36 A.2d 551 | Md. | 1944
Manlius K. Morris, of Wicomico County, Maryland, died in 1941 leaving a will and three codicils. His executors, Rosena C. Jones and Willis Morris, have brought this appeal from a decree construing the will and the first and second codicils.
First, we will consider the devise of the home on Ocean City Boulevard. In the will, made in 1931, the testator gave to his daughter, Wilsie, a life estate in the "bungalow home, * * * which consists of about five and a half acres of land, and the filling station situate thereon." He also bequeathed to her $5,000, but, if necessary on account of her mental condition, to be held in trust for her use during her lifetimes, any surplus remaining thereafter to revert to the residue of his estate. His wife died in 1932, and his daughter became incurably insane. In the first codicil, made in 1933, he revoked the devise of the "brick bungalow home," and added it to the residue; but in addition to reaffirming the bequest of $5,000, he directed his executors to use enough of his estate to provide adequately for his daughter's care and maintenance. In the second codicil, made in 1936, the testator, having married again in 1933, withdrew the "brick bungalow home" from the residue, and devised it to his wife, Stella R. Morris, for life.
After making his will the testator erected a weatherboard shop between the bungalow on one side of the property and the filling station on the other. The executors contend (1) that the testator, by making a drain between the bungalow and the shop and planting a row of evergreens along the ditch, divided the property into separate parts; and (2) that the first codicil revoked the devise only as to the land appurtenant to the dwelling, and did not revoke it as to the land appurtenant to the shop and filling station. The object of testamentary construction is to ascertain the intention of the testator from the language of his will, read in the light of the surrounding circumstances at the time it was made, and to give full effect to it unless it is contrary to some established *43
rule of law. West. v. Sellmayer,
In a case in Massachusetts, where a husband left to his widow the use of the "house in which we now live," but it did not appear whether a stable in the rear of the house was so connected with it as to pass under the will, Justice Holmes observed: "The mode of use in the testator's lifetimes does not necessarily establish that the stable is included in the words * * *."Bridge v. Bridge,
If there were any doubt in this case, it would be removed by the fact that the testator gave a complete description in his will of what his home consisted. We think it was unnecessary for him to repeat the entire description in the codicils. Chief Judge Alvey, in construing *45
the will and codicil of Governor Lloyd, declared the established rule in this State that a will and codicil are to be construed together as one instrument and reconciled as far as practicable.Buchanan v. Lloyd,
Secondly, we construe the devise of "the farm known as the Palmer Farm." In February, 1927, the testator bought a tract of 33 acres of land near Powellville, once owned by William H. Palmer; and in June of that year bought an adjoining tract of 160 acres, described in the deed as "Hayfield" or the "William H. Palmer Land." *46
The executors urge that the larger tract is timber land and is not a part of the farm. In the present day, both in England and the United States, a farm in its ordinary acceptation means any considerable tract of land, or a number of small tracts, devoted wholly or partially to agricultural purposes or the pasturage of cattle, but it may and often does include not only cultivated land and pasture land but also woodland. 1 Underhill, Law ofWills, Sec. 303; 2 Jarman on Wills, 7th Ed., 1263. Whether a devise of a farm includes an adjacent parcel of woodland depends upon the intention of the testator as ascertained from the four corners of the will, considered in the light of surrounding circumstances. In one case where the testator owned a farm in the State of Rhode Island, and a wood lot less than a mile away in the State of Massachusetts, it was held that, although he had used wood from the lot, and it appeared that the lot was a part of the farm in some respects, yet the evidence was not sufficiently strong to prove that the lot was actually a part of the farm. Allen v. Richards, 5 Pick., Mass. 512. Whenever it is clear, however, that a tract of land is really a part of a farm, even though it may be woodland or meadow, and even though not adjoining the farm, the Court will hold that it passes with the farm, unless the testator clearly indicates his intention otherwise. Two or more separate tracts, even though not contiguous, can be devised by its popular name, provided that they have been used together and have been commonly known by that name. Any devise of property by name includes the entire tract, generally known by that name, and not merely the smallest portion thereof to which the name might be applied. Gafney v. Kenison,
It is a fundamental principle that where the language of a will is plain and unambiguous, no extrinsic evidence is admissible to show that the testator's intention was different from that which the will discloses. Any evidence intended to modify the language of a will would *47
violate the statute requiring every will to be in writing signed by the testator and attested and subscribed in his presence by two or more credible witnesses. Code, 1939, Art. 93, § 336. However, the rule excluding extrinsic evidence does not prevent admission of evidence which simply explains what the testator has written for the purpose of determining the subject of disposition, the objects of his bounty, or the quantity of interest intended to be given by his will. Walston's Lessee v.White,
Decree affirmed, the costs to be paid out of the estate. *48
