85 Md. 430 | Md. | 1897
delivered the opinion of the Court.
Dr. Burton Randall, surgeon of the United States Army, but residing in Annapolis, died in 1886, leaving a last will and testament dated in 1877. At the time of his death he left a widow, Mrs. Virginia Randall, a son, Alexander B. Randall, and a daughter, Margaret T., who has since married Dr. Joseph M. Worthington.
As the questions for our consideration arise upon a construction of Dr. Randall’s will, it will be necessary to set forth the entire will. It is as follows : “ I give, devise and bequeath all my estates, real, personal and mixed, to my
“First. — To receive, collect and apply the rents, issues and profits of my said estates, in their discretion, to the maintenance and support of my wife and children, and to the education of my children during my wife’s life.
“Second. — And after my wife’s death, to apply the said rents, issues and profits, in their discretion, to the maintenance, support and education of my children, until they respectively arrive at age or marry.
“ Third. —And when all my said children arrive at age or marry, whichever event shall first happen, then to divide the whole of my estates then remaining among my children equally, and the issue of such among them as may then have died — the issue of such children to take the portion of their deceased parent equally among them.
“ And fourthly. — In the event of no child or issue of a child of mine living at the death of my wife, then that the said trustee divide my estates then remaining equally among my brothers and sisters then living and the issue of such as may then have died,' the issue to take the portion of their deceased parent equally among them; and
“ Lastly, in further trust that my said trustees, or the survivor of them, or the heirs, executors, administrators' or assigns of such survivor, may at any time they deem it beneficial and proper to sell and dispose of, and by deed convey any part of my said estates, receive the purchase money thereof, and invest the same in any other property for the benefit of this trust estate hereby created, and to constitute a part thereof, subject to all the provisiohs of this will — or apply such proceeds or any part thereof, for the advancement in life of any of my children after they have obtained age or married, provided such advancement do not exceed the portion such child may be entitled to after deducting the one-third thereof for my wife.”
On the 2 ist of July, 1886, a petition was filed in the Circuit Court for Anne Arundel County, by Mrs. Randall and her children, asking for a construction of the will and for a distribution of the trust estate. This petition was answered by J. Wirt Randall, who had been appointed trustee, in the place of Mr. Alexander Randall and Judge A. B. Hagner, trustees, named in the will. There was no adjudication of the rights of the parties under the will because of the want of proper parties to the proceedings; the lower Court holding that the brothers and sisters of the testator and their issue should be made parties to the case. On the 19th of November, 1895, an additional petition was filed asking for a distribution of the trust estate, and it is from the order dismissing this petition and the petition filed on the 2xst of July, 1886, that this appeal is taken. /
[it is a well settled rule, that in every case in which a will is to be construed the great object is to ascertain from the face of the paper, the intention and design of the testator; which is to be carried into effect, unless opposed by some principle of positive law. Jones v. Earle, 1 Gill, 301. By a careful examination of the language used in the will and looking to the surrounding circumstances at the time of its execution, we gather the controlling intentions in the mind of the testator. They are clearly stated by the appellant, and are these: First, that during the life of the wife the estate should be held in trust for the protection of the wife and the minor children. Second, that after the cessation of
What, then, was the.effect of Mrs. Randall’s renunciation and election to take dower and distribution under the law, upon the interest of the testator’s children under the will ? The rule followed by both the English and American Courts is, that a widow’s renunciation and election to take as against the will is equivalent to her death, unless it contravenes some manifest intention of the testator as expressed by the will. In Clarke et al v. Tennison et al, 33 Md. 92, where by the will a gift was to the wife during her widowhood, with a limitation over to the children upon her death, it was held, in order to carry out the plain intention of the testator, that the will should be construed as giving the property to the children upon the termination of the estate given to the wife, whether that be by her marriage or her death. In Ferguson’s estate, 138 Pa. St. 208, the Court in a well considered case, after stating the reasons for the rule, says, that the law must have a settled and uniform rule, and it is that the widow’s election to take against the will is equivalent to her deathTJ
Some of the authorities that support this view, are the cases of Small v. Marburg, 77 Md. 11; Lainson v. Lainson, 18 Beav. 1; Craven v. Craven, L. R. 4 Eq. 209; Jull v. Jacobs, 3 Ch. Div. 703; Stephenson v. Stephenson, 52 L.
[Applying this rule, then, to the will now under consideration there can be no doubt as to the correct conclusion that should be reached in this case, and that is, the widow’s renunciation and election accelerated the devise and bequest to the testator’s children, and terminated the trust. The application of. this equitable doctrine, gives effect to the manifest intention of the testator, that upon the expiration of the wife’s estate and when his minor children arrived at age or married, whichever event should first happen, then the trust should cease and the whole of his estate be divided among his children equally. It therefore follows from what we have said, that the orders appealed from must be reversed and the cause remanded, in order that a decree may be passed in accordance with this opinion, the costs to be paid out of the trust estate.
Orders reversed and cause remanded. Costs to be paid out of trust estate.