64 Md. 306 | Md. | 1885
delivered the opinion of the Court.
In this case the only question presented is one of construction, and that is as to the effect of a certain clause in the codicil made to the will of the late Governor Edward Lloyd of this State.
The will was made in 1829, the codicil in 1834, and the testator died in the last mentioned year, leaving seven children, three sons and four daughters, to whom he devised and bequeathed, after making provision for his widow, a large and valuable estate, both real and personal. To the sons he gave their portions absolutely, but to the daughters their portions he gave in trust.
By the,, sixth clause of his will, the testator devised and bequeathed to his three sons, Edward, James M., and Daniel Lloyd, and the survivors or survivor of them, and the heirs, &c., of the survivor, for and during the life of his daughter, Elizabeth Tayloe Winder, “and no longer,” his farm in Talbot County, called Knightly, on which she then resided, and also the sum of $5000, in special trust and confidence that they should collect and receive the profits and interest thereof, and pay the same over to her, for her sole use and benefit, during her natural life, whose receipts in writing therefor should be a sufficient discharge to the said trustees, her coverture notwithstanding ; and from and after her death, he devised and bequeathed the said farm and money, before given in trust for the benefit of his said daughter, directly, and not in trust, to her child or children, if any, their heirs, &c., equally to be divided between them, share and share alike.
The provisions made by the testator in his will for his other daughters were on exactly similar trusts as that in behalf of Mrs. Winder, being for their respective lives only, with limitations over directly to their children. And after various bequests of his personal estate, the testator, by a residuary clause in his will, bequeathed all the residue of his personal estate to his three sons, equally to be divided between them, share and share alike.
Mrs. Winder is dead, and the appellants in this case are her children; and their contention is, that the $5000, and the proceeds of the sale of the slaves mentioned in the clause of the codicil just quoted, passed to them, upon the death of their mother, in precisely the same manner as did the property devised and bequeathed to them by the will; while on the part of the appellee it is contended, that the additional bequest of money and slaves made to Mrs. Winder by the codicil, was for her life only, without remainder to her children, and that, subject to the bequest for the life of Mrs. Winder, such property passed to the three sons of the testator under the residuary clause of the will. Which of these contentions is correct is the only question presented on this appeal.
The terms of the will and its various provisions are plain and explicit enough; but the codicil was not so skilfully drawn, and is greatly wanting in clear and unambiguous terms to express with clearness and precision the real meaning of the testator. By the will, the devise of the realty, and bequest of the money, to the trustees, were for the life of Mrs. Winder, and no longer, with power to collect the profits and interest, and to pay the same over
It is certainly a well settled principle that the will and codicil are to be construed together as one instrument, and
Order affirmed, and cause remanded.
This Court having directed by its order accompanying the aforegoing opinion, that the costs should “be paid out
By the decree of this Court the cost was adjudged to be paid out of the fund. There is now a question raised as to what fund is to bear this cost, all the funds of the estate, except that in controversy, having been paid out to the parties entitled thereto. In directing the cost to be paid out of the fund, the fund intended to be charged was that in controversy, and none other; that fund being the only one, by the appeal, that was made subject to the decree of this Court.
The appeal was of an amicable nature, having been taken from a pro forma order of the Court below, entered by agreement of the parties. The cause of contention, as will appear by the opinion of the Court heretofore filed, was the question as to what was the proper' legal construction of a clause in the codicil to the will of the testator, and there was at least color for the contention of the appellants; and such being the case, it was deemed proper by the respective parties that the case should at once be brought to this Court for final determination. The appellants failing in their contention, the fund was declared to have passed under the residuary clause of the will. Under the circumstances of this case, the rule in regard to cost would seem to be well established. That rule is, that whenever it is rendered necessary or proper, for determining the rights of parties, that the opinion of the Court should be taken as to the proper construction of the will, and the necessity for snch resort has been occasioned by the doubtful or ambiguous terms employed