4 A.2d 465 | Md. | 1939
Margaret A. Sluss, at the time of her death in December, 1936, owned a house and lot known as No. 115 Allegany *285 Street, Cumberland, Maryland, which she disposed of by her will as follows: "My real property, designated as number 115 Allegany Street, Cumberland, Maryland, want retained in my estate by my executor and it is my desire that my son William C. Sluss, reside in said dwelling house as his home with his family, and that he permit and provide a room in said house for my sister Mary Canty, which shall be hers and for her use as long as she lives and after the death of my sister Mary Canty, I direct my executor to sell said real property, number 115 Allegany Street either, at private or public sale, in his discretion, and the proceeds derived from said sale shall be divided equally, share and share alike between my sons William C. and Harry G. Sluss."
On June 24th, 1938, George W. Legge, the executor appointed by the will, filed, in the Circuit Court for Allegany County, in Equity, the petition in this case, against Mary Canty, sister of the testatrix, and William C. Sluss and Harry G. Sluss, her sons and only heirs at law. In it, after alleging the death of the testatrix, the probate of the will, the statement of a first executor's account, that William C. Sluss had moved into the property and had made a home there for Mary A. Canty where she was then residing, he further alleged that he had in his hands funds claimed by devisees and legatees, under other provisions of the will, that he as executor was bound to pay taxes and insurance on the property and provide for the upkeep thereof, and that, apart from the retained funds, he had no fund from which to meet those expenses and that it was necessary that the will be construed to determine whether he was authorized to sell the property "while there is a chance that a reasonable sum of money can be realized from said sale." He accordingly prayed the court to construe the will.
The two sons admitted the facts alleged in the petition and joined in the request for a construction of the will. Mary Canty neither admitted nor denied the facts alleged in the petition, but stated that the language of the will needed no construction, and asked that it be dismissed. *286 Upon those pleadings testimony was taken, the parties heard, and at the conclusion of the hearing the court dismissed the petition. From that decree the executor took this appeal.
It is apparent that the language of that provision of Mrs. Sluss' will is not free from ambiguity, and that its meaning is far from clear. Under such circumstances the right of the executor to have it construed by a court of equity is well settled. For as stated in Miller, Construction of Wills, sec. 5: "The construction of a will is, in general, a matter only for the courts of law or equity. The orphans' courts have no jurisdiction save what is conferred by statute, and are forbidden under pretext of incidental power or constructive authority to exercise any jurisdiction not expressly conferred by law; and among the powers conferred by law there is none authorizing them to determine the validity or invalidity of devises or bequests under a will." Littig v. Hance,
The testatrix had the power to defer any sale of the property until some fixed time, or until the happening of some contingency (Alexander on Wills, sec. 1481; Ervine's Appeal,
The testatrix did not directly grant to William C. Sluss any interest of any kind in the property, she merely expressed a desire that he with his family should reside in it as his home upon the condition that he permit Mary Canty to occupy a room in the dwelling. Such a right is in no sense a legal interest in the property which the grantee could alien but a mere privilege or liberty (Warfield v. Gambrill, 1 G. J. 503, 508; 69 C.J. 431, n. 72), personal to the grantee, and differs from the right acquired under a grant or a "use" or of "the rents and profits" of land, which does convey an alienable interest in the property. 69 C.J. 385, n. 33; Jarman on Wills, *p. 741; Underhill onWills, secs. 484, 514; Willett v. Carroll,
The insurance presents a different question. Ordinarily, in the case of a life tenancy, the life tenant would insure his interest, and the remaindermen would insure their interests. But here, strictly speaking, there are no remaindermen, since the directions of the testatrix worked an equitable conversion of the property. 13 C.J. 869, 870, n. 40; Stake v. Mobley,
It has been said that no will has a twin brother, but this particular provision appears to be without even remote relations. The construction given to it cannot be said to be quite free from doubt, but, unless the provision is to be stricken down for uncertainty, a result to be avoided if possible, the interpretation given appears to be that most consistent with its difficult and puzzling language.
It follows that the decree appealed from must be reversed and the case remanded.
Decree reversed, and case remanded for further proceedings inaccordance with the views herein expressed, costs to be paid outof the funds of the estate.