Dorsey v. Dorsey, 9 Md. 31

Dorsey v. Dorsey

9 Md. 31 | Md. | 1856

Le Grand, C. J.,

delivered the opinion of this court.

This is an appeal from an order of the oiphans court of Baltimore city, passed the 6th day of October 1855, directing the appellant, as executor of the last will and testament of William H. Dorsey, deceased, to pay over to the appellee a certain sum of money which he has in hand, and also “hereafter from time to time pay in like manner over to said Arabella Dorsey, as her absolute property, the balances which he may hereafter have in hand belonging to the estate of said William H. Dorsey, after deducting proper charges, expenses, and any debts which may be due by said estate, if any there should be.”

The questions involved in the case arise under the following letter of William H. Dorsey, which was admitted to probate as a testamentary paper:

“ Balto.. April 5th, 1854.

R. B. Dorsey, Esq’r,

Dear Sir: — In case of my death, I desire you to act as my executor, and wind up my affairs according to the following directions:

All of my property, both real and personal, I. bequeath to my wife, with the following exceptions, viz: — To my mother and each of my sisters I leave §1250 cash, to be invested for their benefit in some safe and productive stock; six hundred dollars to be applied to the payment of a note for §600 to Johnston & Bros., due August 12, and §110 to pay a note to G. D. Clarke, the jeweller, for a watch: these are all the debts I owe, except small accounts about town. My effects consist of an interest in the houses of Duval, Keighler and Dorsey, and Duval, Rogers & Co., of eight and-a-half per cent, of the profits of each house; the proceeds of two policies of insurance in the New York Mutual, for §7500 and §2500; the furniture of the room in Courtiand street, and some 450 acres of land in Olay, Clinton and De Kalb, counties, Missouri.

The furniture my wife may dispose of as she sees fit, and also all the rest of the property. By the articles of co-partner*38ship, upon the death of a partner, those who remain are bound to wind up the concern as speedily as possible.

In the case of the death of both myself and wife, all the property and effects before mentioned, as belonging to my wife, shall revert to my mother, after paying Mr. Arthur $4000, being the amount, principal and interest, I have received from him. Yours, truly,

W. H. Dorsey.”

On the part of the appellant it is insisted, that the property given by this paper only conferred on the appellee a life estate, whilst on the part of tire appellee, (and as was adjudged by the orphans court by the order appealed from,) it is held that the bequest was absolute without remainder over to any one.

In the view of the case which we have, it is unnecessary we should discuss the two other questions presented in the argument, namely, the right of the appellee to introduce parol evidence to show the circumstances attending and surrounding the testator; and the obligation devolving on the orphans court to invest in some safe and productive fund the interest bequeathed, provided the appellee only takes a life estate.

The case principally relied upon by the counsel for the appellant to support his theory of the case, is that of Smith vs. Bell, 6 Peters,,68. It is a case, in some particulars, analagous to the one now under consideration. The clause in the will which gave rise to the controversy, and which was discussed and decided by the court, was in these words: “1 give to my wife, Elizabeth Goodwin, all my personal estate whatsoever and wheresoever, and of what nature, kind and quality soever, after payment of my debts, legacies and funeral expenses, which personal estate I give and bequeath unto my said wife, Elizabeth Goodwin, to and for her own use and disposal absolutely; the remainder after her decease to be for the use of the said Jesse Goodwin.”

There, as here, the question was, what kind of estate did the wife of the testator take ? The first part of the clause gave her absolutely the property; but the difficulty of interpretation arose from the use of the words, “the remainder after her decease to be for the use of the said Jesse Goodwin.” To *39reconcile these inconsistent members of a sentence, and, at the same time, to give efficacy to the intention of the testator, was the office of the court. This was accomplished by giving some meaning to every member of it. If Jesse Goodwin was to enjoy “the remainder after her decease,” then the first part of the clause must be so construed as to limit the estate of the wife to that of her life. This Chief Justice Marshall considered to be the true meaning of the language employed by the testator, deducing the conclusion, in some degree, from the character of the relation in which the wife and son stood to him. He held it to be natural and proper that the husband and parent should be anxious to give some evidence of his regard and solicitude, both for the wife and the son, and, availing himself of the force of this natural instinct of the human mind, he felt authorised so to interpret the language of the doubtful clause as to give every part of it some meaning, and to the whole that meaning which common sense would impute to the action of a rational being. This is, in substance, the decision of the case; and one, as Judge Marshall conclusively shows, fully justified by those previously had. We adopt the principles of that case and apply them to the one in hand.

The first member of the second paragraph of the paper is in these words: “All my property, both real and personal, I bequeath to my wife, with the following exceptions,” &c., and clearly gives the wife an absolute estate. About this there cannot be a doubt; but, if a doubt were possible, the first member of the third paragraph would remove it. In it he says: “ The furniture my wife may dispose of as she sees fit, and also all the rest of the property. ’ ’ These portions of the paper, taken together, make the meaning of the testator too obvious for mistake. But, it is said, their apparent meaning is controlled by the following, which is the concluding part of the paper: “In case of the death of both myself and wife, dll the property and effects before mentioned, as belonging to my wife, shall revert to my mother, after paying Mr. Arthur $4000, being the amount, principal and interest, / have received from him.”

*40Now the question is, what is the meaning, as here used, of the words, “In case of the death of both myself and wife?”

A few passages from Roper on Legacies will satisfactorily dispose of the inquiry.

At page 406 of the 1st Vol., it is said: “That wherever a testator has defectively expressed the event upon which a legacy shall go over, yet, if his meaning can be discovered from a reasonable construction of the whole will, the court will effectuate the intention when it is practicable.” As to the event to divest a legacy when thus described, “in case of the death of the, legatee,” without annexing to those terms his dying within any particular period, the same author, at the page above given, remarks: “The words in which such a bequest over is expressed, neither have nor by construction have they received a precise and definite meaning, in which they must be uniformly understood. The expression itself is incorrect, as it applies words of contingency to an event which is certain. No person can with propriety speak of death as a contingent event, which may or may not happen. When therefore a testator so expresses himself, the question is, what he means by that inaccurate expression. He may perhaps have had some contingency in his mind; as that the legatee was dead at the time he was making the ivill, or might die before the testator, or before the legacy should be payable, and then the inaccuracy consists in not specifying the period to which the death was to be referred. He might have meant to speak generally of the death whenever it might happen, and then the contingent or conditional words must be rejected, and words of absolute signification must be introduced; and, accordingly, in every instance in which these words have been used, courts have endeavored to collect from the nature and circumstances of the bequest, or the context of the will, in which sense it is most likely this doubtful and ambiguous expression was employed.” On page 407, the author, sustained by the numerous authorities which he cites, thus applies the rule: “It is,” says he, “a settled rule upon this subject, that if a legacy be given to A generally, “and in case of his death” to B, those expressions, unexplained by the *41context of the will, are to be confined to the event of death happening during the life of the testator* so that, if the legatee survive him, the legacy mil immediately vest, discharged of the executory bequest to B; and parol evidence that the testator used the words in a different sense cannot be admitted.”

The clause relied upon by the appellant falls directly within the principle quoted and illustrated in the above citation from Roper. Besides, which, we are of the opinion that the whole character of the paper shows it was the intention of the testator to give an absolute estate to his wife if she survived him, and only to confer an estate on his mother, in the event of his wife not surviving him.

Order affirmed, with costs„