Levering v. Levering

| Md. | Jun 24, 1859

Eggleston, J.,

delivered the opinion of this court.

From this record it appears that, in the year 1830, Sarah Brown departed this life, leaving a will, and owning personal property consisting of stocks and leasehold estate, but having no realty.

Her will contains the following provisions:

“I give, devise and bequeath unto my son John Brown, the dividends and interest arising from six shares of Bank of Baltimore stock, as also the dividends and interest on sixty-three shares of Mechanics Bank stock, during his natural life.

“I give, devise and bequeath unto my daughters, Hannah Levering and Sarah Levering, during their natural lives, the dividends and interest arising from the said stocks, after the death of my said son, John Brown.

“I give, devise and bequeath unto Hannah Levering and Sarah Levering, for and during their natural lives, all the rents, issues and profits from all the rest, residue and remainder of my estates, real, personal and mixed, to their own separate use and uses, and in the case of the death of either of them, then, and in that case, the rents, issues and profits of the one so dying shall be equally divided between the heirs of the said deceased; and I will and direct that my executor, ¡hereinafter mentioned, after the death of the said Hannah and Sarah Levering, shall set up and expose to public sale, giving three weeks’ notice in some of the newspapers of the said city, said property so devised to the said Hannah and Sarah, in fee-simple, upon a credit, and the nett proceeds of said sale, after deducting his reasonable expenses, unto and amongst the heirs -and representatives of the said Hannah Levering and Sarah Levering, their heirs and assigns forever.”

Letters testamentary were granted to Philip Moore, the exec•utor named in the will. He died and letters of administration de bonis non, with the will annexed, were duly granted -to the present appellee, Mary Ann Levering.

John Brown survived his mother, and died many years •since.

Sarah Levering departed this life leaving the petitioners, now appellants, with George W. Levering and Eliza B. Levering, her children and heirs at law; which said Eliza has since died, intestate and without issue, leaving the petitioner’s and the said George W. Levering, her brothers and sisters of the whole blood, and the said Mary Ann Levering, her sister •of the half blood, surviving her.

Hannah Levering died leaving five children, who- are all living.

It is admitted, “that the administratrix has distributed among the parties all the estate, except the sum actually in controversy.”

The question we are asked to decide is,-whether, under this Will, upon the decease of the two daughters of the testatrix, the children of each were entitled to one-half of the estate intended to be disposed of by the last clause in the will;, or whether the children of both were to take per'capita?

The counsel for the appellants claim a distribution of the fund j»e?' capita. We think this is not consistent with the intention of the testatrix. Having given to the two daughters, for their separate use, for life, all the rents, issues and profits of all the residue of the estate, the will provides, that “in case of the death of either of them, then and in that case the rents, issues and profits of (he one so dying shall be equally divided between the heirs of the said deceased.” Whatever interpretation may be given to this word- “heirs”—whether heirs-at-law, children, or next of kin—it clearly means, heirs-at-law, children, or next of kin, of the daughter first dying. And as the one who died first left children, they then became entitled to one-half of the rents, issues and profits; the surviving daughter still being entitled to- the other half. This is admitted by the counsel for the appellants. In their printed argument they say: “In relation to the first clause of the bequest, there can be no doubt. It was, obviously, the intention of the testatrix to give to her two daughters, then living, an equal participation in her estate, and she accordingly declares, that each shall have one-half of the rents, issues and profits, during her life, the interest of the one first dying to descend to the children of such deceased.” They, however, then- say: “But, upon the death of both of her daughters, she contemplates a new slate of things and a new disposition.” And they insist, that it is this new disposition which gives the appellants the right to claim a distribution per capita, and not per stirpes.

Should it be conceded that the interpretation insisted upon by the appellants’ counsel, would be correct if the provision made with regard to the decease of the two daughters had -stood alone, still it is not so when viewed in connection—as it must be—with the previous provision, in the same residuary clause, in reference to the decease of one. Having there clearly shown an intention to give to the children of one -daughter the precise one-half of the estate which their mother had, no matter which of the daughters of the testatrix should die first, whether it might happen to be the one leaving the largest or smallest -number of children, it would seem right to .suppose the testatrix had a like intention of giving to the children of each mother the share of the mother, when providing for the decease of both of them.

(Decided June 24th, 1859.)

Should it be supposed that the will of the testatrix created -in each of her two daughters, not. merely a life-estate but a fee, the children of each would be entitled to the same division or distribution of the fund in contest, as they would if the will should be construed as giving to each daughter but a life-estate.

We think the court did wrong in dismissing the petition of the appellants. Although they were not entitled to the full amount claimed .by them, yet they were each entitled to a portion of the fund in dispute.

The decree will be reversed and the cause remanded, for the purpose of having the principles of this opinion carried jnto effect.

The costs are to b.e paid out of the fund, such being the agreement of the parties.

Decree reversed and cause remanded.