Bourke v. Boone

This appeal comes up from the decision of the lower Court made on a case stated, under Rule 47 of the Equity Rules. On the 13th of April, 1875, Georgie Linstid made and executed her last will and testament, the disposing clauses of which are as follows:

"Item. I give and bequeath to my brother, John Linstid, all the land belonging to me; being my part which I obtained from my father, and adjoining the lands of Thomas Robinson's heirs, and James Stalling's heirs, to have and to hold so long as he may live, and at his death, then the said land, I give and bequeath to my niece, Alice V. Boone, and her heirs forever.

"Item. I give and bequeath to my brother, John Linstid, the rent of all that lot of ground, lying in the city of Baltimore, and described in a deed which I hold, and conveyed to me by W.C. Pitcher and others; which will describe more fully, to have and to hold said ground rent so long as he may live, and at his death, the said ground rent to go to my niece, Alice V. Boone and her heirs forever.

"Item. I give and bequeath unto my brother, John Linstid, my half of all personal property, that we may have, both personal and mixed, to have and to hold as long as he may live, and at his death, I give and bequeath to my niece Alice V. Boone and her heirs forever."

On the same day her brother, John Linstid, also made his will by which he devised and bequeathed to his sister Georgie, all the land on which he lived, as well as all the personal property that he should have at the time of his death.

John Linstid died in the year 1880, without revoking or cancelling this will. Georgie died in 1900. At the time of her death, in addition to the property she had at the time of the execution of her will, she was seised and possessed of the real estate which passed to her under the devise in the will of her brother, John. She left surviving her, as her heirs at law and next of kin, four nephews and one niece, the latter being the Alice V. Boone mentioned in her will. The question submitted to the Court was whether, "the said Georgie Linstid died intestate as to the tract of land which she took under the will of her brother John; or did it pass to the said Alice V. Boone, the remainder-man mentioned in the will of the said Georgie Linstid?"

It is contended that under the provisions of sec. 321 of Art. 93 of the Code, this after acquired property passed under her will to Alice V. Boone. The effect of that section of the Code was stated by JUDGE ALVEY in Rizer v. Perry, 58 Md. 121. In his opinion, he said, that by that section, "the will is simply made to speak as of the time of the death of the testator, and in that respect changed the former rule of construction or operation of wills. But it has never been supposed that it was the design of that provision to pass the real estate of the testator, irrespective of his real intention."

And this Court in its opinion, in the same case, (p. 137) said: "The effect of the decision in Rea v. Twilley, (35 Md. 409), is to reassert the presumption in favor of the heir, and to restate the doctrine, that the intention is the main object of search in the construction of wills." We take it to be clear, (notwithstanding anything in this statute) that what we must ascertain in this case, as in all others for the construction of wills, is to learn what the testator intended; such intention to be collected from her own words; and if we cannot find she has given the estate to some one else, it must go to her heirs.Zimmerman v. Hafer, 81 Md. 357.

Though there should appear an intention to disinherit the heir, yet as was said in the case just mentioned, citing from LORD MANSFIELD, the heir "must inherit, unless the estate is given to somebody else; and the reason is, that the law provides how a man's estate at his death shall go, unless he, by his will, plainly directs that it be disposed of differently." Ridgeley v. Bond, 18 Md. 448.

In Rea v. Twilley, 35 Md. 409, it was said, that the heir is not to be disinherited, "except by express words or by necessary implication." And further, in arriving at the meaning of the testator, we must not confine our intention to parts of the instrument, but "must look at the whole will, and read it in the light of the circumstances in which the testator was placed, and the nature of her property and estate." Stannard v.Barnum, 51 Md. 452. There is no residuary clause in this will, and the several disposing clauses contain specific descriptions of the property that was intended should be passed by them.

The first item devises to John Linsted for life, with remainder to Alice V. Boone, "all the land belonging to me, being my part of what I obtained from my father, and adjoining the lands," etc.

We cannot regard this as a general devise or equivalent thereto, for she proceeds to declare specifically and particularly what it is she intends shall pass. The words, "all my land," do not stand alone, and they must be taken in connection with the words that immediately follow; which are, "being my part of what I obtained from my father," etc. If the words, "being my part" (which merely serve to connect what precedes with words that follow) be omitted, the devise would then be, "I devise all the land belonging to me, which I obtained from my father," etc.

If she had been seised and possessed of other real estate at the time she executed the will, or had employed words sufficient to convey other real estate, the case would not have been like the one with which we now have to deal. But when she grants all her land, and in the same item specifically declares what she meant by all her lands, and the lands so described are in fact all she then had, there is no room for doubt; the words themselves, according to their ordinary grammatical meaning, cannot be interpreted but in one way.

If we regard the circumstances under which the will was made, this construction is fully supported. Her own and her brother's will were made on the same day, and from the similarity of phrase contained in them, were probably drawn by the same person.

John Linstid by his will gave her all the property of which he was seised and possessed, and she gave to him all she then had for life. Is it possible to believe that she then had in her mind the intention of disposing to John his own property, which she could only receive from him at his death? To entertain that belief we would be forced to hold that she intended to give him a life estate in property which she could not devise until after his death. What she must have intended, therefore, was merely to make disposition of what she then had. Her will is effective for that purpose, according to a plain construction of its terms; but to construe it so as to make the property pass under it which she subsequently acquired by the will of John Linstid, would be not only to strain the language employed but to suppose that she could have had it in her mind, to dispose to John Linstid of that which she could not have acquired during his life.

It is contended further that the words of the first item of the will must be read in connection with the introductory clause in which are found the words, "what property it hath pleased God to bless we with in this life, I give and bequeath in manner and form following to-wit," c.

But it is well settled upon authority, and in reason, that it is only when the intention of the testator does not clearly appear from the words used in a clause of the will to be construed, that resort may be had to the introductory clause.Chamberlain v. Owings, 30 Md. 447. And even if these words would indicate an intention not to die intestate, yet they would be ineffective to pass the estate and thereby disinherit the heir, unless the will plainly, or by necessary implication, directed to whom the estate should go. (Supra.)

But these words do not necessarily import a different intention than that we have ascribed to the testatrix. They may indeed be as well understood as having reference to the property she had when the will was made, as to that she was afterwards to acquire. It is true a will ordinarily speaks as of the death of its maker, but that would not be the case, if by a fair construction of its terms a contrary intention was indicated. Hammond v. Hammond,55 Md. 582.

Hence we think it clear from the terms of the will, when read in the light of the circumstances under which it was executed, or without such aid, that the testatrix intended to dispose of only such property as she specifically described and that therefore the real estate devised to her by John Linstid, does not pass under the will, and that she died intestate thereof: The decree will be affirmed.

Decree affirmed, costs to be paid out of the estate.

(Decided January 17th, 1902.)