87 A. 1089 | Md. | 1913
The Safe Deposit and Trust Company of Baltimore, executor of the will of James Crawford Lyon, filed a bill against the next of kin, and heirs of the testator praying: (1) That a decree be passed construing the will and determining who are the parties entitled to receive the estate; (2) that jurisdiction over the settlement of the estate be assumed by the Court below, and that the settlement be completed by plaintiff under the supervision and direction of that Court. All of the defendants answered and from a decree passed appeals were taken by William A. Lyon, by Grace, Elizabeth L. and Mary A. Lyon, and by Mr. and Mrs. May, and Earnest Crawford May, but that of the Mays has been dismissed by them.
The entire will, with the exception of the formal beginning and ending and the appointment of the executor, is as follows:
"(1) After the payment of all my just debts and funeral expenses, I give, devise and bequeath my estate as follows: To my brother, William A. Lyon, $1,000.00/100; to my sisters Elizabeth L. Lyon, Mary A. Lyon and Grace Lyon, three-fourths of the income, share and share alike, and to my mother Elizabeth *517 Lyon, one-fourth of the income for life, and at her death to my sister Virginia May, at present a resident of Pasadena, Cal., after her death to her heirs. If she should die without issue, the one-fourth interest devised to her to go to my surviving sisters, share and share alike.
(2) The income is to be derived from the investment by my executor, the Safe Deposit and Trust Co. of Baltimore, of my money deposited with the Maryland Trust Company — as shown by my account there — the securities belonging to me in a box in the vault of my firm, Lyon Bros. Co., and boxes in the vault of the Maryland Trust Co., my interest in the firm of Lyon Bros. Co., as may appear from the books; the rental of my tract of land at Herring Run, Baltimore County, Md., containing twenty-four acres, and the proceeds of my life insurance policies, which aggregate thirty-two thousand five hundred dollars, in the Mutual Life Insurance Co. of New York, Provident Life and Trust Co., Philadelphia, and Maryland Life Ins. Co., Baltimore.
(3) My securities in the boxes referred to exceed one hundred thousand dollars in value; my interest in the firm of Lyon Bros. Co., July 1st, 1902, was by the balance sheet shown to be $48,715.76, and the land at Herring Run has been appraised at six thousand dollars.
(4) I do not leave my brother more than one thousand dollars, which is to be paid to him in cash in the settlement of my interest in the firm of Lyon Bros. Co.
(5) My sisters are free to devise their interest in the income of the property disposed of under this will as they see fit."
Mrs. Elizabeth Lyon, the mother of the testator, predeceased him. Mrs. May has one child living, Earnest Crawford May, who is of age. Although not so appearing in the will we have for convenience of reference numbered the *518 paragraphs (1) to (5), inclusive. The will was executed in September, 1902, and the testator died on the 30th of January, 1912, without having married, and leaving his brother and four sisters as his next of kin and heirs. An inventory of the stocks and bonds, cash in the house, and in bank, and several trust companies, amounting to $167,366.94 was filed in the Orphans' Court of Baltimore City, and a list of debts due the deceased amounting to $196,909.70 was filed with the bill. The latter included $69,359.70 capital in the firm of Lyon Bros. Co., per statement of December 31st, 1911. There was also an inventory of the real estate appraised at $6,000.00, filed with the Orphans' Court. The money deposited with the Maryland Trust Company at his death was $1,003.12, the securities in the vault of Lyon Bros. Co., exclusive of checks hereinafter referred to, amounted to $14,247.00, those in three boxes in the vault of the Maryland Trust Co. $85,054.00, his interest in the firm $69,359.70, the land $6,000.00, and insurance policies $20,000.00, being a total of $195,663.82. The assets not included in the above classifications amounted to $185,599.92. These are the figures given in the record and although there may be some errors, for our purposes they are sufficiently accurate. The record shows that the insurance policies in the Mutual Life and Maryland Life Companies were paid to deceased in his lifetime, and the amount mentioned above was realized from his policies in the Provident Life Trust Co.
The above figures when taken in connection with paragraph (2) will at once suggest the foundation for the controversy. The Court below decreed that by the true construction of the will William A. Lyon was entitled to a legacy of $1,000.00 and the three unmarried sisters were each entitled to a life estate (subject to the duties of the executor as to the holding and investing as therein stated) in one-fourth of the entire estate, after payment of debts, expenses and the legacy, with power to each to devise and bequeath by will the interest in remainder after her life estate in the share she takes for life, and in the event of any of them dying *519 without leaving a valid will the testator died intestate as to the remainder in any such share, and it will pass to all of the sisters and the brother; that as to the remaining fourth (the mother being dead) Virginia May is entitled to a life estate (subject to the duties of the executor, etc.) and that upon her death, if she dies without leaving a child or descendant, the remainder in such share will upon her death vest absolutely in such of her three sisters as may then be living, or if all die before her then to those entitled by reason of partial intestacy, but if she leaves surviving her a child or descendent the said share will vest in such child or descendent — the said Virginia not having power to will her share. Directions are given the executor and some terms of the decree, we have not set out as they are not particularly involved in this controversy. The will was written in the handwriting of the testator, excepting the formal beginning and ending which were printed — a blank form having been used. It is dated the 16th day of September, 1902.
At the time of his death the testator had on deposit in the Union Trust Company of Maryland $44,085.81, in the First National Bank $4,143.91, in the Continental Trust Company $14,621.11, and in the Baltimore Trust Company $11,252.08, making $74,102.91. There were also checks payable to the order of the deceased and not cashed by him amounting to $10,232.10, and coupons due in his life time and not cashed by him amounting to $755.00, besides $10.91 found on his person.
First. We will first determine what property the will disposes of. Paragraph 1 states: "After the payment of all my just debts and funeral expenses I give, devise and bequeath my estate as follows." It is argued on behalf of the Misses Lyon that that indicates an intention of the testator to dispose ofall of his estate. That of itself, without any qualification in other parts of the will, might be conceded to be indicative of such intention, but it is qualified by subsequent provisions in the will which go on to say: "To my brother William A. Lyon, $1,000.00; to my sisters * * * *520 three-fourths of the income share and share alike and to my mother Elizabeth Lyon one-fourth of the income for life, and at her death to my sister Virginia May," etc.
Then after making some provisions for the fourth of the income after Mrs. May's death, the testator went on to say: "The incomeis to be derived from the investment by my executor" of the money, securities, etc., set out in paragraph (2). After stating in paragraph (3) the value of his "securities in the boxes referred to," his interest in the firm July 1st, 1902, which was the last six months period prior to the making of his will, and of the land at Herring Run, and saying in paragraph (4) that he did not leave his brother more than $1,000.00, which was to be paid to him in the settlement of his interest in the firm, he added paragraph (5): "My sisters are free to devise their interests in the income of the property disposed of under thiswill as they see fit."
Whatever meaning must be given to the expression "the income" in determining whether the sisters took an absolute estate or simply the revenue derived from the investment of it, as we will later do, the property out of which the revenue is to be derived, or which the sisters are to take absolutely, is definately and specifically mentioned in paragraph (2). If in paragraph (1) the testator had said: "To my sisters * * * three-fourths of the income, and to my mother one-fourth of the income for life * * * derived from the investment by my executor of my money deposited with the Maryland Trust Company," etc., etc., — using the precise language of the balance of paragraph (2) — could it be doubted that he had limited the devise and bequest to them to the money, securities and property therein mentioned? And yet is not that what he in effect did? By paragraph (1) he left "the income" as therein stated and by paragraph (2) he directed from what property "the income" was to be derived. He was undoubtedly speaking of the same "income" in both paragraphs. Suppose immediately following the bequest to his brother the will had read: "To my sisters Elizabeth, Mary A. and Grace Lyon three-fourths, share and share *521 alike, and to my mother one-fourth for life, and at her death to my sister, Virginia May, and after her death to her heirs * * * of my money deposited with the Maryland Trust Company, as shown by my account there," and then continued just as paragraph (2) reads, could it be said that he left anything not included in the description thus specifically given? We can not see how it could be seriously so contended, and yet the description of the property is just as specific, — just as inclusive and exclusive — in the will as he wrote it, as it would have been in the case suggested.
The Misses Lyon rely on the beginning of paragraph (1) as sufficient to include all of the testator's estate, but the difficulty is that it is limited by the subsequent provisions. InChamberlain v. Owings,
In Bourke v. Boone,
The Court, after quoting from Rizer v. Perry,
In this case the testator only said: "To my sisters * * * three-fourths of the income," and then in the next paragraph, as soon as he provided for the other fourth of the income, proceeded to say specifically from what the income was to be derived. There was more reason for giving the introductory clause in Bourke v.Boone the effect contended for than there is in this case. The only provision in the will that can be said to place the Misses Lyon in a stronger position than Miss Boone was is the fact that the testator said he did not leave his brother more than $1,000.00, but that may be answered in several ways. In the first place, the next paragraph *524
(5), is "My sisters are free to devise their interest in the income of the property disposed of under this will as they see fit." That is very suggestive of a belief on the part of the testator that at his death he might have property which would not be disposed of under this will. Then in Zimmerman v. Hafer,
The case of Cole v. Ensor,
In Gardner v. McNeal,
There is undoubtedly a presumption that when a party makes a will containing a residuary clause, or other language of similar import, he did not intend to die intestate as to any part of his estate. It is not accurate to say that there is always such presumption whenever a person makes a will, for it is by no means an unheard of thing for one to make a will for the purpose of disposing of some particular article or property and to leave the rest of his estate for distribution under the law. That is perhaps more frequent where wills of personal property are not required to be executed with the *526
same formalities as those of real property, as was the case in this State for so many years. The statement of the presumption has generally been used in the consideration of wills in which there was a residuary clause or something equivalent to it, or at least when property is referred to and the question has arisen as to what interest in it was devised or bequeathed. Dulany v.Middleton,
So it seems to us clear from what appears in this will, and under the authorities applicable to it, that the testator only devised and bequeathed what is included in paragraph (2). Without basing our decision on it, or relying on it for the purpose of reaching a conclusion as to this branch of the case, as we do not deem it necessary to enter upon a discussion of just how far it would be safe to consider his subsequent conduct, the conduct of this testator tends at least to furnish additional evidence that our conclusion was not contrary to what he himself seemed to have in mind, if he be judged by what he did.
When the testator added paragraph (3) he did not say that hisestate amounted to so much, as he would most likely have done if he had thought he was disposing of everything his will could take effect upon, but he said "my securities in the *527 boxes referred to exceed," etc., and then stated his interest in the firm and the appraisement of the land. A circumstance worthy of mention is that the securities found in the boxes in the vault of the Maryland Trust Company amounted to $85,054.00 (the figures given in the record seem to amount to $82,054.00, but the above sum is stated by the executor), that those in the vault of Lyon Bros. Co., as given by the executor, amounted to $14,247.00, making in all $99,301.00. If we add the uncashed checks, payable to the order of the deceased which were apparently in the safe of Lyon Bros. Co., and amounted to $10,232.10, we will have $109,533.10 in the vaults of those two places named in the will. A note included in the securities found in the vault of the Maryland Trust Company is dated October 26th, 1908, and is for $14,000.00, and another in the vault of Lyon Bros. Co. is dated October 6th, 1906, and is for $10,000.00, but there is a memorandum in the record that the latter was probably an extension of the one dated July 6th, 1903, for $10,900.00. Inasmuch as the testator said in his will that "my securities in the boxes referred to exceed one hundred thousand dollars in value" it is a striking coincidence that he had in those boxes at the time of his death securities in the neighborhood of that sum — at least two of which amounting to $24,000.00 were placed in them after the will was made, and while there is nothing to show of what the securities in the boxes consisted when the will was made, it is a fair inference that the two notes were placed there in substitution for some securities paid off or at least taken out.
But that is not all, for we find from the evidence that on December 10th, 1906, he rented for the first time a box from the Union Trust Company — over four years after his will was made — and in that box, not in one of those he mentions in his will, there were found securities amounting to $97,999.00. In addition to that he had on deposit in the Union Trust Company, the First National Bank the Continental Trust Company and the Baltimore Trust Company (none of which are named in his will) $74,102.91. Presumably he *528 knew what he had said in his will, and when it is thus shown that he apparently maintained the amount of securities said in paragraph (3) to be in boxes referred to in paragraph (2) and he had not stated the amount of money deposited with the Maryland Trust Company, and he afterwards (in 1906) rented a box in the vault of the Union Trust Company where he placed securities of such a large amount and opened accounts with other trust companies and a bank in which he made large deposits, those are circumstances which, if they could properly be considered by us in determining whether they are included by paragraphs (2) and (3), would to say the least require some explanation. All of that evidence is is before us without objection, and in part at the instance of the Misses Lyon, but inasmuch as it might be dangerous to permit such acts of a testator after his will was executed to be used for the purpose of reflecting upon his intention, in the construction of his will, and inasmuch as we would perhaps be entering upon a new field, which would require an investigation and discussion of authorities which this opinion, already long, will not admit of, and particularly as we have reached the conclusion announced regardless of this point, we need not determine whether it could be properly taken into consideration, notwithstanding the evidence is in the record without objection.
Second. The property, money and securities shown by the record to be included by the will are as follows:
Amount deposited with the Maryland Trust Co. $1,003.12
Securities in vault of Lyon Bros. Co. (including ten shares of B. O.R.R. Co. common stock, 26 shares Missouri Pacific Ry. Co., 15 shares Maryland Trust Co., common, and 5 shares of some company, preferred and note for $10,000 of the Mays), valued at ........................................... 14,247.00
Securities in the three boxes in the vault of the Maryland Trust Company (set out on pages 28 and 29 and also on pages 72-74 of the record) valued by executor at .............. 85,054.00 *529
Interest of deceased in the firm of Lyon Bros. Co. as appears from the books ..................... 69,359.70
Herring Run tract of land valued at ................... 6,000.00
The three life insurance policies collected since
testator's death .................................. 20,000.00
_____________
Making a total of ........................... $195,663.82
Whether or not the uncashed checks spoken of as found in the safe of the firm can be allowed, we can not determine from the record. If they were placed there as part of the securities to be kept in that safe, they can be allowed, but if they were simply left in the safe until convenient to collect them they should not be. Some of them were apparently for interest or dividends on securities which were not a part of those disposed of under the will. None such should be allowed, unless additional evidence shows that they were so placed in the safe of the firm as to come within the will as construed by us. We have not mentioned the note of Mr. and Mrs. May for $10,900.00 in this connection, as it is intimated that the one for $10,000.00 is a part renewal of it. If that can not be agreed upon, evidence can be taken and if found to be unpaid and still due, that can be added to the securities in the safe of the firm. Unpaid coupons or interest on the securities disposed of by the will go with them, but not the others, unless additional testimony shows they were so placed by the testator as to become a part of the securities, as decided by us. We are also of the opinion that the proceeds of the life insurance policies collected in the life time of the testator must be included, unless it be affirmatively shown that they are already invested in some of the securities included in the will. The testator said "the proceeds of my life insurance policies," mentioning the amount and the companies in which they were held. He must have known that some of the policies were payable in his life time. We think the case of Littig v. Hance,
Of course the amounts drawn out of the firm by the testator between the dates of his will and of his death can not be allowed. The will said "my interest in the firm of Lyon Bros.
Co. as may appear from the books." If there could be any possible doubt in the mind of any one that that did not include money drawn out of the firm in the testator's life time, paragraph (3) ought to remove it, as that shows what he meant by his interest in the firm. Nor can the money in the trust companies (other than in the Maryland) and in the First National Bank be included in what is disposed of by the will merely because those bank books were in the safe of the firm. Unless those books are different from ordinary bank books, they can in no sense be regarded as securities — especially as the testator himself in his will distinguished between money deposited and securities. Even in cases of savings institutions, which usually require the production of bank books or pass books when money is drawn, their possession is not conclusive of the ownership of the person in whose possession they may be found. Murray v. Cannon,
Third. The general rule undoubtedly is that a devise or bequest of rents and profits, interest or income of property passes the entire fund or estate absolutely, in the absence of something showing a contrary intent. Cassilly v. Meyer,
Fourth. But it is argued for William A. Lyon that the will only authorizes the three sisters "to devise their interests in the income," and that it really contemplated a trust of indefinite duration and hence was void under such cases asMission Society v. Humphreys,
Fifth. The income of one-fourth of the investments of property included in paragraph (2) is to be paid to Mrs. May by the trustees during her life, and at her death to her issue, if she leaves issue, and if not to her surviving sisters, share and share alike, but if all of them die before her then to the next of kin or heirs of the testator, as the case may be.
Sixth. The $1,000 left to William A. Lyon is payable to him in cash by the executor in the settlement of the testator's interest in the firm of Lyon Bros. Co.
It follows that the decree will be reversed in part and affirmed in part, and the cause remanded in order that a new decree be passed in accordance with this opinion.
Decree reversed in part and affirmed in part and causeremanded, the costs to be paid out of the estate in the hands ofthe executor. *534