilson and Mary L. (Robey) Townsend.
Mr. Townsend^s family is an old one as families go in America, but a much older one in Great Britain, where its authentic history goes back for many centuries. In great Britain the name seems to be indifferently spelled Townsend or Townshend. The oldest family appears to be the Townshends of Raynham, and the present head of the family in Great Britain is the Marquess Townshend. Branches of the family have been settled in Scotland and Ireland for many generations. The Maryland branch was founded on the Eastern Shore shortly after the first settlement of the colony. As far back as 1683, we find John Townsend one of the legatees of Henry Townsend. Perry Townsend, great grandfather of Walter R. Townsend, was bom in Talbot County, and was the first of the family to settle in Baltimore County. His son, Mathias B. Townsend, was born in Talbot County in 1802. He was one of the best known sportsmen of his. time, and the Porter’s Bar Ducking Shore, which was his property is still held by a member of the family. Wilson Townsend, son of Mathias, was a large land owner in Baltimore County, and for forty years was identified with the Pennsylvania Railroad. He was a capable man, in addition to his farming being connected with the Philadelphia, Wilmington and Baltimore Railroad for sometime as a local agent, then as contractor, later as a confidential agent. His connection with that road extended over thirty-seven years, that road being a part of the system of the Pennsylvania Railroad. He served as a justice of the peace, and as a school commissioner of Baltimore County. He took a keen interest in public affairs, and was influential in the counsels of the Democratic party. In 1877 he was elected to the Maryland House of Delegates by a majority of over nineteen hundred. During his entire life he was a strong advocate of the temperance cause. He married Miss ^Mary L. Robey, of Prince George County, ^Maryland, daughter of Walter . and Elizabeth (Haynes) Robey. https://archive.org/search.