Ege v. Hering , 108 Md. 391 ( 1908 )

The single issue presented for our consideration by this appeal is the proper construction of certain portions of the last will of Miss Sallie Longwell late of Carroll County. There is no dispute as to the facts of the case, all of which are set out in an agreement of counsel appearing in the record.

Dr. Joshua W. Hering, the executor named in the will, having duly qualified as such, proceeded with the administration of the estate, in the Orphans' Court, to the extent of paying the debts of the deceased and the legacies given by the first eleven clauses of her will and passing his first administration account. He then filed, in the Circuit Court for Carroll County, the bill in the present case for the purpose of procuring a construction of the twelfth to nineteenth clauses, inclusive, of the will and completing the administration of the estate under the jurisdiction of that tribunal.

All parties claiming any interest under those clauses, and also the heirs at law and next of kin of the testatrix were made defendants to the bill and answered it and submitted their rights to the Court for determination. As the clauses of the will to be construed are somewhat voluminous we will state only their purport and effect, with such quotations from their language as we deem pertinent, leaving it to the reporter to insert their full text in his report of the case.

The 12th clause of the will gives to "the Bishop of the Protestant Episcopal Diocese of Maryland and his successors in office, a body corporate of the State of Maryland," a large brick mansion with its curtilage of fifteen acres, lying in the city of Westminster, and also a pecuniary legacy of $10,000, on condition that the devisee shall within one year from due notice to it accept the devise and bequest and proceed to establish on the devised land and permanently maintain an institution designed for benevolent, charitable or educational purposes only; to be permanently conducted and maintained under the auspices of said Protestant Episcopal Diocese of Maryland.

The 13th clause provides that if the above devise of the mansion house and the legacy be accepted and effective steps be taken to carry out its purposes the residue should go to the same devisee for the same purposes.

The 14th clause provides that if said corporation of the Protestant Episcopal Church of Maryland shall "decline to accept" the devise and bequest within the time limited, then the mansion house and legacy shall go to "the Presbytery of Baltimore" upon the same conditions except that, in that event, the institution provided for is to be conducted under the auspices of the Presbytery.

The 15th clause is similar in terms to the 13th except that it gives the residue of the estate to the Presbytery of Baltimore on the compliance by it with the conditions of the 14th clause.

The 16th clause declares, that if "neither of said corporations (Protestant Episcopal or Presbyterian) shall accept said devise and bequest" so given to them respectively within the time limited, that the devise and bequest including the gift of the residue of the estate shall be void and of no effect, and directs the executor in that event to convert into money the subject of the devise and bequest including the residue of the estate and to pay, out of the proceeds, three legacies which are enumerated in the next two clauses as follows:

In the 17th clause the first of the three legacies is given to the Church Home and Infirmary of Baltimore City, being one of $5,000 to endow a bed according to the custom and purpose of that institution; and

In the 18th clause the entire residue of the estate, "not hereinbefore devised, bequeathed or made void" is equally divided between the Domestic and Foreign Missionary Society of the Protestant Episcopal Church in the United States of America, and the Board of Foreign Missions of the Presbyterian Church in the United States of America, the portion taken by each corporation to be applied to the purposes of its organization.

The 19th clause provides that if the Episcopal Diocese or the Presbytery of Maryland shall accept the gift of the mansion house and grounds and at any time thereafter fail to effectively maintain thereon the institution provided for in the gift, or divert the property to other uses or abandon it, the entire gift to such devisee shall become void and the property which formed the subject of the gift shall go in equal shares to the two corporations mentioned in the 18th clause. As there was no acceptance by either the Diocese or the Presbytery of the devise and legacy given to them alternately in the manner above mentioned the limitation ever made by the 19th clause never became operative and that clause of the will requires no further consideration at our hands.

It appears from the record that there is no such corporation as The Bishop of the Protestant Episcopal Diocese of Maryland, but there is one known as "The Convention of the Protestant Episcopal Diocese of Maryland" which formally declined in writing to accept the devises and bequests of the will upon receipt of notice thereof from the executor as did also the Bishop of the said diocese who is ex-officio president of the convention. It further appears that there is no such corporation as the Presbytery of Baltimore but there is one known as "The Trustees of the Presbytery of Baltimore" which formally declined the devises and bequests of the will upon receipt of notice thereof from the executor.

The Church Home and Infirmary of Baltimore City, and the Domestic and Foreign Missionary Society of the Protestant Episcopal Church in the United States of America and The Board of Foreign Missions of the Presbyterian Church in the United States of America are duly incorporated and capable of taking the legacies given to them respectively under the will, if those legacies are valid.

Two codicils were made by the testatrix. By the first codicil a few small legacies were given to persons therein named, but by the second one all of those legacies were revoked and no others given, so that the one codicil annulled the other and the will comes before us for construction as if no codicil at all had been made.

The case having come to a hearing below in due course, the Court passed the decree appealed from in which it determined that, by the true interpretation of the will, the devise and bequest thereby made respectively to the Church Home and Infirmary of Baltimore City, to the Domestic and Foreign Missionary Society of the Protestant Episcopal Church in the United States of America and to the Board of Foreign Missions of the Presbyterian Church in the United States of America are valid and have now become effective through the declination of the prior legatees and that the said corporations are capable in law of taking and receiving them. The decree also directed that the further administration and the distribution of the estate be made accordingly, by the executor, under the direction and supervision of the Circuit Court.

We think the learned Judge below arrived at the correct conclusion as to the true meaning and operation of the will in question. The contents of the will plainly disclose the purpose of the testatrix, who was an aged spinster with no relatives nearer than cousins, to devote her entire estate to the promotion of education, charity and religion. By the clauses of her will preceding the twelfth she had already given eight separate pecuniary legacies, amounting to $31,000 in the aggregate, to religious or educational institutions. By the 12th and later clauses, of which we have stated the substance, she made detailed and careful provisions for the application of the residue of her estate to similar purposes. The only provision made by the will for relatives was one contained in the second clause for the benefit of her mother in the event of her surviving the testatrix. As the mother predeceased the testatrix that provision never became operative.

It is equally clear to our minds that by the clauses of her will now in controversy the testatrix for the purpose of carrying out the general intent of her will provided a series of independent alternative or substitutional devises and bequests so that her purposes might not fail of execution by the neglect or refusal of one or even two of the associations which she had selected to receive and utilize her bounty. In Jarman on Wills, vol. 2, p. 1645, it is said that it cannot be doubted that "an executory gift, made to take effect on the prior devisee's neglect or refusal to accept the devise or perform some other prescribed act, would take effect, notwithstanding the object of the prior gift never happens to come into existence, such a contingency being implied and virtually contained in the event described." And this Court speaking through the late CHIEF JUDGE ALVEY in Pennington v. Pennington, 70 Md. 436-7, said, "the principle is that as the preceding executory or contingent limitations have failed to arise or take effect (and whether it be by the death of the devisee in the lifetime of the testator or the non-existence of such devisee the consequence is the same) the remainder over will nevertheless take effect, the first estate being considered only as a preceding limitation and not as a preceding condition to give effect to the subsequent limitation, * * * for as was declared by LORD HARDWICKE inAvelyn v. Ward, 1 Ves. Sr. 420; if the precedent limitation, by what means soever is out of the case, the subsequent limitation takes place." For a similar statement of the law on this subject and reference to the cases supporting it see 24 A. E. Encycl. of Law, 453.

Applying the principle, thus clearly stated, to the case before us and treating the two gifts made by the 12th, 13th, 14th and 15th clauses of the will as preceding limitations, as the testatrix doubtless intended them to be, to the three subsequent gifts over made by the 16th, 17th and 18th clauses, and not as preceding conditions to give effect to those subsequent gifts, we have the precise situation to which the principle is intended to apply. The two earlier alternative gifts having failed to take effect (whether by the neglect or refusal of both devisees to accept the gifts offered them or by the non-existence of one devisee and the failure of the other to accept is immaterial), the subsequent gifts over to the Church Home and Infirmary and the two missionary societies take effect.

Both the general intent of Miss Longwell, to devote her entire estate to charitable, religious and educational purposes, and her particular intent to provide, by substitutional gifts over, against a failure of any portion of her plans through the inaction or non-existence of the devisees of her first choice, are so plainly manifested by her will as to render especially appropriate to this case what we have said In re Stickney'sWill, 85 Md. 102. "While in the books there may be found much learning and many nice distinctions in the law relating to conditions precedent and subsequent, yet in the construction of wills we should constantly keep in mind the great object in cases like this, which is to ascertain the testator's intention, and having discovered that, to declare and enforce it if consistent with the rules of law. The question as to whether certain words create a condition precedent or subsequent is generully one of intention, and this is especially so when the condition is annexed to a devise or bequest." * * "Courts are averse to construing conditions to be precedent when they might defeat the vesting of estates under a will." Pennington v. Pennington,supra, "and especially is this so in regard to residuary bequests." Dulaney v. Middleton, 72 Md. 75.

The contentions made on the learned and elaborate brief of the appellants, however sound they may be as legal propositions, should not in our opinion be permitted to control the present case. We have already adverted to as unsound the contention that the first and second gifts made by clauses 12 to 15 inclusive of the will should be considered as conditions precedent to give effect to the limitation over to the Church Home and the two missionary societies, and have stated that in our opinion those earlier gifts should be regarded as preceding executory or contingent limitations of the property given by them within the meaning of the authorities cited by us, and that their failure, for any reason, to take effect did not render inoperative or avoid the subsequent limitation over of the same property.

Nor can we yield our assent to the appellant's next contention that the gifts over to the Church Home and the missionary societies are void as being too remote because of the rule against perpetuities. It is stated in the agreement of facts appearing in the record that all three of those legatees are duly incorporated and capable of taking the gifts made to them respectively under the will if they have been validly given and are sustainable at law. The legacies to the two missionary societies which are foreign corporations having been distinctly given to be used and applied by each corporation for its corporate purposes belong to a class which have frequently been sustained by this Court. Church Extension Socy. v.Smith, 56 Md. 389; In re Stickney's Will, 85 Md. 79; Woman'sFor. Miss. Socy. v. Mitchell, 93 Md. 199.

We also think that the gift to the Church Home and Infirmary "to endow a bed according to the custom and purpose of said institution" was a valid one. The mere fact that it was by the terms of the will to be applied to a particular clear and well defined object plainly within the sphere and function of the institution has been several times held by us not to avoid a gift which would have been good if it had been made to the same institution for its general corporate purposes. Eutaw BaptistChurch v. Shively, 67 Md. 494; Halsey v. Convention of P.E.Church, 75 Md. 275; Hanson v. Little Sisters of the Poor,79 Md. 434; Woman's For. Miss. Socy. v. Mitchell, supra.

The record before us does not in our opinion present a state of facts falling within the appellant's third contention that "if the rejection of a part of a will on account of its invalidity destroys the general testamentary purpose the void and valid portions will both fail." There has been no rejection of any part of the will in this case.

The appellant's final proposition is that a partial intestacy results from the inadequacy of the 18th clause of the will to pass the entire residue of the testatrix estate. The description of the subject of the gift there made is "all the residue and remainder of my entire estate, not hereinbefore devised and bequeathed or made void as aforesaid." This language may be regarded as not being exact or felicitous, but, in view of the evident general intention of the testatrix to devote her whole estate to the worthy objects already adverted to, and the manifest efforts made by her not to die intestate as to any part of her property, the description there adopted by her must be held to have been adequate for the purpose for which it was obviously intended, and to have included all of her estate which had not been disposed of by the previous clauses of her will.

The appellant's brief, creditable as it is to its authors, presents neither any rule of interpretation nor principle of law preventing us from giving full effect to the generous and worthy purposes which controlled the testatrix in disposing of her estate, and we will affirm the decree appealed from.

Decree affirmed costs to be paid out of the estate.