40 Md. 461 | Md. | 1874
delivered the opinion of the Court.
Whether the appellees, the charitable legatees mentioned in the will of Edward Evatt, deceased, are entitled to receive at once and without delay, the legacies bequeathed to them, or -whether payment is to be delayed until the death of the widow of the testator, is the sole question presented on this appeal.
By the will the testator bequeathed to his wife, absolutely, all his furniture and stock in trade, and authorized her to receive to her own use, during life, the interest on all the Baltimore city stock which he might oAvn at the time of his death; and he also gave and devised in trust certain property, consisting of houses, in the city of Baltimore, and United States bonds to the amount of ten thousand dollars, with directions that the net income therefrom, that is to say, the rents, dividends and interest, should be paid over to his wife, for her sole and separate use, during her life; and after various devises and bequests, all the residue of his estate, of every kind, after payment of debts and expenses of administration, the testator gave and devised in trust, for the sole and separate use of his wife,
The widow of the testator renounced all benefit under the will, and made her election to take dower and distribution under the law. The widow is still living. After her renunciation the real estate was sold by the trustee, and the proceeds of the whole estate were brought into equity for distribution, under the direction of the Court. In this state of the administration of the estate, the appellees made application to have their legacies paid at once, upon the theory, that as the widow had renounced all devises and bequests under the will, the time of payment of such legacies had been thus accelerated, and that they were entitled to receive them presently, notwithstanding, by the terms of the bequests, the legacies were payable only on the death of the widow of the testator.
Now, it is certainly true, that at law, if a party devise to A for life, with remainder to B, and A renounce the devise, or the first devise be void, the remainder is good,
Thus in Fuller vs. Fuller, Cro. Eliz., 423, it was said, as to the second point resolved in that case, that, as the first devise was void, lie in remainder was entitled to take the estate presently; for the first devise being void, it was as if it had never been made; and so if the first devisee refuse, he in remainder shall take the estate presently. The same principle was affirmed in Hodgson vs. Ambrose, Douglas, 331, where it was held, that, if the first estate devised never takes effect, the remainder vests in possession immediately.
But, while this is the general rule, it is modified under certain circumstances, by the application of the principles of equity, where it is apparent that the event producing the acceleration of the time for vesting the remainder in possession, is not contemplated by the will, and' the result produced would contravene the intention of the testator. In this case, it is manifest that it was never contemplated by the testator that the legacies now claimed as payable presently, should be paid before the death of his widow. The renunciation by the widow is an event not provided for by the will; and as by that event a certain portion of the principal or corpus of the estate is withdrawn from the trust intended for the benefit of the children of the daughter and sister of the testator, it is but equitable that they should be indemnified or compensated as far as can be, by the appropriation of the benefit renounced by the widow. This is not an application to compel an election, but to have declared the effect of an election already made; and, in such case the general and well established principle applies, that a Court of Equity will assume jurisdiction to sequester the benefit intended for the refractory donee, in order to secure compensation to those disappointed by the election. 2 Story’s Eq. Jur., sec. 1083.
The case of Darrington vs. Rogers, 1 Gill, 403, has been much relied on by the appellees, and also by the Court below, as being conclusive against the application of the equitable doctrine just stated, to a case like the present. But we do not so understand that decision. There, the question was, upon the terms of the will, whether the separation and division of the testator's estate into moieties should be disturbed and re-adjusted in consequence of the renunciation of the widow; the Court holding, that, as the devise to the wife in lieu of dower was but a temporary interest in one of the moieties, and that devised to the children of the testator, upon her renunciation, the entire moiety passed to the children under the devise in their favor, subject only to the rights of the widow, in virtue of her election; and that consequently, no part of the interest devised or bequeathed to the wife fell into the .general residue or remainder of the estate, which, by express direction, had been antecedently divided, and of one of which divisions the interest renounced formed a part. Indeed, the circumstances of that case were not of a character to call strictly for the application of tlie equitable doctrine now invoked, and it is not clear that the case was decided with any particular reference to it.
The case of Clark vs. Tennison, 33 Md., 85, also relied on by the appellees, presented a very different question from that presented in this case. There a construction was placed upon the will to effectuate the plain intention of the testator. He had given his property to his wife during her widowhood, with a limitation over to his children after
The order appealed from will be reversed, and the cause remanded for further proceedings; the costs of the appeal to he paid out of the fund.
Order reversed, and cause remanded.
