Hall , 1866 Md. LEXIS 92 ( 1866 )

Goldsborough, J.,

delivered the opinion of this Court.

The appellant, Richard C. Hall, as executor of Eliza S. Hall, filed his petition in the Orphans’ Court of Baltimore city, alleging that he was ready and willing to distribute the estate of his testatrix ; but being in doubt as to the parties entitled to one undivided fifth part thereof bequeathed to Eugenia S. Hall, who died in the lifetime of her mother, the testatrix, he prayed for an order of distribution, which the Orphans’ Court passed pro forma, on the 25th day of September, 1866, directing the executor to distribute the share of Eugenia amongst the granddaughters of the testatrix who were living at the time of her decease. From this order this appeal was taken.

Whether the ruling of the Court below is correct, depends upon the proper construction of the will of Mrs. Hall, which is dated the 19th day of November, 1861, and was admitted to probate on the 13th of March, 1865.

A careful examination of this will has satisfied us that the order of the Orphans’ Court is correct.

The share bequeathed to Eugenia was for her life, and if she continued unmarried, she should have the power to dispose of the same by will, after the decease of her mother ; and failing to do so, her share was devised to the granddaughters of the testatrix living at her death. Eugenia died in the lifetime of her mother unmarried. Though she made a will which was admitted to probate, she had no interest in this share which she could devise, until the death of her mother. Her will was premature and could not defeat the rights of the granddaughters. Though it is provided by the will of the mother that if Eugenia should ■die intestate and unmarried, still her making a will and ■dying intestate are correlative, and both must be construed ■to mean after the death of her mother.

( Decided December 20th, 1866.)

In other words, the intestacy must have relation to the property devised, and over which Eugenia had the power •of disposition, which power she could exert only upon the ■contingency of her surviving her mother. Her will, by which she devised the property to her mother, could not vest an interest in her mother, nor did the 'death of Eugenia in the lifetime of her mother cause the devise to her to abate, so that in neither event can the theory of the appellant he sustained that the mother 'died inféstate of this •share.

To give such a censtruction would be in -direct conflict with the express provision of the will of the testatrix, which gave to Eugenia the power to make a will after the mother’s death ; and failing to do so, her share passed to the granddaughters by operation of the will.

The order of the Orphans’ Court must he affirmed, and this Court will pass a decree to that effect with costs in both Courts to be paid out of the estate.

Order affirmed*