Randall v. Randall

Apr 1, 1897

Versions:37 A. 209

85 Md. 430

1897 Md. LEXIS 64

Briscoe, J.,

delivered the opinion of the Court.

Dr. Burtоn 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 neсessary to set forth the entire will. It is as follows : “ I give, devise and bequeath all my estates, real, personal and mixed, to my *437brother, Alexander Randall, and my nephew, Alеxander B. Hagner, of Annapolis, to be held by them and the survivor of them, and ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍the heirs, executors, administrators and assigns of such survivor, in trust, nevertheless, for the following purpоses, to-wit:

“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 wifе 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 sаid 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 decеased 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 deеm it beneficial and proper to sell and dispose of, and by deed convey any part of my said estates, receive the purchase money therеof, 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 аge 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.”

*438Mrs. Rаndall, the widow, who is now living, renounced all claim under the will, and elected to take dower and distribution under the law. The question, then, is whether upon the widow’s renunciation and receipt of her thirds, the trust estate ought not to be declared to have come to an end and to be distributed between the testator’s two children, both of whom have arrived at age and are married. In other words, whether the devises and bequests in the will to the testator’s children are to be paid at oncе, or are to be delayed to the death of his widow.

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 Judgе 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 prоceedings; 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 additionаl 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 languagе 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 stаted 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. Secоnd, that after the cessation of *439the wife’s estate, it should still be held for the protection of the minor children until all were of age or married. Third, that upon the еxpiration of the estate of the wife and of the minority of the children the trust should cease and the children of the testator should take. Fourth, that the trustees, however, should have a right, if they thought proper, to make at any time during the existence of the trust, even during the life of the wife, an absolute advancement of its рortion of the property to any child who should attain age or become married. Fifth, that upon the determination of the wife’s estate in the event of there remaining no direct issue of the testator living, that then the property should pass to the testator’s brothers and sisters and their issue; in other words, to the testator’s heirs at law and next of kin.

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 testаtor’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 upоn 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. *440Times (N. S.) 576. In the recent case of Boyd v. Sachs et al., 78 Md. 497, where the question upon the construction of a will was somewhat similar to the one here, this Court said: “ The widоw’s marriage was to have the same effect upon all the interests devised and bequeathed by the will as would have been wrought by her death. By the third clause of the will the real estate was given to Daniel, the son, after the widow’s death, and by the fourth clause, it was stated that in case of his death, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍before the widow, it should go tо his sisters and their heirs as tenants in common. The plain meaning of these clauses is that Daniel was to take the real estate on the termination of the widow’s lifе estate (by death or marriage), and that if he should die before such termination, it should go to his sisters.”

(Decided April 1st, 1897.)

[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 acceleratеd 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 оf 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.