87 Md. 273 | Md. | 1898
delivered the opinion of the Court.
This suit was instituted to procure a construction of the following clause in the will of the late Rev Dr. Henry V. D. Johns:
“ Aware of the liability to loss of their patrimonial estates by females through injudicious marriages or mismanagement, I hereby appoint my two eldest sons, to act as trustees of that portion of my estate which I have devised to my two daughters. This property I hereby entrust to my two eldest sons * * * to be sacredly kept and safely invested, for the sole and exclusive use of my two daughters, Fidelia and Lavinia, and for their children, if they marry, and have descendants. If they should not many, or marry and die without child or children, my will is that this portion of my estate hereby entrusted to my sons, for the benefit of their sisters, should at their death, revert to my children who may survive, or to the descendants of their children, and be equally divided between them.” The testator died in 1859, leaving six children surviving him, namely, Dr.
In reaching this conclusion, exclusive controlling effect was given by the Circuit Court to two well-established general rules of construction : First, that where a life-estate is created, and a gift is made over to survivors, the period of survivorship must be referred to the death of the life-tenant—or first legatee—and not of the testator ; and second, that where words are used in themselves meaningless, and which cannot be corrected by alteration, addition or transposition, upon any sound principle of construction, they shall be altogether rejected. Applying these rules, it was concluded : First, that the words “ to my children who may survive” if they stood alone, would clearly mean only those who survived Lavinia; and second, that the succeeding words, “ or to the descendants of their children to be equally divided between them,” are meaningless, without taking undue liberties by way of alteration, and therefore cannot qualify the preceding words, but must be rejected in construing the will, and for this reason the children of Montgomery must be excluded from the bounty of the testator. It is too clear for controversy under the decision in Reiff v. Strite, 54 Md. 303, and other Maryland .cases, that in the absence of the words “ or to the descendants of their children, &c.”—or of any other qualifying words,
In Commercial Building Association v. Mackenzie, 85 Md. 136, the Court said : “ When a written instrument of whatever character is brought before a Court for adjudication, the first inquiry must be directed to its meaning. ■ Until this is ascertained every step in the proceeding, must be futile and useless * * *. No general rules have been devised, which are adapted to all cases, and it is not possible, in the nature of things, that any can be devised. Courts must ascertain the meaning of written instruments when it is possible for them to do so, seeking the aid of all rational methods of interpretation.” These utterances maybe properly repeated and emphasized here, as announcing the primary rule in construing written instruments; and it must be borne in mind in this connection, that “ the predominant idea of the testator’s mind when discovered, is to be heeded, as against all doubtful and conflicting provisions, which might of themselves defeat it; and that the general intent, and the particular intent being inconsistent, the latter must be sacrificed to the former.” Schouler on Wills, sec. 476.
We think it is manifest, from an analysis of the will of Rev. Dr. Johns, that the predominant idea of the testator was equality of bounty to all his family, and that while he selected and designated the particular property each member of the family would receive, the scheme of his will was practically to dispose of his estate, as the law would have done if he had died intestate. There are numerous indications, we think, of this purpose.
First. While disposing of a very considerable estate, ample to have warranted an absolute devise or bequest to his wife, suitable to her needs and social station, had he deemed this the proper mode of provision, he gives her absolutely, only his dwelling, horses and carriage, all of which were specially appropriate for her personal use and comfort; and then gives her for life only, one-third of the net income of his
Second. The library, which is so usually left intact to such one or-more of the children, as may be best qualified for its enjoyment, is bequeathed among all his children, after their mother had selected what she wished.
Third. The devises to his two sons, John and Henry, being, as he states, disproportioned to the devises to Montgomery and James, he therefore required John and Henry to pay to Montgomery and James $2,000 to equalize them.
Fourth. In his codicil, having concluded that he had overvalued the lands devised to John and Henry, and had undervalued those devised to Montgomery and James, he revoked the above legacy of $2,000 because, as he said, he was desirous of doing impartially by all his children.
Fifth. Both in the will and codicil, he gave to his executors full discretionary power to sell and reinvest “ all such stocks, ground-rents, &c., as may need such change, with a view to equalize the apportionments and to make just and fair portions to each of my children.”
Finally. Fearing the loss by his daughters of their patrimonial estates, he made the provision we are now considering, and it seems to be plain that in this, he had a two-fold purpose, viz., first, to prevent the wasting of their estates by their husbands if they should marry, and the consequent disherison of their issue ; and second, in the absence of such issue of- theirs, to prevent the diversion of their estates from his own family. We think he intended these portions of his estate, in any event, to go to his descendants, preferably, ato such of his descendants as traced title through his daughters, in order to preserve that absolute equality of bounty, which we have found to be the predominant idea of his will, and in the absence of issue of these daughters, then to his other descendants, no matter what degree should represent these descendants at the daughter’s death. Though the word family is not used in this will as in Taylor v. Watson, 35 Md. 534, yet the idea of the family, we think,
We shall now endeavor to show, that as great, if not greater violence is done to the language of this will, by the rejection of the clause under consideration, as will be done by so altering its language, as to carry out what we have said is the predominant idea of the testator. All that is necessary for this purpose is that the word “ or ” be construed “and,” and the word “their” be changed into “ my.” The construing of “ or ” as “ and,” and the converse, both in wills and deeds, is freely admitted by Courts, whenever it is held to be unequivocally clear that the true general intent will thereby be given effect, and if we are correct in'our analysis of this will, the change of“ or” into “ and ” becomes an imperative duty. To change the word “their" into “my,” is, however, a stronger measure, a higher exercise of judicial authority, and can only be justified by a clear explanatory context, as we think is here found. “Wherever it is apparent not only that the testator has used the wrong word, but also what is the right one, the alteration is warranted by the established rules of construction.” 1st Jarman on Wills, 6th ed. 504, and this author cites the case of Doe v. Gallini, 5th B. & Ad. 621, in which the
Having construed “or” as “and,” the devise cannot be substitutional, in the sense held by the Circuit Court, viz., that the descendants of the testator’s grand-children are substituted only upon failure of all testator’s children—and when “ their” is changed into “my,” upon the views and authorities we have stated, all difficulty as to whether the distribution is to be per stirpes or per capita, vanishes, since it is then plain that the descendants of testator’s children represent the deceased parent, and necessarily take per stirpes (or by representation). They take, under the altered, language of the will, by virtue of the reverting directed by the testator to his children then surviving, and to the descendants of his (my) children ; and the words, “ to be equally divided among them,” being properly referred to this reverting, imply an equal division, not between the individuals who take, but between the respective stocks that take, viz., the surviving children, and the deceased children. In Jarman on Wills, page 1051, it is said that generally where a devise or bequest is made to a person and the children of another person, they take per capita, and not per stupes; but that this mode of construction will yield to a very faint glimpse of a different intention in the context, and he cites in support of this text, Alder v. Beall, 11 G & J. 123, which fully sustains him, as does the later case of Levering v. Levering, 14 Md. 38. The statement of Jar-man is also recognized in Brittain v. Carson, 46 Md. 186, though the general rule was there applied, only because
It follows from what we have said that the decree must be reversed and the cause remanded for the purpose 'of having the principles of this opinion carried into effect.
Decreereversed and cause remanded, tlie costs above and below to be paid out of the estate.