Devecmon v. Shaw, 70 Md. 219

Devecmon v. Shaw

70 Md. 219 | Md. | 1889

McSherry, J.,

delivered the opinion of the Court.

The record now before us brings up for review a decree of the Circuit Court for Alleghany County, construing the will of the late John S. Combs. The opinion filed by Chief Judge Alvey in the Court below. *235is full, clear and satisfactory, and nothing we might say could add to its conclusiveness. We accordingly adopt that opinion as our own. It is, however, necessary to notice a question raised in the argument in this Court. It was suggested that the part of the decree which determines that the daughter of the testator took a fee in the realty devised, and an absolute interest in the personalty bequeathed to her, defeasible upon the happening of the contingencies mentioned in the will, ought to he reversed because prematurely passed, inasmuch as no one of those contingencies has yet come to pass. In support of this the case of Heald vs. Heald, et al., 56 Md., 300, and the case of Woods, et al. vs. Fuller, et al., 61 Md., 457, have been referred to. The application of the doctrine announced by £hese cases depends to some extent upon the circumstances under which it is invoked. In the first of these cases it was said: “ If there is no matter in dispute, and the application is to do nothing more than to declare future rights, in such a case Courts will not entertain jurisdiction.” But as there was an application by a trustee under a will, seeking the aid of the Court “ to instruct him as to his duties and to protect him in the discharge of them,” the hill was entertained, and the Court proceeded to construe the will and to determine the rights of the parties thereunder. The second case arose upon a hill filed by executors, and the Court dismissed it because there were no questions presented apart from the ordinary ones incident to every administration, which the Orphans’ Court was the proper tribunal to pass upon. This last case is broadly distinguishable from the one at bar; and the first one, under the conditions there existing, is an authority sustaining the converse of the proposition contended for by the appellants in this case.

By the will of Mr. Combs there were trustees appointed to collect the rents and income from the real *236and personal estate given to his daughter. ' These trustees are charged with certain duties in regard to the investment and disbursement of the trust funds; and desiring to have the guidance and direction of the Court in the discharge of those duties, they filed the bill now before us. Every person interested, in any way under the will, in the estate rvas made a party; and the question chiefly discussed was whether Althea Louisa Combs, the daughter, took only a life-estate or a defeasible fee under the will. It is true the Court might have declined to consider that question, hut the appellants having themselves sought a construction of this part of the will, in the Court below; and having on this appeal elaborately argued that the conclusion reached by the Circuit Court is erroneous; they are scarcely in a position to ask this Court to reverse that portion of the decree, if it be otherwise correct, merely because it was prematurely passed. They had the undoubted right to insist in the Circuit Court, that the proper time for deciding what estate the daughter took had not arrived ; hut they relied upon no such defence. On the contrary, they subniitted all their rights to the Court, and, by their own contention, invited a construction of that clause of the will. They have done the same thing in this Court; hut they insist here, that if this Court should agree with the Circuit Court's construction, they are entitled to a reversal, upon the ground that the very question which they sought a decision upon ought not to have been decided at all. They have taken in both Courts whatever chance they supposed there was to secure a construction- favorable to themselves. They did this with full knowledge that the contingencies, upon the happening of which, they would, under the will, be entitled to the property, had not occurred; but as the decision was adverse to them on the merits, they ask us, if we concur in the *237Circuit Court’s interpretation of the will, to reverse the decree, because they were wrong in consenting that the Court should, in anticipation of those contingencies, pass upon those merits, and the Court was wrong in acceding to their request. No Court can sanction any such practice as that.

(Decided 8th February, 1889.)

For the reasons set forth in the opinion of Judge Alvey, we shall affirm the decree with costs.

Decree affirmed, with costs.