55 Md. 575 | Md. | 1881
prepared the following opinion in his life- ■ time, and the same being concurred in after his decease by the Judges who participated in the hearing, it was filed as the opinion of the Court.
The appellants filed their hill of complaint in the Circuit Court of Baltimore City against the appellees, for the purpose of ascertaining and establishing the true, construction of the will of William B. Hammond, late of said city, deceased. They allege that the testator died on or about the 23rd day of May, 1877, leaving a last will, which has been duly admitted to probate in the Orphans’ Court of Baltimore City, and Charles Lewis Hammond, (one of the appellees,) executor named therein, has duly qualified as executor, and obtained letters testamentary thereon.
They allege, “that the brother Rezin mentioned in said clause, died before the testator, and they are advised, and claim that hy the true construction of the above recited clause of said will, which was intended to make provision for said Rezin, the sum of twenty-five hundred dollars is not bequeathed in trust for said Rezin, hut that it is a certain sum left to the said Charles Lewis Hammond, as the consideration of the assumption hy him of the care of said Rezin while living, and burying him when dead; and that the said C. Lewis Hammond, would not he entitled to said legacy, unless he should, after the death of the testator assume said duties, and in case he should accept said legacy, his obligation to perform said offices in favor of said Rezin, would be entirely independent of the amount of said bequest, and would he co-extensive with the life of said Rezin, without reference to the amount that might have to be expended in discharging said offices.”
The complainants claim, therefore, that by the death of said Rezin, before the testator, the said C. Lewis Hammond was prevented from performing the condition on which he was to have said legacy, and is no more entitled to the same than he would have been had said Rezin survived the testator, and the said C. Lewis Hammond refused to assume the performance of the duties towards said Rezin, mentioned in said will.
It is further charged that Charles Lewis Hammond has collected the money mentioned in said above cited
The bill prays that the construction of the will set forth therein, may be declared the true construction, and the executor required to charge himself accordingly with the $2500 and interest, and pay over to the complainants their respective shares.
A copy of the will, duly authenticated, is filed with the bill, marked Exhibit A.
The answer of Charles Lewis Hammond, in his own right, and as executor, was filed, admitting
1st. The execution of the will, the death of William B. Hammond, the granting of letters testamentary to him, the respondent, and the collection of the money.
2nd. That the will contains the clause specifically set forth in the bill of complaint, but denies that the true intent and meaning of the language of said clause is set forth in the hill.
Further answering the respondent says, “ that at the time the testator was preparing to have said will written, he asked the respondent, for what sum of money he would agree to look after and take care of Rezin Hamrnond as long as the said Rezin should live, and bury him at his death, and the respondent in answer thereto, and in. the presence of witnesses, agreed to pérform said services for such sum of money as the said William B. Hammond would devise to the respondent for that purpose. That at the time of this conversation the said Rezin Hammond
The respondent further contends that the testator survived the said Rezin, and although, he was in possession of his faculties and had ample opportunity to revoke said bequest, never did so, and never contemplated it, and it was not in his power to make a valid revocation of said bequest.
That apart from the agreement aforesaid, the devise took effect at the time of the execution of the will, and the respondent was to receive the sum of $2500 irrespective of the time said Rezin Hammond should die, provided the respondent from the execution of said will should look after, take care of and bury said Rezin, which he avers he did. These citations from the bill and answer foreshadow and present substantially the conflicting views of the appellants and appellees, which are set out more in detail in the briefs, and arguments of the counsel for the respective parties.
The appellants contend that the will is to be construed as speaking from the death of the testator, and that as the bequest was given in consideration that he should
The appellee’s theory is, that the will is to be taken as speaking from the date of its execution, although it does not operate until the testator’s death ; and if construed, as speaking from the death of the testator, then the condition being a condition subsequent and becoming impossible, the bequest vested unconditionally in the legatee.
A commission was issued and returned, under which the testimony of the draughtsman of the will and other witnesses as to the declarations of the testator, prior to and at the time of the execution of the will, were taken.
To all of which testimony the appellants excepted, on the ground of irrelevancy.
In order to discover the intention of the testator, it is the duty of the Court to put themselves in the place of the testator, and then see how the terms of the will alfect the property or the subject-matter. 1 Greenleaf’’s Evid., part 11, sec. 287.
In the 5th proposition of Vice-Chancellor Wigram’s rules of interpretation of wills, it is said “for the purpose of determining the object of the testator’s bounty, or the subject of disposition or the quantity of interest intended to be given by his will, a Court may inquire into every material fact relating to the person who claims to he interested under the will.” 1 Greenleaf’s Evid., id., note 1.
Lord Abinger’s opinion in the case of Hiscocks vs. Hiscocks, 5 M. & W., 363, 367, incorporated by Greenleaf in his chapter on the admissibility of parol evidence, as the most luminous exposition and exhaustive essay on the subject, states that “all the facts and circumstances, therefore, respecting persons or property, to which the will relates, are undoubtedly legitimate, and often necessary evidence to enable us to understand the meaning and application of his words.” 1 Greenleaf, sec. 289.
The doubt in this case arises not from any obscurity or ambiguity on the face of the will, hut from the contest as to the rules of construction to be applied, and the class of conditional bequests to which it belongs, whether precedent or subsequent.
The rule of interpretation, as to the period of time from which the will speaks, both in this State and in England varied formerly, with the subject-matter to which it applied. As to real estate, it was supposed to speak (or operate) only on such lands, etc., as the testator held at the date or execution of the will, but as to personalty, it operated upon all he owned at the time of his death. Although, generally, as testamentary instruments they were construed as speaking from the time and event by which they became consummated, the death of the testator, there was no invariable rule, except as determined by the species of property bequeathed or devised. Thus Jar-man, speaking of wills generally, says, “for some purposes a will is considered to speak from its date or execution, and for others from the death of the testator, the former being the period of its inception, and the latter, that of the consummation of the instrument.” 1 Jarman, 292, (3rd Amer. Ed.)
In the summary of his rules for construction, it is said, that a will speaks, for some purposes, from the period of
Adopting the general rule of construction, we proceed to inquire whether the bequest under consideration comes within the class of legacies upon condition precedent, or legacies upon condition subsequent.
It -was said by Willes, O. J., in Acherley vs. Vernon, “that no words necessarily made a condition precedent, but the same words would make a condition either precedent or subsequent, according to the nature of the thing and the intent of the parties.” Willes’ Rep., 153. Gillett vs. Wray, 1 P. Wms., 384; Harvey vs. Aston, 1 Atk., 361; 4 Kent, (5th Ed.) 124, 125; 7 G. & J., 240, et al., cited in note 1, 1 Jar. on Wills, p. 798. The item of the will under consideration is a specific bequest for a particular purpose to be accomplished in futuro, without any disposition over, in case of non-performance. It closely resembles the case of Thomas vs. Howell, 1 Salk., 170, where one devised to his eldest daughter on condition that she should marry his nephew on or before she attained twenty-one years.' The nephew died young, and after his death, the devisee being then under twenty-one, married another.
It was held, that the condition was not broken, its performance having been impossible by the Act of God. 1 Jarman, 808, in Mar.
"Without multiplying examples, which are numerous, the condition annexed to this bequest is both in the collocation of its language and the order of events so clearly posterior to the vesting of the legacy, that we have no difficulty in declaring it a condition subsequent, and its
Decree affirmed., with costs to the appellee.