Carpenter v. Boulden ( 1878 )

Bartol, C. J.,

delivered the opinion of the Court.

The decision of this appeal depends upon the true construction of the following clause of the will of Richard Biddle deceased:

“Rem. I furthermore give and bequeath to the aforesaid Laura L. Biddle the sum of two thousand eight hundred dollars, in cash, which sum is hereby directed to be placed at interest, according to the wise discretion of her guardian, and the interest arising therefrom, to be ■appropriated to the benefit and support of said Laura during her minority, and when at lawful age, the aforesaid sum of two thousand eight hundred dollars must he paid •over to her in good faith. It is provided however that in the event of the death of the aforesaid Laura L. Biddle before maturity, or without issue, then in such case, the money thus bequeathed to her shall revert to the children ■of George R. Carpenter and Leonis his wife.”

The will was executed on the 24th day of October 1861 and admitted to probate on the 11th day of February 1862.

It appears from the statement of facts signed by the ■solicitors that George W. Boulden, one of the appellees, was duly , appointed guardian of Laura L. Biddle the legatee named in the will, and as such, received from the •executor of the testator the whole amount of the legacy. Laura reached the age of 18 years on the 17th day of August 1869, and on the second day of November in the same year a settlement of accounts was made between her guardian and herself, and the balance then due from him was ascertained, which remained in his hands with the understanding and promise on his part, that it should he invested in a mortgage in the name and for the benefit of Laura L. Biddle. Laura died on the 22nd day of August 1870, aged 19 years and 5 days, intestate and without issue ; never having been married.

The appellees Mary E. Biddle and L. A. Cavender, her •administrators, now claim the money remaining in the hands of Boulden her former guardian. Which is also claimed by the appellants who are admitted to be the children of George R. Carpenter and Leonis his wife, the legatees in remainder named in the will.

By the terms of the will, the limitation over is to take ■effect in the event of Laura Biddle, the first devisee, dying * ‘ before maturity or loithout issue. ’ ’

The first question to be determined is the meaning of the words “before maturity.” By the former part of the will, the testator directs that the legacy shall be placed at interest, according to the wise discretion of her guardian, and the interest arising therefrom, to he appropriated to the benefit and support of Laura during her minority, and then directs that the aforesaid sum of money “must be paid over to her in good faith when at lawful age.” That is when she attained the age of eighteen years. The Code expressly provides that “ where a bequest of personal property or money is made to a female, and directed by the will to be paid, on her attaining to full, mature, or to lawful age, such female shall he entitled to receive and demand such personal property or money on her arriving at the age of eighteen years, or being married.” Art. 93, see. 142.

It is clear that the testator by the word “maturity,” meant the same thing as he had before expressed by the words ‘ ‘ lawful age; ’ ’ the time designated for the pay-men t of the legacy; which we have seen is the age of eighteen years.

Laura Biddle having attained that age, the legacy became vested in her absolutely, and was not divested by her subsequent death without issue.

It has been settled by repeated decisions in this State, that in a devise or bequest of this kind, in order to effectuate the general intent of the testator, the word “or” must be construed tornean “and.” So that the limitation over cannot take effect, except upon the happening of both contingencies. This construction is necessary to effect the intention of the testator to provide for the issue of the first taker in any event.

We refer to Raborg vs. Hammond, 2 H. & G., 42, and Neal vs. Cosden, 34 Md., 422.

This will was made before the passage of the Act of 1862, ch. 161, and the question arises, and has been argued at the bar, whether the executory devise would not he void, as too remote, being limited generally upon the event of Laura dying loithout issue. It is not necessary to express any opinion upon this question, because we consider it .clear, upon the construction of the will, that Laura Biddle, on reaching the age of eighteen years, had the absolute estate and property in the legacy, which by her death has devolved on her personal representatives. The order of the Circuit Court will therefore he affirmed.

(Decided 1st March, 1878.)

Order affirmed.