78 Md. 461 | Md. | 1894
delivered the opinion of the Court.
The record in this case brings before this Court for review and determination five appeals taken by various parties in interest from the decree passed by the Circuit Court of Baltimore City. The questions presented by these appeals have been argued together, and will be disposed of as hereinafter indicated. The bill was filed for the purpose of obtaining a judicial construction of certain provisions of the last will of Samuel Brady, Sr., late of Baltimore County. The testator executed his will on the first of November, 1862, and died in December, 1871, and now after the lapse of more than twenty years since his death, doubts have arisen as to the construction proper to be placed upon certain parts of his will.
The bill is filed by John W. S. Brady, in his own right, as the surviving administrator with the will annexed of the estate of Samuel Brady, Senior, and as trustee under the several trusts of said will, and as the administrator of the estate of Ann Mary Proctor Brady, deceased, widow of said Samuel Brady, Senior. The defendants are all the other parties interested in the estate of said testator.
The first questions presented for consideration arise under provisions contained in the first and second clauses of the will, which read as follows:
“ Firstly. After the payment of my debts and funeral expenses, I do give and bequeath to my dear wife, Ann Mary Proctor Brady, for and during her natural life, all my estate, real, personal and mixed, with power to receive, take and collect the rents, issues and profits thereof, and the same to dispose of, in all respects, as she may think proper, and with power also to use at her discretion, exchange, dispose of and renew any of my personal goods and chattels requisite to the comfort and
“Secondly. I give and bequeath unto my son, Benjamin Franklin Brady, now in California, and his heirs and assigns forever, the sum of sixteen thousand dollars, ($16,000,) to be paid to him or them within three years after the death of my wife, said sum to be provided for as follows, to wit: Firstly, the cash on hand belonging to the estate, as far as the same will suffice; secondly, the money realized from the payment or sale of promissory notes, and the sale of my Baltimore City stock, and other stocks and mortgages, and other securities, which I hereby authorize and direct shall be sold for that purpose; thirdly, all the money I have loaned my son, John William S. Brady, to be devoted to said fund; and fourthly, the proceeds of sale of my Pimlico Eoad farm, which I also will and direct shall he sold, the whole or so much of the above as may be necessary to be devoted to the payment of the said sum of sixteen thousand dollars, hereby devised to my son Benjamin, his heirs and assigns forever; and this devise is intended to be his entire share of my estate, and to except him as co-heir to the balance.”
After the death of the testator, letters of administration, cum testamento annexo, were granted to John W. S. Brady and Samuel Brady, Jr., who qualified and proceeded with the settlement of the estate. On December 17th, 1872, they passed an account in the Orphans’ Court of Baltimore County, by which the entire residue of the personal estate, after paying debts, funeral expenses and costs of administration, was distributed and delivered over to the testator’s widow, it appears from
The question now arises as to whether the persona] representatives have made such disposition of the residue of the personal estate of their testator as was contemplated by him; and secondly, was the testator’s widow entitled to receive said residue, and treat it as if the items constituting the same, and the title thereto,
The items of account which go to make up the residue of the personal property turned over to the widow by the administrators, as declared by the inventory, list of debts, and the account, are mainly those which the testator had dedicated to the payment of Benjamin’s legacy, and were not intended to be destroyed or consumed by their use or appropriation by the widow. •The terms employed by the testator in creating this legacy not only point out the funds from which it shall be paid, but they indicate in the plainest manner how the funds themselves shall be applied. When he names the first class he says, “the cash on hand belonging to the estate, as far as the estate will suffice;” he does not however refer to any balance remaining unspent or undisposed of, but a fund, the issues and profits of which should go to the widow during life, and at the expiration thereof, the cash on hand at the time of his death to be applied in payment of the legacy so far as the same may be sufficient for the purpose. In no part of this testament is there any reference to a sale of stocks, mortgages, promissory notes and other securities, save that which is to be found in the second clause; and after referring to them, he says, “which I hereby authorize and direct shall be sold for the purpose of supplying a fund from which Benjamin’s legacy shall be paid.” Here he gives a clear and distinct assertion of his wishes and intentions, and it appears to us difficult to misconceive or misconstrue them. The second clause then continues: “Thirdly, all the money I have loaned my son John W. S. Brady, to be devoted to said fund;” and “fourthly, the proceeds of sale of Pimlico Road Farm,” which, however, the testator, after executing his will, sold, and the legacy as to this fund became and was
Again, in the case of Bibbens vs. Polter, L. R., 10 Ch. Div., 733, Emily Bibbens, by her will, gave her sister, Ann Maria Bihbens, all her estate and effects, both real and personal, for her own use and benefit, absolutely. By a codicil made afterwards, and directed to be taken as a part of her will, she added: “After the death of my sister, Ann Maria Bibbens, I give, devise and bequeath all property of mine, which may then be remaining to,” etc. The Vice-Chancellor held, that construing the will and codicil together, the gift to Ann Maria was cut down to a life estate. And in Goudie, et al. vs. Johnston, et al., 109 Indiana, 427, the language of the will was: “I give, grant and bequeath to my wife for her use during her natural life-time, all the rest and residue of my estate, real and personal, not mentioned in item No. 1 of this will, she to have the control and management of the same, and at her death, all of said personal estate remaining,” &c., “shall go to and be equally divided among my grandchildren,” &c. The Court held that the controlling words of the will were, “for her use during her natural life-time,” and that there were no other words of equal power in the instrument. In the case of the Rhode Island Hospital Trust Co. vs. Commercial Bank, 1 N. E. Reports, 20, the Supreme Court of Ehode Island was called upon to construe the will of Mrs. Burnside, by which she devised and bequeathed all her property, real and personal, to her husband, General Burnside, for life, “with full
Durí’kb, O. J., delivering the opinion of the Court says: “We think, however, that where in a will the gift to a first taker is expressly limited to him for life, it is not enlarged into an absolute gift by the mere annexation of a power to him to dispose of or appropriate the fee or capital, at least when the power is only a power to dispose of or appropriate the fee or capital ■during his life; for, as has been well said, ‘An express bequest of an estate for life negatives the intention to give the absolute property, and converts the superadded right oí disposition into a mere power.’ ” Denson, et al. vs. Mitchell and Wife, 26 Ala., 360.
We are constrained to hold in this case that the administrators have wholly misapprehended their duty in transferring to the widow the residue of the personal estate, and in allowing her to use and consume it as she has; but they should, with the restriction we have imposed as to the “ goods and chattels,” have invested said residue, or have retained the investment, as made, if safe and reliable, so as to secure the issues and profits to the widow for life, and the principal after her death to pay Benjamin’s legacy, and thus have fulfilled the design of the testator as expressed in his testament. If the administrators had complied with the provisions of Article 93, section 10, of the Code, they would have found complete protection, and have followed the plainly expressed intention of the testator. The advancement of seven
It results necessarily from whát we have said that if, as we think the records shows, the whole personal estate was worth $19,815.63, and we deduct therefrom the household and farming chattels, valued at $3,656.85, and also the debts and expenses of the settlement of the estate, amounting to $3,646.59, there remains the sum of $12,105.09, subject to be credited with the sum of $7,000 advanced to Benjamin on account of his legacy, there will yet remain due to Benjamin the sum of $5,105.09 on his legacy, for which the administrator must account to said Benjamin.
If the data contained in the record, to which reference has just been made in ascertaining the balance due Benjamin, should, in the further progress of the cause, be found to be incorrect, such errors will be corrected by the Court below, such data being employed for the sole purpose of illustrating the method by which the balance due on Benjamin's legacy should be ascertained.
We think the record clearly shows that the administrators were, at the time they turned the residue of the personal estate over to the widow, aware that the widow was only entitled to the “issues and profits" of the notes, stocks, and securities during her natural life, of which the testator died possessed, as by their account, they ask to be credited with the same “as sole legatee for and
The only questions presented by the appeal of Heleit S. Brady, administratrix of Samuel Brady, Jr., have been correctly disposed of by the Court below. She is entitled to receive the library and the same should be delivered to her. The specific legacy of all the cows of the testator to his son Samuel is lost to said administratrix, for the reason that none of the cows owned by the testator at the date of the execution of his will were living at the time of his death. Kunkel vs. Macgill, et al., 56 Md., 128. The legacy of three good horses to the said Samuel, which were turned over to the widow by the administrators, and by her used or disposed of, and not in existence at the time of her death, was in consequence thereof lost. The horses constituted a part of the “goods and chattels,” which the widow was entitled to use, and in their use she was not restricted by any provision contained in the second clause of the will. The farming implements still in existence at the death of the testator’s widow, and which he owned at the time of his death, were sold by the said Helen S. Brady, and for them she must as administratrix account as part of the estate of her decedent. The farming implements were a specific bequest to him, and only so far as the subject of the bequest is lost or destroyed does the legacy fail.
We come now to the consideration of the questions which arise in the appeals of If. Lewis Naylor, and others, and of Mary E. Sadtler and others. The controversy here turns upon the construction proper to be placed upon the eighth and ninth clauses of the will.
By the eighth clause, the testator says: “Ibequeath to my sous, John and Samuel, their heirs and personal rep
We are of opinion that the testator’s intentions, respecting the disposition of the Caroline street lot have been expressed in terms that require neither argument nor authority to assist in giving to the same a proper construction, which we think the Court below has correctly announced. The lot out of which this rent was created, was by the provisions of the ninth clause, devised in trust for the benefit of testator’s sons, Jefferson and Thomas, and his daughter, said Margaretta, and the subsequent lease of it, did not have the legal effect of an ademption of the devise. The lease was for ninety-nine years, renewable forever, and the reversion continued in the lessor, subject to the conditions contained in the lease. This, of course wrought only a change in the tenure of the estate and the rent reserved passed under the devise contained in the ninth clause.
After careful examination we have found no error in the disposition made by the Court below of other questions argued at the hearing of these appeals, and not discussed in this opinion, and think the Court below has correctly determined the same, but for the reasons herein assigned, we will reverse the decree, in so far as it relates to the construction of the first and second clauses of the will, as stated in the first and second paragraphs of the decree, and as to the other paragraphs of the decree, we affirm the same.
It follows that in No 21, the decree must be reversed with costs, and in Nos. 19, 20, 22 aud 23, the decree must he affirmed.
Decree affirmed in part, and reversed in part, and remanded for further proceedings in compliance ivith this opinion.