70 Md. 282 | Md. | 1889
delivered the opinion of the Court.
The sole question in this case is, whether the will of Mary R. Haines, is a valid execution of the power given her in the will of George Haines her husband ? The testatrix died in 1881, and her will does not therefore come within the operation of the Act of 1888, ch. 249, which provides that, “every devise and bequest, purporting to be of all real and personal property belonging to the testator, shall be construed to include
Independent then of the statute, the question as to the testamentary execution of a power, is one always of intention. And whatever may be the apparent conflict in some of the earlier cases, they all agree, that it is not necessary that such intention shall be declared in express terms. All the law requires in this respect is, that it should plainly appear the testator had the power in view and meant by his will to execute it. The leading cases, are fully considered by Best, C. J., in Nowell vs. Roake, 2 Bing., 497; and by Abbott, O. J., in Error, 5 Barn. & Cress. 920, and again in the House of Lords on appeal. 2 Dow & Clark’s Cases, 437. The cases referred to in the able and elaborate opinion of Best, O. J., and the cases later still on the subject, are all collected and reviewed in 1 Sugden on Powers, 371. Without going over-the same ground it is sufficient to say, that a long series of cases, from' Sir Edward Clere’s ease, 6 Coke, 17, to the present time, fully establish, that to constitute a valid execution of a power, there must be some reference in the will to the power; or secondly, a reference to the property which is the subject on which the power is to be executed; or thirdly, unless the provision in the will Avould be inoperative except as an execution of the power. Blake vs. Bunbury, 1 Vesey, Jr., 525; Bennett vs. Aburrow, 8 Ves. Jr., 609; Lowes vs. Hackward, 18 Ves. Jr., 168; Mory, Ex’x vs. Michael, 18 Md., 227; Patterson, et al. vs. Wilson, 64 Md., 197; Balls vs. Dampman, 69 Md., 390.
With these well settled principles to guide us, let us see what are the facts in this case. The testator gives to his wife in lieu of her dower, the sum of three thousand dollars, the profits thereof to be paid to her
The said sum of three thousand dollars remained in the hands of Margaret, the executrix of George Haines till her death in 1879, and afterwards passed into the hands of James E. Haines, her husband and executor. Of this sum, James the executor of Margaret and adm'r d. b. n., c. t. a. of George Haines, upon the order of the Orphans' Court passed in pursuance of George Haines' will, paid to his widow Mary R. Haines, one thousand dollars, and the interest on the remaining two thousand dollars he paid to her during her life. Mary R. Haines died in Pennsylvania in 1887 leaving property belonging to her in her own right amounting to about twenty-three hundred dollars. By her will, she bequeathed to the child and grandchildren of her deceased husband, George Haines, legacies amounting to two thousand dollars. In the fourth clause of her will she gives all the rest and residue of her personal property to her brother Henry and to his daughter Annie, and to Mary Haines. And then comes the clause out of which this controversy has arisen: “The personal property bequeathed to me
Now the question is whether this clause taken in connection with the other provisions in her will, is to be construed as an execution of the power under her husband’s will? -And this depends upon whether the testatrix refers to the property which is subject to the power, with the intention of disposing of it under her will. And in regard to this, there can we think be but one opinion. “The personal property bequeathed to me by my late husband” “remains in the hands of James E. Haines of Rising Sun, Maryland, the husband and executor of my step-daughter Margaret R. Haines,” means, and can only mean the two thousand dollars, the balance of the three thousand dollars which her husband bequeathed to her for life with the power' of disposing of it, and which was in the hands of James E. Haines, executor. In fact there was no other property in his hands upon which the will could operate. There was, it is true, some other personal property which her husband bequeathed to her jointly with his daughter Margaret, but her interest in this property was but a life interest. And then there is some criticism as to the language used by the testatrix, “the personal property bequeathed to me by my late husband,” as if it is said, the property was given to her absolutely. Now in answer to this, it may be said, that she was dealing with property in which she had something more than a mere power of appointment. She was in the first place entitled to the interest on the three thousand dollars during her life, and then she was entitled to so much of the principal, from time to time, as might
We find nothing upon the face of this will to justify the appellee’s contention. Exclusive of the two thous- and dollars in the hands of James E. Haines, the entire property belonging to, and subject to the testamentary disposition of, the testatrix did not exceed twenty-three hundred dollars. And we can hardly suppose she meant to give two thousand dollars of this sum to her stepchildren, thus leaving but three hundred dollars to be distributed to her own brother and relations, knowing at the time, there was two thousand dollars in the hands
The order of the Orphans’ Court distributing the fund in the hands of James E. Haines, in accordance with distribution account Ho. 1, will be reversed, and the cause remanded.
Order reversed, and cause remanded.