Brown v. Ramsey

7 Gill 347 | Md. | 1848

Magruder, J.

delivered the opinion of this court.

s In the case now before us, the late chancellor, by his order, dated 10th of November 1846, ratified an account reported by the auditor, in which he distributed, in the manner therein stated, a fund then in that court, and brought into it by one of its decrees. Tire appellants allege, that in the distribution of that fund they received a smaller proportion than that to which they are entitled. Whether there be any ground for this complaint depends upon the construction of one of the clauses of the will, which produced this controversy.

It appears by the record, that one Joseph England, by his will, bearing date the 20th day of 9th month 1827, after many dispositions of portions-of his estate, directed a sale to be made of a part thereof when his wife died, and the clause in regard to the distribution of it, which gives rise to the controversy, is in these words: “ After the decease of my beloved wife, I do hereby order and direct that the whole of my estate, real, and personal, and mixed, be sold to the best advantage, either at public or private sale, as my executors, hereafter named, may judge most proper, and the money arising, therefrom to be disposed of as follows : the sum of one hundred dollars, I give and bequeath to the asylum, lately instituted by the Society of Friends near the city of Philadelphia, and after which sum is paid, the residue is to be equally divided and paid to the following named persons, viz.:

To the children of my sister, Hannah Broion, deceased, Sarah, Levi, Deborah, Jeremiah and Slater.

To the children of my sister, Rachel Reynolds, Elisha, Joel, Sarah, Susanna.

To the children of my brother, Elisha England, deceased, George and John.

To the children, of my brother, John England, deceased, Isaac, two shares ; Samuel J. England, and the children of his daughter, Sarah Kirk, deceased, namely, John and Hannah, share and share alike, with, the exception of Isaac’s two shares q//bmnentioned.”

There is no controversy in regard to the amount of the fund. The question is, what proportion is each legatee to receive ? The auditor in the account which the chancellor ratified, assumes that the testator meant that each set of children should receive one-fourth of the residue of the net proceeds, to be divided-between them, (each set of children.) This construetion, the chancellor adopts, and a different distribution- Would give to theparties appealing,. a-larger sum than they thus obtain, hence this appeal.

“ Wills,” it has been said, “are hard to be understood; often, without legal advice, they are unintelligible, and with it, are of doubtful construction. Many testators fail to make themselves understood.” This may be the misfortune of the present-testator,- or of some of the objects of his bounty. With all the consideration we have been able to give to this will, we cannot find in it the intention that this fund shall be distributed as it has-been in chancery.

Some of the testator’s brothers and sisters- were de'ad. Those yet living were'to receive no part of this fund. It appears by the will, that there had been, at least, one sister, {Margaret,) who had a daughter still in being, and yet is not admitted to a participation in this fund. With respect to the brothers and sisters thus spoken of in this clause of the will, and among whose children he distributed the fund, other clauses of the will show, that they had other children than-those here provided for. Nothing like a distribution per stirpes'is so manifest as to furnish an apology for adding or expunging words, which- may be essential in order to make such a distribution. This fund is distributed by one clause of the Will, and the words, “share and share alike, with the exception of-Isaac’s two shares,” are not by any means to be confined to- the last sentence, but seem to be introduced, because when the clause was commenced, it had not occurred to him, that “ equally divided,” was not correct,-if Isaac was to have two shares; or it is very-possible,- that his' determination to give to Isaac two shares was formed after this clause was commenced, and after, perhaps, he had (such is often the case,) excluded some, whom, when he said, “ equally divided,” he intended to name in the clause.

If the testator, in naming.the subjects of his bounty,- had not also mentioned their parents; it is scarcely to be doubted that such a distribution as the chancellor has made of- the fund, would- be contrary to the testator’s declared intent. So if instead of inserting the names of their parents before the objects of his bounty, the clause had said,' “to Sarah, Levi,” &c., naming all of them, (the children of my sister Hannah,) to Elisha, Joel, and other legatees, in the second sentence, (children of my sister Rachel Reynolds,) and in the same way, had given to his other legatees, this certainly would not have indicated an intention, that the fund should first be divided into four parts, and then each of those four parts to be distributed as the chancellor has directed. Yet it is thought this change in the structure of the sentences, would not vary the disposition of the property. Much greater liberties are often taken with the words which are to be found in a sentence of a will, but by no transposition of its words, can this will be made to direct a division of the fúhd, first into four equal parts, and then another'division of each of those parts, into as many parts as are necessary to make the persons named in each sentence, with the exception of the last,'take the same amount.

“Thé residue is to be equally divided,” and for what purpose ? The will does not say, with a view to 'another division, but to be “paid to the following named persons.” One division then, (not two,) is to ascertain the sum, which each of those persons is to receive. We are then to look to the number of persons, who are riamediri' this dlau'se, as objects’ofthe testator’s bounty; we are to notice whether there be any who are to receive more than the'others, and learning from the clause, that Isaac is to receive two shares, or twice as much as any other, and with respect to all the shares, that they are to take “share and share'alike.” that what is given" to them is to be “equally divided” among them, and then by dividing the fund into as many equal parts as there are legatees, counting Isaac twice, we get the proportion of ea,ch; Such, it seems to the court, is the manner in which the testator designed that this fund should be distributed.

The counsel for the appellee, has given us a reference, to the case of Alder vs. Beall, 11 Gill & John., 175. In that case the will was, that the residue of the testator’s estate, should be divided “between'the children,” (not some, but all of them,) “of his sister Ann, and the children (all of them,) of his sister Penelope, and it was such a bequest as the testator might make without any knowledge of the names or the number of them.”' No intention is expressed that the estate be equally divided, or that the legatees should ’take it share and share alike. It was a bequest to the children of one sister, and a bequest to the children of another sister, and one class of children, (although each of that class is to have a- joint interest in so much as is bequeathed to that class,.) is to have no interest in the part given to the other class.

DECREE REVERSED,.AND'ACGOUNT (b). RATIFIED.