68 Md. 523 | Md. | 1888
Lead Opinion
delivered the opinion of the Court.
The- object of the bill in this case is to obtain from the Court a construction of the will of William H. Dalrjunple, who died in California on the 22d of November, 1881. The testator went to Galifornia from Baltimore in 1849, and ■was, thereafter, a citizen and resident of that State. At the time of his death, and for a number of years before, he lived upon his ranch in Marin County, about twenty miles from San Francisco, where the will in question was executed, on the 21st of August, 1881, and is as follows :
“Dalrymple Ranch, 21si August, 1881.
“This is to certify that in case my present sickness should terminate in my death, it is my will that my ranch*525 and all my personal property shall he inherited by Marie Elizabeth Hatch. Witness my hand.
“Witnesses: W. H. Dalrymple.”
Geo. S. Riggs,
Jno. Hanna,
Geo. R. Tamer.”
“I further will that my four lots, located on Gift Map, number one, and one lot on Dolores, corner of Grove Street, San Francisco, now incumbered by mortgage to Peter Alferitz, when unincumbered, shall likewise go to above named Marie Elizabeth Hatch. Witness my hand at Dalrymple Ranch, this twenty-first day of August, eighteen hundred and eighty-one.
“Witnesses : W. H. Dalrymple.”
Geo. S. Riggs,
Jno. Hanna,
Geo. R. Turner.”
At the time this will was executed and at his death, the testator’s ranch and his interest in these lots, were worth about $1000, and his personal property in California about $100. But he had living in Baltimore two brothers and two sisters, and, on the 30th of October, 1881, after the will was made, and twenty-three days before the testator’s death, one of these brothers, the Rev. Edwin A. Dalrymple, died intestate, leaving quite a large personal estate, the testator’s distributive share of which amounted to about $30,000. Shortly before his death the testator had read in the newspapers a notice of the death of his brother in Baltimore, but there is nothing to show that he knew that his brother had died intestate. His surviving brother and sisters in Baltimore were informed of the death of the testator shortly after it occurred, and were at the same time advised that his will would probably pass to the legatee his distributive share of his deceased brother’s
1st. That this will is a conditional one, and that the sickness therein referred to, did not, in fact, terminate in the testator’s death, and therefore the will is wholly inoperative.
2nd. That under the circumstances of the case the will operates only upon .the personal property which the testator owned at the date of its execution.
1st. As to the question involved in the first proposition, our opinion is, that it has been conclusively settled by- the decision in the California case, and is no longer open for discussion or decision here. According to the statute law of that State, it is expressly provided, that “a will the validity of which is made by its own terms conditional, may be denied probate according to the event with reference to the condition.” 1 Cal. Code, sec. 6281. And with equal explicitness the power and jurisdiction to try and determine any question “substantially affecting the validity” of a will, are vested in the Probate Court. Issues involving such questions must, on request of either party in writing, filed three days prior to the day set for hearing, be tried by a jury summoned in that Court, and if no jurv is demanded, the Court must try and determine the same. 2 Gal. Code, secs. 11,312, 11,313. The issues sub
2nd. The second question was not decided in the California case and it is our duty to decide it now. This part of the case has been argued with exceeding ability by counsel for the appellants, but we find the language of the will too plain, and the rules of construction too stringent, to permit us to yield assent,to their arguments. The testator says in effect, and in terms, I give, “ my ranch and all my personal property” to Marie Elizabeth Hatch. Now with regard to personal property the rule has always been, that a will speaks and takes effect from the death of the testator, and the same rule has long since been made, by statute, applicable to real estate. We therefore take the law to be now well settled that a devise or bequest of all a testator’s real or personal property in express terms, or in any other terms denoting his intent to dispose of all, will pass all the real or personal property which he could dispose of by will at the time of hip death.
Under this rule, we think the terms in this will, “all my personal property’’ are sufficient to pass the testator’s distributive- share of his brother’s estate, unless their
If it be assumed that the will must be read in the light of the circumstances in which the testator was placed, and of the nature, amount and character of his property, still this does not permit the Court to change the language of the instrument, or put words into it which the testator has not himself used, or take out of it words which he has used. The will itself tells us that at the time if was written the testator was suffering from a sickness which he apprehended might terminate in his death, and in that event he willed his ranch, his town lots “ and all his personal property ” to this woman. Looking to outside circumstances, we find the personal property which he had about him and in his immediate possession of very little value, and that up to the time of his death he did not certainly know that he was entitled to any thing from his brother’s estate. But let us suppose his brother in Baltimore had died intestate before this will was written, but that the testator was wholly ignorant of the fact, and had died himself immediately after executing the will; in such a state of case as that would this distributive share have passed by this will ? To this we must give the answer we gave in Stannard vs. Barnum, 51 Md., 451, where after full consideration of the authorities, we said: “It would be a dangerous doctrine to establish, and one without precedent, that where the language of the will is
The testator, though he had heard of his brother’s death, made no change in his will, and we may say that we have found in the testimony in these records, -nothing coming from him, to induce us to believe, much less to decide, that he would have changed it, if he had known the full amount he was entitled to from his brother’s estate, or have made a different one if he had then first made his will.
In Stannard vs. Barnum, the terms of the will, as explained by the context, gave the Court the foundation for its decision. By the residuary clause there construed, the testatrix disposed of “ a balance of money” that may be left in the hands of her executor, and the Court held upon this language and -the context, that she thereby intended to dispose of what belonged to her consisting of money, and did not mean by such words to pass her interest or share in the Barnum Hotel property (real estate,) about which a litigation was then pending, and which- was not
In Dunlap vs. Dunlap, 74 Maine, 402, a distributive share to which the testator became entitled under somewhat similar circumstances, was held not to pass by the residuary clause of his will. There, however, by the clause relied on, the testator bequeathed to his niece “the remainder of the little property I shall have when I depart from this earth, a brief schedule of which bequest folíolos,” and he then proceeds to schedule and enumerate the items and articles of which the “remainder” of his little property consisted. But in the will before us there is an entire absence of any such schedule or enumeration.
A good deal was said in argument as to the relations which existed between the testator and this legatee, but assuming them to have been as reprehensible and immoral as they have been pictured, still such immoral conduct, of which they were both equally guilty, did not deprive him of the power of making a will in her favor, nor her of the right to receive whatever property that will gave her. How far the will may have been the result of
Decree affirmed.
Dissenting Opinion
filed the following dissenting opinion:
I am unable to agree to that part of the opinion of the majority of the Court, determining that the Maryland property passed to the legatee under the will.
I fully agree that the law is correctly laid down in Stannard vs. Barnum, et al., 51 Md., 452, where the Court said:
“That where the language of the will is plain, and the residuary clause, in terms, disposes of the whole estate, and there are no qualifying words in any part of the will” you cannot introduce evidence to show that the testator was ignorant of property he ^then owned, for the purpose of showing that such property did not pass by the will. Public policy would forbid it.
And I equally agree to the further well known principle enunciated in the same case, that in construing any clause in a will, we must look at the whole will, and read it in the light of the circumstances in which the testator was placed, and of the nature of his property and estate.
The testator in this case did not own the property in Maryland at the time of the execution of the will, and therefore no question of ignorance or knowledge at the time of the execution of the will can arise. It (the Maryland property,) can only pass under the well known principle that the will speaks as of the date of the death of the testator, and that after acquired property will pass because the testator is .presumed so to intend by leaving his will unrevoked.
But this presumption may certainly be rebutted by the terms of the will. If the terms of the will are doubtful or ambiguous, then they may be read in the light of the
Now, I think no one could read this will on the day of its execution, and say that the testator intended to include in it any or all after acquired property. So far from that being the case, it was doubtful by the terms of the will whether the property, the testator then owned, would ever pass under that will, as, by its express terms, the will would not have been operative had the testator recovered from the illness under which he was then suffering. Before the will could operate upon the property the testator then owned, and indeed before it could be pronounced to he a will, it was absolutely necessary to prove, aliunde the will, that the testator did not recover from his then illness. The will, standing alone and relying only upon its language, could not he held operative. Before it could operate,-it must be shown that the condition had happened, required by the testator himself, to make it a good will. Evidence must be gone into, and it must be read, if, as a will, it is read at all, “in the light of the circumstances in which the testator was placed,” if the document before us is more than waste paper.
If it was necessary, absolutely necessary, to go into evidence, extrinsic the will, why not go into the whole evidence? Why not read it, in the language of Judge Rastol, “in the light of the circumstances in which the testator was placed,” and if so, I cannot think the conclusion doubtful ?
The testator left his whole personal property to Mrs. Hatch, only on the condition that he died from his then
The testator certainly did not, and could not, intend to include in his personal property, property that he did not then own. He did not, and could not, know at the time he made his will, that he ever would receive any of this Maryland property. It was evident that he did not then intend to include it in the bequest to Mrs. Hatch. If she gets it at all, it will be under the rule of law, that the will speaks as of the day of the death of the testator. But this rule of law must yield, if, from the terms of the will and the surrounding circumstances, we can draw a different conclusion.
I think it is clear from this will that the testator only intended to devise the property he then owned, and the after acquired property did not pass.
(Filed 15th March, 1888.)
