Elder v. Lantz , 49 Md. 186 ( 1878 )

Bowie, J.,

delivered the opinion of the Court..

The appellants, as heirs and next of kin of Samuel Elder, Esq., late of Baltimore City, deceased, filed their bill in the Circuit Court of that city, against the appellees, to procure a judicial construction of the residuary clause of the will of the deceased, so far as it relates to the trusts therein created in favor of Margaret Buck.

The testator died unmarried in the year 1866, without-issue or lineal descendants, seized, and possessed of real estate, leasehold and personal property, having first executed his last will and testament, dated the second of May, 1863, which is the subject of this suit.

The will appears to be a careful and-deliberate disposition of all the property of the deceased among a number of legatees, some of whom are connected by ties of friendship, others by consanguinity and affinity—including all his next of kin and heirs-at-law,—and in default of children or descendants of these, to certain charitable institutions-therein named and described.

The instrument is drawn and executed in legal form ;. its several bequests are couched in technical terms, used with general precision and accuracy, evidencing that the-testator had the benefit of counsel, was fully aware of the force of the language used and the meaning, and relation of the several bequests to each other, and the order of succession established therein.

The heirs-at-law and next of kin of the deceased, (supposing him to have died intestate,) are the complainants,. viz., Samuel J. Elder, only child of a deceased brother, William White, only child of a deceased sister, Florence Knight, Marion E. Harwood, Mary Elder Beebe, Esther McK. Harwood, granddaughters of a deceased sister, who intermarried with Henry Harwood, and Margaret Buck, a great niece of the deceased.

The first bequest in the will is a direction to his executors, etc. “ to set apart the sum of $3000, and to invest the same in some safe security, and as trustees, hold such security in trust for Samuel James Elder, minor son of his deceased brother James, until the said Samuel J. Elder shall attain the age of twenty-one years, or until he shall have issue,” which ever shall first happen, then, in trust, to convey and assign such investment to said Samuel J. Elder absolutely forever ; “ but, in case the said Samuel J. Elder shall die, in his minority, without issue, then in trust as to one-third thereof for his, the said S. J. Elder’s mother absolutely; and as to the other two-thirds for Margaret White and Florence Harwood, in the same manner as herein prescribed in relation to the portion of my estate, specifically bequeathed in trust for the said Margaret While and Florence Harwood, respectively, and for their respective children and descendants.”

The second bequest is, to Robert W. White, “son of his old friend Henry White, deceased,” $2000, in case he survives the testator, but if he he dead at his decease, then to the child, children or descendants of said Robert, then living, “ per stirpes” and not “per capita but if there he no such

children or descendants then living, the sum of $2000 shall be invested and held in trust for his sister, Margaret White, and his sister-in-law, Anna White, etc., “for the same uses and purposes as the property specifically herein bequeathed in trust for them respectively.”

The third bequest is, to Margaret White, “daughter of his old friend Henry White, deceased.” After giving her sundry articles of furniture, he directs his executors to invest $8000 in good security, and hold the same as trustees, in trust to collect the income and pay the same to Margaret White, during her natural life, and after her death, in trust for all the children and descendants which said Margaret shall leave living at the time of her death, to take “per stirpes” and not “per capita,” hut if the said Margaret shall leave no such children or descendants, then in trust for “ The Union Protestant Infirmary of the City of Baltimore,” “The Baltimore Humane Impartial Society ” and “ The Aged Women’s Home The Baltimore Orphan Asylum” and “The Baltimore Home of the Friendless,” share and share alike.

The fourth bequest, after giving sundry articles of furniture to Florence Harwood, daughter of his nephew, James Harwood, directs his executors to set apart and invest $6000, to he held by them as trustees, to collect the income and pay the same to the said Florence Harwood, during hernatural life, and to her children and descendants, etc., and in default of children or descendants, in trust for the charitable institutions before mentioned.

The fifth bequest is as follows, viz., “ I direct that the sum of three thousand dollars be invested by my executors, and he held by them as trustees, in trust for Margaret Buck, infant daughter of my niece, Margaret Buck, deceased, for and during the term of her natural life, so that she shall receive the issues and income therefrom ; and from and after her death, in trust for all her children and descendants, whom she shall leave living at the time of her death, to take ‘per stirpes’ and not‘per capita,’ hut if the said Margaret Buck shall have no children or descendant, living at the time of her death, then in trust for her aunt Olivia Buck, and her heirs, absolutely.”

Then follow bequests of $2000 to he invested by the executors, and held in trust for Anna White, wife of his nephew, Wm. White ; $6000 to be invested by the executors, and held in trust for Mary Elder Harwood, and Esther McKinley Harwood ; the income to he paid to the legatees for life, with remainder to their children and descendants, with cross remainders as to the $6000, between the children of the said Mary and Esther, and in default of children or descendants of said legatees, then in trust for the charitable corporations before named.

Having given some directions immaterial to the questions before us, the will continues thus: “All the rest, residue and remainder of my estate, I give unto Wm. White, my nephew, and Oliver F. Lantz, and the survivor of them, to be held by them in trust as to one-third thereef, for the hereinbefore named Margaret White, her children and descendants ; as to one other third for the herein-before named Florence Harwood, her children and descendants, and as to the other one-third, for the hereinbefore named Margaret Buck, minor, her children and descendants, in the same manner and for the same purposes hereinbefore prescribed in relation to the specific legacies herein given, in trust for them respectively, and their respective children and descendants.”

The executors were authorized, as trustees, to sell the whole or any part of the testator’s estate or property, held at any time by them as executors or trustees, for the purpose of settling the estate in the Orphans’ Court, or for the purpose of re-investment from time to time, whenever considered judicious, and to execute deeds to carry out any and all sales made by them.

The appellants claim “ that the testator did not dispose of the residue of his estate beyond the persons and their descendants, named in the residuary clause, and did not intend to do so.”

The appellees insist, that the testator by his will, made a complete and final disposition of his estate, under every contingency, leaving nothing to be divided or distributed among his heirs or next of kin, as in case of intestacy. The primary objects of the testator’s bounty as indicated by the specific legacies and bequests before enumerated, were the son and daughter of his old friend, Henry White; his nephew, and great nieces,—who constituted his heirs-at-law or next of kin, in the event of his dying intestate. All and each of these receives a substantial pecuniary legacy.

The second class of beneficiaries, are the children, issue or descendants of the specific legatees ; the third class, (with one exception,) are the charitable institutions, to which, in default of issue, children or descendants of the specific legatees, these legacies are bequeathed in remainder.

The exception to this general rule occurs in the bequest in trust for Margaret Buck, infant daughter of his niece, Margaret Buck, deceased; and from and after her death in trust for her children and descendants ; but if the said Margaret shall have no children or descendants living at the time of her death, then in trust for her aunt Olivia Buck and her heirs absolutely.

Olivia Buck occupies in this specific bequest, the position which the charitable institutions occupy in all the other specific legacies—the third in succession, in remainder after the failure of children or descendants of his next of kin.

The testator has not upon the death of the legatees for life, without issue, created cross remainders among his next of kin, or bequeathed to them in remainder, except in the single item in trust for. Mary Elder Harwood and Esther McKinley Harwood, between whose children cross remainders are created ; manifesting clearly, is was not his genera] purpose, his next of kin or heirs should ultimately succeed to the specific legacies, upon failure of children or descendants of the legatees for life.

The general intent of the testator, as far as indicated by the special legacies, shows no leaning towards, or preference for, his next of kin or heirs, as a class. He has selected in some instances, strangers in blood in preferencé to them.

In the absence of the usual introductory words, showing an intention to dispose of all the estate, real and personal of the testator, of which he might die seized or possessed, it might perhaps be argued there was no language in the will preceding the residuary clause, which would embrace real estate.

All the preceding items are specific pecuniary bequests, in trust for the legatees named, their children and descendants. The question arising on the residuary and subsequent clause in the will is, not only who are the legatees or devisees, but what property is devised ?

The language employed in the residuary clause is very broad and comprehensive, viz.,

“All the rest, residue and remainder of my estate,” “I give, to be held by them in trust.”

The word “estate” includes real and personal property, and when preceded by the unlimited phrase, “ all the rest ” embraces every species of property in quality, quantity, duration and degree. The subsequent and concluding clause of the will authorizing his executors, as trustees, to sell the whole or any parts of (my,) his estate held by them as executors or trustees, for the purpose of settling (my,) his estate in the Orphans’ Court; and empowering them to execute deeds to carry out any and all sales, etc., implies necessarily, his real as well as personal property, was the subject of his testamentary disposition.

The testator designed to settle his whole estate, real and personal, by the provisions of his will in a certain fixed order of succession, selecting some of his next of kin, and excluding others.

It does not appear what claim, (if any,) Olivia Buck had on the testator’s bounty, except her relationship to his great niece, Margaret. It. is certain she stood so high in his regard, as to be preferred to his next of kin, in the final disposition of the legacy of three thousand dollars to Margaret Buck, upon failure of her .issue; and it is fair to presume that she would occupy the same relative position in the testator’s favor, when he came to dispose of the remainder of the third of his estate bequeathed to Margaret Buck, upon the failure of children or descendants.

From these considerations we conclude that the residuary clause of the will covers both the real and personal estate of the testator, not thereinbefore devised and bequeathed, and conveys the same in trust for the persons therein named and described, their children and descendants ; and in default of such children and descendants living at the time of their decease ; then, as to two-thirds of said residue in trust, for “ The Union Protestant Infirmary of the City of Baltimore,” “The Baltimore Humane Impartial Society,” and “The Aged Women’s Home,” “ The Baltimore Orphan Asylum,” and “ The Baltimore Home of the Friendless,” share and share alike, (assuming such corporations are in existence and capable of taking,) and as to the other one-third of said residue in trust, for the appellee, Cassandra Olivia Buck, “and her heirs absolutely.”

The words “their respective children and descendants,” in the last sentence of the general residuary clause of the will, are not used as descriptive of the several persons among whom the residue was to he divided, but as descriptive of the specific legacies, in which the manner and purposes were prescribed, which were to be followed and observed by the trustees in relation to the residue.

If the intention of the testator had been to limit the disposition of the residue to the three legatees named, their children and descendants, respectively, the last words of the sentence “in the same manner and for the same purposes,” etc., should have been omitted. They could only have been introduced for the purpose of preventing intestacy, in the event of the failure of children or descendants of the persons named.

This is not in our judgment a case of a devise or bequest, by implication, whereby the heirs-at-law, or next of kin are excluded, but one in which the residue of the estate is devised in trust in express terms, and the cestuis que trust designated in terms of reference, so clear that there can be no reasonable doubt of the objects of the testator's bounty.

(Decided 27th June, 1878.)

Tbe authorities cited by the appellants, to show that heirs are not to be disinherited by implication, are not controverted, but conceding their full force they are not applicable to the present case.

As every will is its own best exponent, we have endeavored to ascertain the meaning of this by studying its general features, analyzing its particular bequests, and extracting from the whole the true purpose of the testator.

The construction of wills is prolific of cases abounding in verbal distinctions incapable of being reduced to any general rule. The consequence is, authority may be found for almost any theory of interpretation. The learning and diligence of the counsel in this case has not failed to adduce a number of decisions in support of their respective views, which it would be difficult to reconcile; hence, we have preferred to base our decision in this case, not on any particular precedent, but upon the broad principle of the manifest intent of the testator, apparent on the face of the will.

There being no error in the decree appealed from, the same will be affirmed with costs to the appellees.

Decree affirmed.

Bartol, O. J. and Miller, J., dissented.