4 Md. 335 | Md. | 1853
delivered the opinion of this court.
This is an appeal from an order of the circuit court of Prince George’s county, sitting as a court of equity, refusing to grant an injunction to prevent the sale, under an order of the orphans court of the same county, of certain negroes belonging to the estate of the late Michael B. Carroll.
The bill in substance alleges that, Mr. Carroll being possessed of a large estate, real and personal, made his will in 1837 and died in August 1851. That he specifically devised and bequeathed the principal part of his estate to his wife, who after making a will by which she manumitted the negroes, died in 1853. That subsequently to the making of his will, he sold a portion of the real estate of which he was seized at the time of making his will, and purchased other real estate for which he did not pay, and of which he died seized.
The bill claims because of a request contained in his will, that his negroes should not be sold or disposed of for the payment of his debts, but that provision should be made for discharging the same out. of the other personal property and effects,
The bill also alleges a sufficiency of real estate and personal property other than negroes, to pay all the debts of the estate of Mr. Carroll.
The heirs at law of Michael B. Carroll, claim the lands acquired by him subsequently to the execution of his will, in virtue of that inflexible rule of the common law, which declares that no devise can pass real estate acquired after making of the will, although the will should be express that it should pass.
In opposition to this pretension it is said, that the act relating to devises passed at December session 1849, chapter 229, alters the common law rule and must determine the rights of all parties under the will of Mr. Carroll. That our interpretation of it may be the better understood, we give it entire. The 1st section is as follows: “That every last will and testament executed in due form of law after the first day of June next, shall be construed with reference to the real estate and personal estate comprised in it to speak and take effect as if it had been executed on the day of the death of the testator or testatrix, unless a contrary intention shall appear by the will.” The 2nd section is in these words: “That the provisions of this act shall not apply to any will executed before the passage of this act, by any person who may die before the first day of June next, unless in such will the intention of the testator or testatrix shall appear, that the real and personal estate which he or she may own at his or her death should thereby pass.” The 3rd section provides that the law shall take effect on the first day of June 1850.
Michael B. Carroll made and published his will in the year 1837 and died in August 1851.
On the part of the heirs of Mr. Carroll, it was very ably and ingeniously argued, that the first section ought to be interpreted so as to place in immediate connection the words “after the first day of June,” with the preceding word “executed,” and thus confine the operation of the section to those wills which should be executed after the first day of June 1850; while on the part of ,the complainants it was contended, that the words “first day of June” ought to be understood as fixing the period after which all 'wills, no matter when executed, should receive the indicated construction.
So far as this section is concerned, if we confine ourselves to the grammatical sense of the words of which it is constructed, its interpretation will depend upon the accentuation which may be given to certain parts of it, and on this rests the opposing theories in regard to its true meaning. _ It may be read so as to make it applicable only to such wills as should be executed after the first day of June 1850, or with equal propriety, so as to make its rule of construction applicable after the said first day of June 1850, to a will executed before or after that day
If the act were constituted of the first section we would not experience any difficulty in deciding, that it was intended, and did in fact, operate only on wills executed after the first day of June 1850; and this interpretation would be in consonance with the well established principle, that statutes are not to have a retroactive effect, unless it be perfectly obvious it was the intention of the legislature. But the great difficulty arises out of the second section.
The first section, when taken in connection with the second, has, in our judgment, an operation on devises executed before the first day of June 1850. It is a well recognized canon of interpretation, that if any part of a statute be intricate, obscure or doubtful, the proper way to discover the intent, is to consider the other parts of the act; for the words and meaning of one part of a statute frequently lead to the sense of another, and in the construction of part of a statute, every other part ought to be taken into consideration. Dwarris on Stat., 697.
Keeping this rule in view, the question is presented — what is the effect of the second on the first section of the act ? It declares that “the provisions of this act shall not apply to any will executed before the passage of this act, by any person who may die before the first day of June next, unless in such will the intention of the testator or testatrix shall appear, that the' real and personal estate which he or she may own at his or her death, should thereby pass.”
As we understand this second section it provides for an ex~ emotion of certain wills from the operation of the statute: to-wit, wills made before the 23rd day of February 1850, if the testator or testatrix might die before the first day of June 1850, and in which the intention of the testator or testatrix does not appear that the real and personal estate which he or she may own at his or her death, should thereby pass. In other words,.
From this it follows ; if a party made a will before the 23rd day of February 1850, and died before that day, or, if he made a will before and died after the first day of June 1850, then the statute would operate whether or not his intention was expressed in his will, that all his real and personal estate at the time of his death should thereby pass ; the exemption from the operation of the law as specified in the second section requiring two things : — 1st. That the will should have been made before the 23rd day of February 1850; — and 2nd. That the testator might die between the 23rd day of February and the first day of June. Jn other words, the section con as in existence at the time of the passage of the act whose will was to be embraced by the exemption. guage is not, that shall have died before the first but “who may die’’’’ before that day. The death \yps an event to happen after, and not one which may have tak< fore the passage of the act.
If the construction insisted on by the counsel for the of Mr. Carroll be adopted, then, the second section of the act has no meaning, for if the first section only applied to wills to he executed after the first day of June 1850, there was no necessity by the second section to exempt from its operation any will executed before that day.
But it is urged, that the construction which we have given would, in some instances, operate great confusion and uncertainty. This may be so, but this would be the effect of any of the interpretations which have been placed on the act by those who suggest this difficulty. To avoid such results, the second section would have to be expunged from the act, and this, we
But, whilst we do not concur in opinion with the counsel for the heirs as to the true meaning of the act of 1849, we nevertheless are of opinion the circuit court properly refused to grant the injunction asked.
The bill is filed by the executors of Mrs. Carroll against the administrators de bonis non of Mr. Carroll and his heirs at law. The gravamen of it is, that he specifically bequeathed his negroes to his wife and desired they should not be sold, and that his debts should be paid out of his other estate. That she manumitted them, and that there is other personal and real estate enough to pay the debts due by his estate. Injunction is asked to prevent the sale of the negroes under an order of the orphans court of Prince George’s county, which,, it is alleged, is about to be done. It is also claimed in the bill, that at the time of the will of Mrs. Carroll she must be considered as holding the negroes as legatee and not as executrix, the time specified by law for winding up the estate of her husband having elapsed.
It is contended on the part of the complainants, that the-real estate and personal property, other than the negroes of Michael B. Carroll, ought to be applied to the payment of his debts before the negroes are resorted to. This may or not he so, and in regard to it we pass no opinion, because the question is not before us in this case. This is not a bill filed on behalf of the negroes, but by the executors of Mrs. Carroll, and they must occupy the same position in regard to the creditors of Michael B. Carroll, who are represented by the administrators de bonis non, as she would have- done had the bill been filed by her instead of by them. And if she were the party complainant how would the case stand? Why thus: — Michael B. Carroll died in debt leaving a will, by which his real and personal estate is specifically devised and bequeathed to his wife. His creditors would have the right to proceed against his entire estate for payment, first, however, against the personal as the primary fund. Their rights could not he affected by anything he might request in his will; their claims would attach to his entire estate. He did not manumit his slaves; and, moreover, this is not the case of contribution and marshalling of assets between different devisees and legatees, because here Mrs. Carroll was specific devisee and legatee, and residuary devisee and legatee; she in fact, with but trifling exception, took under the will the whole estate. Had she, immediately on obtaining letters
For these reasons we affirm the order of the circuit court refusing the injunction.
Order affirmed.