65 A. 926 | Md. | 1907
This is an appeal from a decree passed in Circuit Court No. *185 2, of Baltimore City, dismissing the bill of complaint filed by appellant against the executors of Mrs. Grace Ann Greenway, to require them to pay her a legacy of $1500, which she claims she is entitled to under the last will and testament of Mrs. Greenway. It is conceded that there are sufficient funds in the estate to pay the legacy in full, but the executors contend that the appellant is not entitled to it, under the terms of the will, and that certain parol testimony which they claim must be considered by this Court conclusively establishes their contention. We will first examine the will.
(1.) After disposing of certain property under the power conferred on her by the will of her father, the late George Brown, and making some bequests of her wearing apparel, jewelry, silverware and other personal property, she directed and empowered her executors to sell her real estate, as soon after her death as practicable, and to convert into cash such of her personal property as they might deem necessary and, after providing for her just debts and funeral expenses, "to dispose of my estate as follows, viz: to pay the following legacies:" She then gave thirteen legacies to relatives and friends and one to the Woman's Industrial Exchange, and under the same "Item" she added; I desire the respectively designated legacies to be paid the following named parties, if they shall be living at the timeof my death, otherwise to constitute a part of the residuum of my estate, viz; To my nephew Eugene Greenway, fifteen thousand dollars; To my maid Elizabeth McCausland, twelve thousand dollars; To my housekeeper Susan Lowe, fifteen hundred dollars," etc. There are fifteen other legacies immediately following those, varying from one hundred dollars to fifteen hundred dollars, which were given to her seamstress, cook, laundress, coachman, butler, waiter, housemaid, dressmaker, her mother's cook and maid servant and several other persons named. The will is dated April 29th, 1899, and at that time Mrs. Lowe, who is the appellant, had been housekeeper for the testatrix for fifteen or sixteen years but left in October, 1899. The testatrix lived until September 9th, 1903. *186
As the appellant was living at the time of the death of the testatrix it would seem to be too clear for controversy that she is entitled to the legacy left her, as above stated, unless there be something in the will to change, modify or in some way affect that plain language. But after directing her executors to purchase from some responsible insurance company, annuities available one year after her death, for three of her servants, "if they be then living," she concluded this item of her will by the following provision: "I request my executor and executrix to pay in full those legacies hereinbefore provided for the several persons now in my employ and who may constitute myhousehold at the time of my death, as soon thereafter as possible and without regard to the sufficiency of my estate to pay in whole or in part the other legacies and bequests in this my will." The appellees contend, and the Court below decided, that the language italicized by us in the clause last quoted limited the legacies to her employees, previously provided for in the will, to those who were a part of her household at the time of her death, and that inasmuch as the appellant was no longer there and had not been since October, 1899, she is not entitled to the one given her. But it seems to us that such construction is not justified by the language used by the testatrix, under the well established rules of construction applicable to wills. The only limitation upon the right of the legatees to take the legacies respectively given them, used by the testatrix in the clause by which they were given, was: "If they should be livingat the time of my death, otherwise to constitute a part of the residuum of my estate." There is no suggestion that she meant to impose the further condition that they were to constitute her household and still be in her employ at the time of her death. The clause relied on by the appellees speaks for itself as to what the testatrix thereby intended, which evidently was that her executors should pay in full those of her legatees previously mentioned who were in her employ when her will was executed and who constituted her household at the time of her death, as soonas possible after her death and that the legacies *187 left to such persons should not abate, if her estate was not sufficient to pay all the legacies and bequests given by her will. That is the natural and what seems to us to be the plain meaning of the clause.
In Hurley v. Rosensteel, decided at October Term, 1906,
2. The appellees offered evidence of statements made by the testatrix to show that her intention was to only leave legacies to such of her servants and employes as remained with *188
her until her death, and even called the scrivener to place his interpretation on the language used in the will on that subject. If such evidence be permissible, or can be considered by a Court called upon to construe a will, then our statutes in reference to the execution and revocation of wills are worse than useless, for they might induce testators to suppose that their devises and bequests were to be governed by what they said in their wills, whilst under that theory of the admissibility of evidence, they would depend upon the recollection, honesty, understanding and intelligence of witnesses, who might be called upon to testify to statements of testators, either before, at the time of or after the execution of their wills. It ought not to be necessary to cite authorities to show that such evidence is not admissible, for they are too numerous and clear to admit of doubt. InZimmerman v. Hafer,
But it is contended that inasmuch as such evidence is in the record, and no exceptions were filed to it, this Court is required to consider it under the statute, which provides amongst other things that no objections to the admissibility of evidence shall be made in this Court "unless it shall appear by the record that such objection was made by exceptions, filed in the Court from which such appeal shall have been taken." That statute has been applied in a number of cases by this Court and our predecessors, but no case can be found in which it has been extended so far as to require this Court to virtually permit a will to be made for a testator, or to revoke one already made, by parol testimony. By sec. 317 of Art. 93 of the Code, wills executed in this State, disposing of either real or personal property are required to be in writing, signed by the testator or by some one for him in his presence and by his express direction and to be attested and subscribed in his presence by two or more credible witnesses, "or else they shall be utterly void and ofnone effect." By sec. 318 no will, or any clause thereof, can be revoked otherwise than by some other will or codicil in writing, or other writing declaring the same, or by its destruction by the testator or in his presence and by his direction and consent, and the new will, codicil, etc., are required to be executed with the same formalities as the will intended to be revoked. Yet if the theory of the appellees be correct, parol evidence of witnesses, if not properly excepted to could change the entire legal effect of a will, or a clause thereof, as shown by what the testator had said therein, and this Court would be helpless and would be required to accept the parol evidence to the extent of altering the will, although it would be in the teeth of these provisions of our testamentary laws, which are intended to protect wills by safeguards suggested by experience. If all the devisees and legatees mentioned in a will desired to change it, or some part of it, it would be possible under such a theory for some to proceed against the others for a construction of it, take testimony *190 to which no one would file exceptions and thereby require this Court to accept it, in construing the will.
In Sewell v. Slingluff,
In Shreve v. Shreve,
It may be well to add that the case of Struth v. Decker,
It follows that this decree must be reversed.
Decree reversed, with costs to the appellant, and causeremanded. *193