42 Md. 434 | Md. | 1875
delivered the opinion of the Court.
The appeal in this case is from the decree of the Circuit Court of Baltimore City, of the 18th January, and the order of the 12th February, 18t5, confirming the allotment under the third clause, in the will of John Morrow, made •by the commissioners appointed by the Court for that purpose.
The dispute grows out of the language of the second item in the third clause of the will, devising certain property to his son John, the appellee, in these words, “also, the lot of ground on York Street, about sixty-two feet front, with a depth of about sixty feet, heretofore used by me as a lumber yard, and for storage, together with the old budding stanching thereon, and all lumber and material now stored there.”
Parol testimony was introduced on both sides without exception, and it is agreed, may be considered in the determination of the cause.
It appears that a part of the property belonging to the testator, fronting on York Street forty-eight feet, and running through to Hill Street, some hundred and fifty-three feet, was conveyed to him by Howard and wife, by deed of 18th December, 1851.
The other part being leasehold, fronting on York Street twenty-one feet six inches, with a depth of seventy-eight feet, was purchased by the testator from Brannan, by assignment, bearing date 1st of July, 1863, subject to an annual rent of '16TV2o dollars.
The first lot was used by the testator as his lumber yard, entirely through to Hill Street, until that part thereof fronting on Hill Street, with a depth of ninety feet, was leased to the Mayor and City Council of Baltimore, for a public school, leaving a front of forty-eight feet on York Street, with a depth of sixty-three feet.
After the testator acquired the leasehold lot with an old building thereon, that part of it not covered by the building, was also used in connection with the other, as a lumber yard.
The testator erected two brick dwellings on the lot he first purchased, on York Street, fronting together, some twenty-three or twenty-four feet on that street ; and the residue of this lot, together with the leasehold lot, unoccupied by the house, he used as a lumber yard at the time he made his will.
The entire frontage of both lots on York Street, including thereon the old house and the two new ones, was sixty-nine feet six inches.
He had under his first, purchase hut forty-eight feet fronting on York Street, and after the lease to the city, with a d,epth of sixty-three feet; under his second purchase, he had twenty-one feet six inches, fronting on York Street, with a depth of seventy-eight feet.
If the twenty-four feet with the new brick houses be deducted, there would remain of both lots but forty-five feet six inches, of front on York Street.
The entire frontage, so far as that fact can throw any light upon the subject, is much nearer the description furnished by the testator in his will, than its curtailment by the twenty-four feet covered by the brick houses; which would reduce the frontage on York Street to forty-five feet six inches. As the testator does not pretend to be precisely accurate but describes the lot as fronting on Yorh Street, about sixty-two feet, it is much the more reasonable construction to extend it to the sixty-nine feet six inches, than to reduce it to the forty-five feet six inches. That is quite obvious.
But the testator further describes it as the lot of ground on York Street, heretofore used by him as a lumber yard. It does not appear that he had any other lot fronting on York Street in that vicinity at least. Without any words to limit the devise so as to exclude that part of the lot covered by the two houses, we do not perceive upon what ground or upon what principle of construction the Court could undertake to except that portion of the lot, simply because the two brick houses will be thereby embraced.
Besides, as the testator describes the lot as about sixty-two feet fronting on York Street, its actual front being sixty-nine feet six inches, is not such an unreasonable variance from its true dimensions as to authorize the rejection of the surplus ; and to prevent the testator from devis
There is no rule in the construction of wills forbidding the Court from allowing such reasonable latitude to the description of property, given by the testator, as will carry into effect his purpose.
The main object is to find out from the language of the whole will, and the provisions of the special clause in question, what was the intention of the testator, which is not to be defeated by mere conjecture or speculation, as to his purposes.
Where he has left sufficient margin by language allowing extension or diminution as to the extent of the property, it would be unreasonable to confine it to any precise number of feet. If sufficient to cover the entire lot with its front of sixty-nine feet six inches, effect must be given to it accordingly, in the absence of any other provision contravening such, construction.
It appears that the testator was a man of large property, his real estate amounting to some $64,000 — his personal some $82,000 — that he left a widow and four children, one son, the appellee, and three daughters. He gave his wife one-third of his personal estate absolutely, and one-third of his real estate during her life. lie gave to one of his daughters specifically $500, and to his only son as a special devisee under the third clause of his will, according to the construction placed upon it by the Circuit Court, property valued at $4500.
The residue of his property, including the portion of real estate devised to his wife for life, at her death, was to be held in trust for the use of his four children, and after the death of the last surviving child to be divided amongst his grand-children per stirpes, and the trust to cease.
As the appellee, was his only son, and seems to have been an object of his special bounty this devise to him from his large property, is entitled to a liberal construction in his behalf.
It would be a harsh, unjust and unnatural view to take of the testator’s purposes, to attribute to him, under the circumstances, regarding the amount of his property and the relations of his children, the intention to mutilate or sub-divide his lot on York Street, and deprive his son of a part thereof, because there were tw;o houses thereon, estimated to be worth together some $2000.
He has made use of language sufficient, by a natural construction, to convey the entire lot on York Street; and if it had been his intention to deprive his son of the two houses, he has failed to make it appear by any words in the will, or any circumstances competent to be taken into consideration, that such was his design.
Decree and order affirmed.