45 A. 190 | Md. | 1900
This appeal brings before us for construction the will of the late Peter B. Small of Washington County in this State.
The particular paragraph on which the present controversy hinges is as follows: "I hereby give, devise and bequeath to my sons, Albert Small, Peter B. Small and Harry D. Small * * * all and every, my estates and property, personal and mixed, c., * * * in trust to take and hold the same, and to control and manage in their discretion all and every part thereof and to sell and dispose of the same and to reinvest the proceeds thereof for the sole use and maintenance, after the payment of my debts, of my wife, Sarah B. Small, for and during her life * * * * and after the death of my said wife, to divide and distribute the same * * * equally among my children, Albert Small, Charles A. Small, Mary A. Small, Peter B. Small and Harry D. Small, or the survivors of them, and the heirs of any of them who may meanwhile have died, the children of any one of them taking under this devise the parent's portion." * * * * * The testator left surviving him a widow, Sarah B. Small, and five children named in his will. The widow died in March 1899, and three of the children, Albert, Charles A, and Harry D. all predeceased her. She left surviving her only two children, namely, Mary A. and Peter B. Albert Small died intestate leaving surviving him two children. Charles Small died intestate and unmarried and Harry D. Small *563 died unmarried but testate. All the facts necessary to raise the question presented by this appeal have been either admitted or are contained in the agreed statement of facts, but it will not be necessary further to rehearse them, except to say that Albert Small conveyed and released to his co-trustees, all his interest in his and their father's estate to secure the payment of a large indebtedness to that estate, for the benefit of the heirs at law and devisees of his father other than himself, and that Harry D. Small by his will devised and bequeathed all his estate to his sister, Mary A. Small. The bill was filed by the administratorscum testamento annexo of Peter B. Small, Sr., the testator. Their contention is that the assignment of Albert as well as the will of Harry D. is effective to convey their respective interests in their father's estate under his will, upon the theory that the respective shares devised and bequeathed by their father's will vested upon the death of the testator, while the contention of the defendants who are the children of Albert Small is that under a proper construction of the will the respective shares of Albert and Harry never vested in them for the reason that they both died before the death of their mother the life-tenant. The question, therefore, and the only one we have to consider, is, when did the estate or interest devised and bequeathed by the will of Peter B. Small vest in his children? If such interest vested upon his death, then Albert had such a vested estate as passed under his deed, and Harry had such a vested estate as passed by his will to his sister Mary B. Small, and the result would be that the estate of the testator, Peter B. Small, Sr., now in the hands of the plaintiffs, would be divided between the two surviving children Mary A. and Peter B. Small, Jr., and the children of Albert Small — the latter, however, taking the share of their father, subject to their father's liabilities, and Mary A. taking Harry D.'s share under his will in addition to her own share as a child of the testator. But if the other view be correct, namely, that by the true construction of the will the estate devised to *564 the children was contingent upon their surviving to the period of distribution, that is to say, the death of the life-tenant, the same parties would share in the distribution of the estate in equal proportions. The one-fifth shares which would have gone respectively to Charles and Harry if they had survived the life-tenant, or to their respective children if they had left any surviving her, go into and form part of the estate or common fund to be divided, and the children of Albert take his share free from his liabilities. The Court below passed a pro forma decree adopting the latter construction and thereby held that the devises and bequests to the five children of the testator were contingent upon their surviving the death of the life-tenant, which is made the period of distribution. We have thus fully stated the contentions of the respective parties and the facts upon which they depend, and we will proceed to consider the law applicable to them.
But before discussing the question involved, in the light of adjudicated cases, which, of course, when compared to the language of the testator used in his will are of only secondary importance in discovering his true intention, let us examine the provisions of the will itself. As we have already seen, the testator devised to trustees the whole of his residuary estate "to take and hold," "to control and manage in their discretion," and "to sell and reinvest the proceeds thereof for the sole use and maintenance of" his wife during her life. So long, therefore, as she should live his whole estate was to remain in the hands of the trustees for the sole purpose of maintaining her, and in order the better to promote that object he gave to his trustees such powers as necessarily vested in them the legal estate until the period of distribution should arrive and have been completed.Long v. Long,
We think, however, that the conclusion we have reached by an examination of the will itself is also fully justified by the principles which have been adopted by this Court in a number of adjudicated cases. In the case of Engel et al. v. State, c.,
We conclude, therefore, that it is clear both from the face of the will, as well as from the authority of adjudicated cases in this State, that the legacies to the children of the testator did not vest until the death of the life-tenant, the period of distribution, and that, therefore, the children of Albert Small took his share free from any of his liabilities.
And for the reasons given, and upon the authorities already cited, it must also follow that if Harry D. Small had no vested interest in the legacy, because he died during the life of the life-tenant, it also follows that Mary A. Small takes no part of it under his will, and it forms a part of the fund to be distributed.
The pro forma decree which divides the estate of P.B. Small equally between his surviving children and the children of Albert Small — the latter taking the share of their father — must be affirmed.
Decree affirmed. Costs above and below to be paid out of theestate of P.B. Small.
(Decided January 11th 1900). *569