Straus v. Rost, 67 Md. 465

Straus v. Rost

67 Md. 465 | Md. | 1887

Miller, J.,

delivered the opinion of the Court.

This appeal presents two questions, one of which depends upon the construction of the will of George Rost. The testator died in December, 1871, and after providing for the payment of his debts and funeral expenses, the whole of his will is as follows :

“I devise and bequeath unto my beloved wife, Sophia, so long as she remains my widow, and if she do not marry again, then for and during the term of her natural life, all the property of every nature and kind, whether real, personal or mixed, and inclusive of all claims, whether legal or equitable, which'I now have and possess, or which I I may have, possess, or be in any manner entitled at the time of my death. But if she do marry again, then, immediately upon her second marriage, I give, devise and bequeath to her such part of my estate only as she would have been entitled to under the laws of the State of Maryland had I died intestate; and the residue of my estate I give, devise and bequeath absolutely) to all my children to be equally divided between them, share and share alike, the issue or descendants of any deceased child or children to take per stirpes and not per capita, the share such child or children would have respectively taken had such child or children survived; but if she should not marry again, then I give, devise and bequeath absolutely upon her death, all my estate and property of every nature and kind to all my children, to be equally divided between them, share and share alike, the issue or descendants of any deceased child or children to take per stirpes and not per capita, the share such child or children would have respectively taken had such child or children survived.”

The will was executed about eight months before he died, and at the time of his death the testator left surviving him five children, four sons and one daughter. The daughter died a few weeks after her father, an infant, intestate, and unmarried. One of the sons, August, died *476in 1877, leaving the appellee his only child and heir-at-law, who is now about nineteen years of age. The widow married a second time in April,. 1881. Upon this state of facts the question arises whether upon this second marriage of the widow the appellee took by virtue of the will the share of the property which would have gone to his father in case he had survived that event, or whether this share vested absolutely in the father upon the death of the testator, and therefore became subject to an incumbrance which the father had placed upon it in his life-time. In other words, is the survivorship mentioned in this will to be referred to the death of the testator or to the second marriage of his widow.

Cases are numerous in which this subject has been discussed and adjudicated with reference to particular wills, the intention of the testator in each case being what the Court endeavors to ascertain. The law no doubt favors the vesting of estates, and as between a vested and contingent estate the intent to make it the latter must be expressed in terms so plain as to leave no room for construction. Tayloe vs. Mosher, 29 Md., 443. So again as a general rule, the Courts will, in the absence of plain expressions, or an intent plainly inferrible from the terms of the will, adopt the earliest time for the vesting where there is more than one period mentioned. It is a question of intention, and the testator has ample power to fix the period of vesting to suit himself, (always within the time the rule of law fixes), but he must indicate his wish with reasonable certainty, for if he does not the law will presume he intended the earliest time. Crisp vs. Crisp, 61 Md., 152. Now applying these general rules to a case like this, it may be taken as an established rule of law, that where there is simply a bequest to A, and in case of his death, or if he die, to B, if A survives the testator, he will take absolutely. 3 Jar. on Wills, 606. But although in case of an immediate gift it is generally true that a *477bequest over in the event of the death of the preceding legatee, refers to that event occurring in the life-time of the testator, yet this construction is only made ex necessitate rei from the absence of any other period to which the words can be referred, as tbe testator is not supposed to contemplate the event of himself surviving the objects of his bounty ; and consequently, where there is another point of time to which such dying may be referred (as obviously is the case where the bequest is to take effect in possession, at a period subsequent to the testator’s decease), the words in question are considered as extending to the event of the legatee dying in the interval between the testator’s decease and the period of vesting in possession. 3 Jar. on Wills, 611. In our opinion the present case falls within the rule thus laid down by Jarman, and which we have approved in the recent case of Engel vs. State, use of Geiger, 65 Md., 539. The testator gave all his property to his wife during widoiohood, but if she married again he gave her only what the law allowed her, and upon the happening of that event he then gave the residue to his children to be equally divided between them, the child of any deceased child to take the share which such child would have talcen had he survived. Clearly so long as the widow remained unmarried the children were to get nothing in possession, but when that event took place the residue of the property was to be divided, they were then to come into possession, and the child of a deceased child was to take the share his father would have taken had he survived that event. This, it seems to us, is the plain reading of this will. The testator has, in our opinion, indicated, with reasonable certainty, the time at which he wished the residue of his estate to vest, and that was upon the second marriage or death of his widow. The case is clearly covered by the reasoning and decision in Engel vs. State, use of Geiger, which was decided after full consideration and by a very full Court. That case has been so *478recently decided that no review of it is necessary. It follows that upon the marriage of the widow the appellee became entitled, by virtue of this will, to the share of the estate which his father would have been entitled to had he survived that event, and that no conveyance, or assignment, or incumbrance placed upon the property by his father in his life time, could affect that right.

The next question is, can the appellee obtain relief under the petition he has filed in the case, to which a de- - mur'rer has been interposed ? In determining this question we must consider the proceedings in the case so far as they are disclosed by the record, or have been conceded in argument. •

It appears then that on the 2nd of June, 1880, a bill was filed for the sale of the property left by the testator. It'is not necessary to state at large its averments or the grounds on which the sale was asked. To this bill the appellee, then an infant, was made a defendant, and answered in the usual form by his guardian. The decree for the sale was passed in July, 1880, before the widow’s second marriage. The estate was a large one and the trustee from time to time made sales of different parts, and these were duly reported and ratified. Several accounts distributing the proceeds, were also stated and ratified, the last ratification having occurred in September, 1882. In these accounts no portion of the proceeds of sale was distributed to the appellee, nor was any notice taken of his rights, but the whole of his share was allotted to the appellant, Straus, who was the purchaser of the property, and claimed this share under a mortgage of his interest in the property by the father of the appellee. On the 21st of February, 1887, the appellee by his next friend, filed a petition in the case against Straus setting forth the above facts, and praying that these several audits may be rescinded, and that the. petitioner may be allowed his share of the proceeds with interest. Is he entitled to relief under this petition ?

*479It is to observed that the petition does not attack the decree nor impeach the title of the purchaser thereunder. Nor does it assail the ratification of the audits upon the ground of fraud. In fact, it nowhere appears throughout the proceedings that the attention of the Court was ever called to the construction of the will, or the rights of the appellee thereunder. The only matter called to the attention of the Court having, the remotest bearing on this subject, was an exception to the ratification of one of the sales made after the second marriage of the widow, upon the ground that she was “a married woman and her husband was therefore a necessary party to the suit.” Rut this, so far from invoking a construction of the will in reference to the rights of the appellee, concedes that he had no rights and that the title of the purchaser would be good if the second husband was made a party to the proceedings. It is a case therefore where the Court, through mere inadvertence or mistake, and without having its attention called to the subject, ratified the accounts assailed by the pétition.

The general rule of practice that a decree or decretal order after enrolment, can be revised or annulled only by a bill of review or by an original bill for fraud, is well settled. Thruston vs. Devecmon, 30 Md., 210; Downes vs. Friel, 57 Md., 531; United Lines Tel. Co. vs. Stevens, et al., ante, p. 156. Rut there are certain well defined exceptions to this general rule, which are equally well established, where the procedure may be by petition. These are “in cases not heard upon their merits, and in which it is alleged that the decree was entered by mistake or surprise, or under such eireumstances as shall satisfy the Oourt, in the exercise of a sound discretion, that the enrolment ought to be discharged and the decree set aside.” Herbert vs. Rowles, 30 Md., 278; First National Bank of Washington vs. Eccleston, 48 Md., 155; Pfeaff vs. Jones, 50 Md., 269; Gechter vs. Gechter, 51 Md., 187; *480Patterson vs. Preston, 51 Md., 190; Downes vs. Friel, 51 Md., 533. In our judgment this case' clearly falls within these exceptions, and the result is that the order appealed from which overrules the demurrer to the petition as well as the motion to dismiss the same, must he affirmed.

(Decided 23rd June, 1887.)

Order affirmed, and cause remanded.

Stone, J., dissented.