Fenby v. Johnson , 21 Md. 106 ( 1864 )

Bartol, J.,

delivered the opinion of this Court:

The main question arising upon this appeal, and as it appears by the opinion of the Judge of-the Circuit Court, the only question submitted to him at the hearing of the cause, involves the construction of the will of James Johnson, deceased. The particular clause of the will, which has given rise to this controversy, after giving to the wife of the testator one third of his estate and property during "her life or widowhood, is as follows:

“I give, devise and bequeath the other two undivided thirds to my children equally. But it is my will, that in case both my children shall die in their minority, unmarried, without issue, and intestate, that the portion so given and devised to them, shall go to, and be held by my aforesaid wife, if she shall be then living, so long as she shall live and remain a widow, and at her death or subsequent marriage, then I give and bequeath the same to my right heirs.”

The testator left two children — a son and a daughter; after his death the daughter died in her minority, intestate! The widow, who is the complainant in this cause, renounced under the will, and elected to take according to law.

Richard D. Eenhy and James Stirrat, the executors named in the will, qualified as such, returned an inventory and accounted with the Orphans’ Court. On the 5th of August 185^, letters of administration were granted to the appellee on the estate of her deceased daughter, and on the 3d of December 1851, she was duly appointed and qualified as guardian of her son. The bill in this cause was filed by her in her own right, as administratrix of the daughter, and as guardian of her son, charging “that by the true construction of the will, she is entitled as distributee to one-half of the personal estate of her daughter; and as widow and administratrix, to an account of the administration by the executors, and to an allowance as guardian for the support of her son; and the prayer of the bill is for an account, and for general relief.”

The answer of the executors denied the jurisdiction of the-Court, and alleged that they had accounted in the Orphans’ Court; but admitted the material facts alleged in the bill.

The Circuit Court decreed that “an account should be taken, &c., and awarded to the appellee as administratrix of her daughter Emma Johnson, deceased, the one-third part of the personal estate of James Johnson, deceased, to be held and administered according to law.” The Circuit Court-in the opinion accompanying the decree, decided that the daughter took under the will a vested estate in fee, in the moiety of two-thirds of her Lather’s estate, which, at her death, passed to her heirs and personal representatives, and not to her surviving brother by way of cross-remainder, by implication; and that consequently the appellee was entitled, as distributee,' to one-half the personalty of her said daughter acquired under the will.

The account of the auditor being stated in conformity with the opinion and decree, exceptions were filed thereto,* and this appeal.was taken from the decree.

An examination of the cases cited in argument, has led us to the conclusion that the construction put upon this danse of the will by the judge of the Circuit Court, was correct.

In the opinion of this Court the children took under this devise as tenants in common in fee in the lands, and an absolute estate in the personalty, which vested upon the death of the testator; and the limitation over upon the contingency named in the will, was good as an executory devise. In such case the weight of authority, as well as of reason, is, that there is no implication of cross-remainders between the devisees, but in case of the death of one, the event which has actually happened, her estate devolved upon her heirs and personal representatives, subject however to be afterwards defeated by the happening of the contingency named in .the will.

The authorities cited in the opinion of the judge of the Circuit Court, and which may be found collected in Jarman on Wills, vol. 2nd, ch. 44, fully establish this conclusion.

An examination of all the cases cited in the argument, has satisfied us that the distinction between the cases of devises in tail, and in fee, as affecting the doctrine of cross-remainders by implication, which is so well expressed by the learned author in the beginning of the chapter referred to, is well established both on reason and authority; and we adopt the rule stated by him as applicable to the construction of the will before us. He says, on page 482, “If, therefore, a gift is made to several persons in fee-simple as tenants in common, with a limitation over in case they all die under age, the share of one of the devisees dying during minority will devolve upon his representatives, unless and until the whole die under age,” and the same rule applies to a gift of an absolute interest in personalty.

On this subject we refer also to the able decision of Sir Wm. Grant, Master of the Rolls, in Skey vs. Barnes, 3 Meriv., 335, which, in the language of Mr. Jarman, “may be considered to have fixed the rule of law on this important doctrine of testamentary construction.”

The appellants have assigned as error in the decree, that it requires an account to be taken of the rents of the real estate received by them, on the ground that the bill does not charge that they have collected any rents, and also because as executors and trustees under the will they have nothing to do with the real estate. We think the decree ought not to be reversed for this reason. No objection was taken to the frame of the bill, and it contains a prayer for general relief. It is true that under this prayer the complainants are not entitled to claim relief beyond the general scope and object of the bill. As executors merely, the. appellants would have nothing to do with the realty, and a decree- against them for an account in reference thereto, would bé erroneous; but in this case, they are entitled as trustees under the will, to receive the income of the estate devised to the children, both real and personal, for the purposes specified in the will, and, in that character, an account of rents of the realty received by them might properly be taken.

The record before us discloses the accounts actually taken by the auditor under the decree, and the appellants are charged therein only with the sum of $86.24, as ground-rents received by them since their account in the Orphans’ Court. This sum is designated in the auditor’s account as “Rents of real estate owned by James Johnson, deceased.” It appears, however, that it was ground-rent received from H. Krager, according to the statement furnished to the auditor from the.books of the appellants. In their account previously passed in the Orphans’ Court, they charge themselves with the same amount for ground-rent before received from Krager, as part of the personalassets in their hands. It does not clearly appear whether this ground-rent was a part of the property taken by the executors from S. Eenby & Brother, in satisfaction of a debt due the testator, and which by the decree was ordered to be treated as personalty, or whether it was, as stated by the auditor in his account, “of the real estate of James Johnson, deceased.” But in either event the appellants, both by their account passed in the Orphans’ Court and by the statement furnished from their hooks to the auditor, admit themselves to be chargeable therewith.

(Decided Feb’y 24th, 1864.)

The account of the auditor was not passed upon by the Circuit Court, it was excepted to by the appellants only on the ground that the sum awarded to the complainant as administratrix of her daughter, Emma Johnson, ought to have been awarded to the appellants as trustees of the surviving child, Jos. J. Johnson; the affirmance by this Court of the ruling below on the construction of the will, disposes of this exception, even if it were properly before us on this appeal.

The objection taken by the appellants to the jurisdiction of the Court in this case, seems to us to be conclusively answered by the decision in Barnes vs. Compton, 8 Gill, 391: “The power and jurisdiction of Courts of Equity to superintend the administration of assets, and decree distribution among legatees and distributees, is now well established.”

Decree affirmed, and cause remanded.