88 Md. 98 | Md. | 1898
delivered the opinion of the Court.
George Presbury died in the year 1883, leaving a last will by which he devised and bequeathed all his estate to trustees, for the benefit of his wife, Louisa Presbury, for life, and directed that on her death, the whole estate (except a house on Charles street and certain other property that was specifically bequeathed) be sold, and the proceeds thereof distributed as required by subsequent clauses. In the third item he bequeathed as follows:
“ Item 3d. I give and bequeath to Frank X. Jenkins for my dear adopted nephew, James Sykes, Thirty Thousand Dollars, which sum and whatever other sum he, the said James Sykes, may be entitled to under this my will, In Trust to invest the same, and the income, or as much of said income as may be necessary, to apply to the support, education and maintenance of said James Sykes, until the said James Sykes shall attain the age of twenty-five years, when the said trustee shall pay to him said sum with the income that may have accrued
And by the twelfth item, as follows:
“ Item 12th. I give and direct that the residue of my estate be equally divided between my niece, Mrs. Mary Van Bibber, and my nephew, James Sykes: that the share of Mrs. Van Bibber shall be for her sole and separate use and that the share of James Sykes shall be held in trust by Frank X. Jenkins under the same terms as are set forth in the 3rd item of this will.”
At the time of the testator’s death, the estate was more than sufficient to pay all the pecuniary legacies. TJiese amounted in the aggregate to $95,000. It is now alleged that when all the estate shall be sold, the amount to be realized therefrom, will not be sufficient to pay them all in full. The bill was filed by the trustee substituted for the trustees named in the will, and it is asked that the property be distributed under the supervision and order of the Court.
The controversy to be settled in this appeal arises under the third and twelfth items, already fully stated. There was no residue to pass under the twelfth item, and the assets not being sufficient to pay in full the amount bequeathed to James Sykes in the third, he having died unmarried and childless before attaining the
In searching for the intention of the testator we cannot doubt that the testator in the third item disposes of two sums as one sum, viz., a sum composed of the $30,000 and of such other sum James Sykes was entitled to under other portions of his will. The last mentioned sum was that to which he should be entitled under the general residuary clause, that is the twelfth item. In other words, the sum to be paid James Sykes when he had arrived at the age of twenty-five years, was that which was to be ascertained by adding the $30,000 to the sum received from the residue. If this be correct, the case is very different from a division of the single sum of $30,000. Suppose, for instance, the sum of ten thousand dollars were carried to the $30,000, Mrs. Van Bibber would then receive twenty thousand dollars, instead of ten thousand, and her proportion would be one-half of the whole fund. If the residuary fund may be supposed to diminish, Mrs. Van Bibber’s share would grow proportionally smaller, and if it should not exist at all, her proportion would be only a third. We find nothing in the will that casts a do.ubt upon the purpose of the testator to make distribution of the whole amount to which James Sykes was entitled. If words convey any meaning, it is clear that he intended to dispose of the fund coming from the residue, as well as of the specifically named sum. His language is without a possibility of being misunderstood: it is, “ I give and bequeath thirty thousand dollars which sum, and whatever other
But here, the testator links the certain to the uncertain and of the sum necessarily uncertain so obtained he makes division. How can we assume that the testator disregarded what has been called “ the unknown quantity ” or hold that his mind was addressed solely to the certain fund to the exclusion of the uncertain, when he has expressly declared that the sum to be divided, is the $30,000 added to the residuary fund? We do not have here the division of a definite fund, liable to increase, but a sum indefinite and incapable of ascertainment until the final settlement of the whole estate. The case of Walpole v. Apthorpe, L. R. 4 Eq. Cas. 37, is one where the doctrine of a precise legacy with a “ chance ” for more was applied. The testator, after reciting that a policy amounted to £6,416, and that he already ap
In Harley v. Moon, 1 Drewry & Smale 627, it was held an aliquot portion of the residue, could not have been intended, because the fund was first to be diminished by the payment of debt and expenses, and that left the sum to be divided uncertain. So in Wilday v. Bennett, L. R. 6 Eq. Cas. 193, the testator having a general power of appointment over personal property, directed debts and expenses to be paid out of her personal estate impliedly payable out of the same fund, then gave pecuniary legacies to various persons, and then all the residue to others. It was held that the gift of the residue, was what should remain after the payment of debts, expenses and legacies, the Judge remarking that this construction of the will “ gets rid of the argument derived from the case of Page v. Leapingwell.” The case In re Harries Trust, Johnson’s Ch. R. 199, is of similar import. There Gilbert Harries, having power of appointment by deed or will of two policies of £2,000 each and all bonuses, settled £1,000 on each of his two daughters by deed, he having agreed to do so, and afterwards by his will directed that subject to the two appointments already made by deed, £1,000 should be paid to A, £1,000 to B, residue to a third person. One of the former appointees under the will having died, the claim was made, but denied by the Court, that the lapsed
For these reasons we are constrained to hold, that the appellee cannot require the appellants to abate, that they are entitled to be paid the several sums allotted to them out of any money for distribution under the third
The decree must therefore be reversed and the cause remanded for further proceedings.
Decree reversed and cause remanded.