Johns Hopkins University v. Pinckney , 1881 Md. LEXIS 47 ( 1881 )

Robinson, J.,

delivered the opinion of the Court.

By the fourth clause of his will, the testator directed his executors to invest the sum of ten thousand dollars in some safe secui’ity, and to pay the income thereof annually to Theodora Pinckney, so long as she remained unmarried. “ My object,” says the testator, “in giving this legacy, is to show my grateful sense of the Christian sympathy in my sufferings, of one met in Rome several years since, and to testify to the influence for good of her inculcation and practice of the precepts of divine truth, in strengthening my efforts to seek the kingdom of G-od and his righteousness.”

The will was executed at Madrid, in Spain, on the 17th of May, 1873.

After his return to this country, the testator on the 26th of February, 1876, made the following codicil:

“ First. I revoke all devises and bequests given by me to my son, Claude Baxley, therein, absolutely, and in lieu thereof, I devise to him all my real estate for life; after his death, then to go to the trustees of the Johns Hopkins University, for them therewith to endow any medical professorship therein, they may think proper.

“Secondly. I bequeath to my brother, J. Brown Baxley, in lieu of the $1000 in said will given, the sum of $5000 for life; after his death, to go to said trustees of said University for said purpose.

“ Thirdly. I bequeath the $15,000 in bonds in my box in bank and the money on deposit in the banking house of J. S. Grittings & Co., and any other personalty of which I am possessed, to the said trustees of said University for said purpose, hereby republishing said will in every other respect.”

The question in this appeal, is whether the codicil revokes the legacy of $10,000 to Miss Pinckney, in the fourth clause of the will ?

In determining the question of revocation of a will by a codicil, all the cases agree:

1st. That the codicil does not operate as a revocation of a devise or bequest in a will, unless there is an express clause of revocation, or unless the provisions in the codicil, are so inconsistent with the will, that the two cannot stand together.

2nd. If revocation is to be implied from inconsistent provisions, it will be limited to such provisions of the will, as are plainly inconsistent with the codicil.

3rd. Where the devise or bequest in the will, is clear and free from doubt, the intention to revoke by the codicil, must be equally clear and explicit. Jones vs. Earle, Ex’r, 1 Gill, 395; Lee vs. Pindle, 12 G. & J., 305; Douglas vs. Blackford, 7 Md., 8; Doe vs. Hicks, 8 Bing., 475 ; 1 Cl. & Fin., 20; Alexander vs. Alexander, 6 De G., M. & G., 593; Agnew vs. Pope, 1 De G. & J., 49; Patch vs. Graves, 3 Drew, 348; Williams’ Ex’rs, (6th Am. Ed., 220;) 4 Kent, 531.

The governing principle which lies at the bottom of these well settled rules, is the intention of the testator, to be ascertained from the face of the will and codicil, construed as one instrument. Apart from these general rules, where the question is one of intention, judicial decisions in other cases, afford but little assistance in the construction of testamentary papers, because it rarely happens, that two wills are expressed precisely in the same language.

Tested by these general principles, the question here is whether the gift to Miss Pinckney is revoked by the codicil.

So far as the will is concerned, there is no doubt of the testator’s intention to give to her the interest on $10,000 during her single life. This is declared in plain and explicit terms, and the impulse which prompted the bestowal of it, is expressed with unusual earnestness and force. It will not be contended there is any clause in the codicil expressly revoking this gift.

The testator does revoke in express terms the devises and bequests to his son Glaude', and in lieu thereof, he gives to him a life estate in the realty, with remainder to the trustees of the University.

He also modifies the provision in favor of his brother, J. Brown Baxley, and in lieu of the $1000, gives him $5000 for life, and after his death the $5000 to the University.

There is no reference whatever to the legacy to Miss Pinckney, and if it he revoked at all, it must he by the operation of the last clause in the codicil, in which he gives the $5000 in bonds, and his monej'' on deposit, and such other personalty of which he was possessed at the time of his death to the University. Standing alone, this clause might he construed as a bequest of all other personal property belonging to the testator, not otherwise disposed of by the preceding clauses in the codicil. In the same clause, however, we find the testator ratifies and confirms his will in every other respect. By this, we understand him to ratify all the provisions of his will which are not inconsistent with the codicil. In order to ascertain the testamentary intention of the testator, it is necessary, therefore, to examine the provisions of the two papers, and see in what respects they are inconsistent with each other.

By the first clause of the will, the testator directs the sum of one thousand dollars to he paid to the trustees of Greenmount Cemetery, the income thereof to be expended in the preservation of his cemetery lot.

By the second, he provides that a “ rough-hewn granite rock of large size,” with an inscription to “ H. Willis Baxley and Annabella Baxley, and their children,” shall he prepared at the cost of his estate, and placed in said lot, and after the burial in said tomb of his son Claude, should he so select, he directs that his cemetery lot “ shall he forever after closed to further interments.”

There is no clause expressly revoking, nor is there a reference of any kind in the codicil to these provisions; and when they are read in connection with other parts of the will, in which the testator refers to the unhappy relations between himself and those who ought to have been nearest to him in life, it is unnatural and unreasonable to suppose he intended to revoke these provisions, and give the money thereby to he expended, towards the endowment of a School of Medicine. And yet such is the appellants’ contention.

And when we come to the fourth clause, in which the testator directs his executors to invest the sum of ten thousand dollars, the income thereof to be paid to Miss Pinckney so long as she remains unmarried, and in which he expresses the motives which prompted this bestowal of his bounty, his deep sense of gratitude for the sympathy manifested by her, in all his troubles and sufferings, it is equally improbable that he meant to revoke this gift, and confer it upon the University. We do find that he expressly revokes or modifies the provisions of his will, in regard to his son Claude and his brother; and if he intended to revoke the bequest in favor of Miss Pinckney, it is but reasonable to suppose that he would have done so in terms equally plain and explicit. Where a bequest is thus made in clear and unambiguous terms, it would he against every sound principle of construction, to permit such a gift to he revoked by doubtful expressions in a codicil. As a general rule it is said, that in order to revoke a clear devise, the intention to revoke, must he as clear as the devise. Williams’ Ex’rs, (6th Am. Ed.,) 220; Bosley vs. Bosley, 14 How., 395; Quincy vs. Rogers, 9 Cush., 295; Lee vs. Pindle, 12 G. & J., 288.

Construing, then the will and codicil together, it seems to us that the testator meant to revoke and alter the third and fifth clauses of his will, only, and by the last clause in the codicil, to give the rest of his personal property, not disposed of by the preceding clauses, to the trustees of the University, subject, however, to the provisions of his will in regard to the protection and adornment of his burial lot, and subject to the legacy of $10,000, in favor of Miss Pinckney.

This construction is consistent with the general intent in the codicil to endow a professorship in the University, and consistent, too, with the particular intent expressed in the will, to bestow bis bounty in part upon one, whom be declares to be pre-eminent y entitled to his gratitude. And in ratifying his will in all other respects, he meant to ratify all such provisions of the will, as were not plainly revoked or altered by the codicil. It was not his purpose, as the appellants contend, to make an absolute disposition of his entire property by the codicil, thus leaving no part of the original testamentary paper operative, except the clause appointing the executors. This would be to give to the codicil the effect and operation of a new will, out and out, and not as the testator meant it to be, merely an addition or supplement to his original will. If he intended to ratify only so much of the will as appointed the executors, then such ratification was altogether unmeaning and unnecessary, because the codicil made no change or alteration whatever in this respect.

(Decided 27th January, 1881.)

Being of opinion, then, that the gift to Miss Pinckney is neither expressly or impliedly revoked by the codicil, the decree will be affirmed.

Decree affirmed.