62 A. 364 | Md. | 1905
In 1885, Sarah Jones conveyed by deed to her son, Owen D. Jones, certain property, in trust for the grantor's own use during her life, with power reserved to herself to sell and dispose of the same, or any part thereof as she might see proper, and apply the proceeds thereof to her own use and benefit; and from and after her death, the said property or so much thereof as had not been disposed of by her, should go to her son Owen for life, with power to him to sell the same or any part thereof and to divide the proceeds of the same "equally between himself and each of his children share and share alike." Should he, however, not sell as authorized by the deed, upon his death the power of sale was vested in his wife, Annie Jones, with direction to divide the proceeds of sale "equally between herself and each of her children, by the said Owen D. Jones, share and share alike." And should neither *103 Owen D. Jones, nor Annie E. Jones, sell the property or only a part of it, then it and the remaining part, upon their deaths shall pass to their children, to be "equally divided between them share and share alike, c."
Annie, the wife of Owen, died four years ago, leaving four children, all of whom are still living. Sarah Ann Jones, the mother of Owen, died many years ago. Owen Jones in December, 1904, made sale of the property for the sum of $4,000, and the same is now in Court for distribution among those entitled thereto. Two of the children, it appears have assigned their respective interests in the fund to the appellant. The lower Court decreed that by a proper construction of the deed, Owen Jones and his four children each take one-fifth of the proceeds of sale, and that the trustee was entitled to a commission of two and a-half per cent as compensation. From this decree this appeal was taken.
The terms of the deed indicate a purpose on the part of the grantor to devote the property, first, to the use and enjoyment of her son during his life, and afterwards to that of his wife, if she should survive. But such use was limited only to the property itself or that part of it that remained unsold. So soon as the property was sold, either by the son Owen, or by his wife under and by virtue of the powers conferred by the deed, then a rule of distribution of a different character was imposed. In that event, the person invested with the power of sale was not to be entitled to the entire proceeds, but to only a share; he or she (as the case might be) was to share "equally" with "each of the children share and share alike." This seems to be the clear meaning of the words of the deed; and if that be correct, the decree of the lower Court must be affirmed. Larmour v. Rich,
There was some stress laid at the argument upon the use of the word "between." The deed provides that the proceeds of sale shall be divided, "equally between himself (the appellant) and each of his children," and it was contended that by the employment of this word there was indicated the purpose to require the fund to be divided into two parts, one of which *104 to go to the appellant, the other to be equally divided among his children. But we cannot accept this view. It has been held that the word "between" ordinarily refers to two only and not more, though, as was said in Leary's Appeal, 162 Pa. St. 372, "it is not unfrequently used, especially by the uneducated and colloquially, in the sense of among as referring to more than two objects." To construe it here as indicating that the grantor in the deed intended to be understood as meaning there were to be only two parties to the distribution, one of them being the appellant and the other his children, does violence to the proper import of all the words, when taken together. It absolutely ignores the word "each," as used by the grantor more than once. Her direction is explicit and so clear as to leave no room for doubt, that the division is to be made "equally" betweenhimself and each of his children "share and share alike." Thus the division is to be "equal," and each child and the appellant should take "share and share alike."
Where the language is so clear as in this case, grammatical construction of a particular word and even the authorities applicable to cases not exactly similar to the one under consideration are not important.
The counsel for the appellee has referred to several cases in Maryland, but we do not deem it necessary to discuss them.Brittain v. Carson,
There was no error in the allowance of commissions as compensation.
Decree affirmed.
(Decided November 16th, 1905.) *105
