Darrington v. Rogers , 1 Gill 403 ( 1843 )

Dorsey, J.,

delivered the opinion of this court.

The testator having directed the sale of all his real and personal estate, without any preceding devises or bequests, declares that he gives and disposes of the proceeds of sale, “and all the residue and remainder” of his “estate generally,” the one moiety or half part thereof, to trustees, for the benefit of his wife and children in the manner specified in his will, and the remaining moiety or half part, to trustees, for the benefit of the complainants. The testator thus divided his estate into two separate and distinct moieties; giving each moiety to different persons; and by nothing that appears in the will, can we even raise an inference, that upon any contingency or con' dition that might happen, the whole or any portions of those distinct moieties were ever again to commingle; or that the legatees, entitled to one moiety, should ever become entitled lo any portion of the other. In the contemplation of the testator, as far as we can collect it from the face of the will, the moieties were intended to be as completely separated and as permanently distinct from each other, as if they had never formed one common fund or residue and remainder. It is true that the testator had made bequests, to his wife, out of one of those moieties, which he thought would have been a sufficient temptation to have prevented her from asserting her legal rights to his estate. But for the event of her doing so, he has provided no change or substitution in the testamentary disposition of his property. And he having failed lo do it, we cannot do it for him; the more especially as it would, pro tanto, work the disheritance of his children and heirs at law. The election of the widow, to stand upon her legal rights, does, it is true, occasion loss to the appellants; but it is a loss resulting by operation of law, and against which the testator only could have provided an indemnity. The condition of the children, too, was changed by the election of their mother: they might also have sustained loss, by receiving less than their father had given, and by his will designed to have given them. Suppose the widow had died immediately after having made her election, what would have passed lo the children under their father’s will? Two-thirds of a moiety of his personal estate, and a moiety of the real estate, subject to a dower. But suppose she had died, about the same time, without any renunciation of the bequests made to her by the will, what then would the children have received? By the express terms of the devise to them, an entire moiety of their father’s' estate, both real and personal.

Upon the election of the widow, all devises and bequests made to her by the will were inoperative and void; and the property given to her, except so far as it may be diminished by the exertion of her legal rights, remains as if no such devises and bequests had ever been made to her. Apart from the act of 1810, concerning lapsed legacies and devises, it would stand precisely in the condition in which it would have stood had the wife died in the life-time of the testator. In such a condition of things, would not the limited temporary interest of the wife (under the will) in the moiety, have sunk and passed, under the limitation, over to the children in perpetuity? By the marriage of the wife subsequent to her renunciation of her husband’s will, no change is wrought in her rights or the rights of other persons in the estate of the testator. The rights of all parties remain the same that they were when the renunciation was made, and that they would have been, had no such provision, in relation to the second marriage, been contained in the will. But should we regard this contingent legacy to the wife, after her election, as so far continuing to operate, as upon the happening of the contingency, to become a lapsed legacy, it could not sink into that general residue and remainder, which, by the express direction of the tes - tator and in legal contemplation, had antecedently been divided, and of one of which divisions it formed a part. Under the devises and bequest to the complainants, we think it manifest, that no part of it passed. See the cases of Wisner vs. Barnet and al, 4 Wash. C. C. R. 631. Cruse vs. Barley, 3 P. Wms. 20. Davers vs. Dewes, 3 P. Wms. 40; and Collins vs. Wakeman, 2 Ves. jr. 683.

But suppose we are wrong in the construction we have given to the will, under the contingencies that have occurred, in regarding the entire moiety as passing to the children under the devise in their favor, subject only to the rights of the widow, in virtue of her election. The legacy to the widow, in virtue of her renunciation, having lapsed or become void, and failing to pass under any of the devises or bequests in the will, becomes a residuum of the testator’s estate, unaffected by any testamentary disposition, and as such, vests not in the complainants, but in his children, as heirs and next of kin.

This case has been brought up to this court by appeal, contrary to the provisions of the act of 1830, ch. 185, and must therefore be dismissed. In venturing, under such circumstances, at the earnest solicitation of the solicitors of both parties, to express our opinion upon the merits of the present contro - versy, we wish it to be distinctly understood, that this act of the court is not to be regarded as a precedent to be followed in any future similar appeal. There is already more business, legitimately before us, than can be definitively disposed of before we shall be called on to attend the courts in our districts; it cannot therefore be reasonably expected, that we should suffer our time to be consumed in the argument of cases, for the decision of which, we have no jurisdiction.

APPEAL DISMISSED.