83 Md. 104 | Md. | 1896
delivered the opinion of the Court.
Virginia Norwood, a resident of Baltimore City, died on the 26th day of November, 1893, leaving a last will and
The provisions of the will involved in this controversy are, “ I wish my very good and faithful friend, Mr. W. Mozart Hayden, to wind up my small estate and to attend to all necessary business affairs; I will also ask him to hold in trust the sum of ten thousand dollars ($10,000) for the use and maintenance of my father, Lambert Smith Norwood, as long as he shall live. At the death of my father I want the whole amount of the ten thousand dollars paid over, free of trust, to the trustees of the Church Home and Infirmary on N. Broadway, Baltimore, Maryland, to be used for the endowment of a free room or free beds, to be known as the -Virginia Norwood Memorial.”
“To the trustees of-the Chester County Hospital, West
“To Emily Howard, the eldest daughter of John Beal Howard, I leave one thousand dollars ($1,000.”)
It is admitted that the corporations made parties to this suit are those intended by the testatrix, although the names stated in the will are not altogether accurate. Miss Nor-wood’s father died Feb. 19th, 1895, thus surviving her for nearly fifteen months. At the time of his death her estate had not been settled, but the executor provided for his bond and other necessary expenses, and also paid his funeral expenses. His condition at the date of the death of his daughter is thus described by a witness: “ Pecuniarily he was absolutely penniless and dependent upon his daughter for support. He was from age and general debility incapacitated from performing any work.” The will was dated July 16th, 1893, and the testatrix commenced it by giving as a reason for leaving so small an estate that she had spent part of the principal when she felt like doing so for her own benefit and pleasure, “ as there is no one on earth who has the slightest legal claim upon me or anything I possess,” but she evidently recognized the fact that she was under moral obligations to make some provision for her father, and there is nothing in the record to suggest that the sympathy and affection that should be expected from a daughter for an aged and helpless father did not exist. On the contrary, we find that she added to her will, although not a part of it, as it was apparently written after the execution of it, “ I would be glad if my father would consent to go to the Church Home in Baltimore to live. I know he would be well taken care of there,” which is signed “ V. N.” His condition and her care and treatment of him are circumstances to be considered in arriving at a proper conclusion as to what her intention was, which is after all the important and generally controlling guide for Courts in construing
The intention of the testatrix becomes important in this case, as the legacy for the benefit of her father was not a specific legacy, as it was not a “ bequest of a particular thing or money specified and distinguished from all others of the same kind;” nor was it a demonstrative legacy, as it was not given with reference to a particular fund for payment ; but it was a gift of a definite sum to be taken out of her estate without any designation of the part of the estate from which it was to be taken. It was, therefore, in the nature of a general legacy, and the question arises whether it can be gathered from the will that the testatrix intended It to be paid at all events, to the exclusion, if necessary, of •.the other pecuniary legacies. It is undoubtedly true that as .a general rule, when there is a deficiency of assets, all general legacies abate pro rata, but one of that class may be entitled to preference over the others if such be the manifest intention of the testator.
We cannot say that the legacy does not abate with the other two for the sole reason that it was for the benefit of the father of the testatrix, if there be nothing in the will to show such intention. As was said in Towle v. Swasey, 106 Mass, 107, “ The meritorious character of the legatee is not to be considered as affecting it when there is nothing in the language of the will or the character and declared purpose of the gift to indicate an intention.to prefer. The will is to be interpreted by what the testator has written, rather than by what he ought to have written.” But, as the Court proceeded to say, “ The circumstances of near relationship and dependence, though not of themselves sufficient, may, however, be regarded as constituting, in the language of the Lord Chancellor in Miller v. Huddlestone, 3 Macn. and G. 313, 528, ‘an auxiliary reason for allowing such priority where the words used in the will favor the notion of a priority to a sufficient degree.’ ”
But it is contended by the appellants that if such be the case as to the father, upon his death there was no preference in favor of the Church Home, and the case of Towle v. Swasey, supra, is relied on to sustain that position. In that case it was held that there was a preference in favor of a son of the testator to the extent of the income on ten thousand dollars for his education and support during his minority, but that the provision that the principal should be paid to him when he arrived at the age of twenty-one years did not give him such preference, and it abated with other legacies. But the Court said: “ There is nothing in the will which gives that part of the legacy any preference.” That is not the case with the will now before us. It expressly says, that, “ At the death of my father I want the whole amount of the ten thousand dollars paid over, free of trust, to the Church Home and Infirmary,” etc. The meaning of that language does not admit of controversy. Having determined that the testatrix directed the setting apart of the
The only other objection presented by this appeal, is to the part of the decree which directs the payment to the executor of so much of the sum advanced by him for Mr. Nor-wood “ as the interest accrued on the said sum of ten thousand dollars, bequeathed in trust for the said Lambert Smith Norwood, from the death of the testatrix to the date of his death (less his executor’s commission thereon) will avail to pay,” etc. The bonds themselves were not bequeathed, but only the sum of money and no particular bonds or other securities had been actually set apart to this legacy by the executor when Mr. Norwood died. If the estate, as seems to have been the case, was earning interest when Miss Nor-wood died and continued to do so until the death of her father, interest should be allowed between those periods. No objection is made by the appellant to the payment of
Decree affirmed; costs to be paid out of phe estate.