85 Md. 420 | Md. | 1897
delivered the opinion of the Court.
Emile Ducatel, late of Baltimore City, in this State, died in the city of Paris, republic of France, in the month of June, 1894, leaving a last will and testament and certain codicils thereto, all of which have been duly admitted to probate in the Orphans’ Court of Baltimore City and letters of administration with the will annexed of said deceased, were by said Court granted to Ferdinand E. Chatard, one of the executors named in said will, who accepted said trust 'and in due course of administration passed his first account in said Court. The other executor, Alfred B. Durand, named in said will, renounced the trust.
Among the numerous other bequests contained in said will, the testator in the twentieth clause thereof provided as follows:
“ I give and bequeath to my friend, Alfred B. Durand, all my furniture of No. 9 rue Clapeyron, including my library and other books and pamphlets, wines, &c., and in fact all that is to be found in said premises, free of all testamentary expense, requesting him to follow some instructions given in my private letter to him.
By codicil No. 1 to said will the testator bequeathed as follows : “ I bequeath to my friend, Alfred B. Durand, the sum of two thousand dollars, in addition to my household effects in No. 9 rue Clapeyron, and I thank him in advance for his services in closing up my estate as testamentary executor.”
Doubts having arisen as to the construction proper to be placed upon certain parts of said will and of the codicils; and certain of the residuary legatees having objected to the payment of the legacy to said Durand, contending that by a proper construction of codicil No. 1, the said legacy of two thousand dollars was intended by the testator as compensation for the services which Durand was to render in the settlement of the testator’s estate, and having renounced “ all right and claim to letters testamentary on said will, or to act as executor thereof,” he thereby disentitled himself
To the same effect is the law as settled in many well considered cases. The case of Read v. Devaynes, 2 Cox, Ch. 285, relied upon by the appellants in support of their contention, can scarcely be regarded as authority for their claim since we find Sir John Leach, V.-Ch., in delivering the judgment of the Court in Cockerell v. Barber, 2 Russ. 592, says, “ The question is, whether it does appear upon the face of this will that the testator meant that Mr. Palmer, in respect of his trouble as executor, should be confined to the particular legacies which he has here given him. There is only one Judge who has adopted the opinion broadly, that a iegacy given to an executor was to be considered as given on an implied condition, and that he could not take the legacy without taking upon himself the duties of the office. Even the Judge, who expressed that opinion, never carried it the length of a decision; for, in Road v. Devaynes, the point ultimately was not decided. That case in truth was one which might well warrant strong expressions of doubt on the part of the Judge; but those
Decree affirmed with costs.