25 Md. 450 | Md. | 1866
delivered the opinion of this Court.
The construction of a clause of the last will and testament of the late Joseph Young, of Baltimore city, is the subject of the appeal in this case.
The testator made his will on the 26th of June, 1823, devising to certain trustees and their heirs, after the death of his wife, all the rest, residue and remainder of his estate, real, personal and mixed, not therein before devised, and among other provisions devised as follows, viz: “In trust that they, or the survivor of them, with all convenient speed after the death of my wife, shall set up and expose to public sale, after giving notice, etc., all my said estate, etc., “and out of the monies arising from said sale or sales to pay, or cause to be paid, unto my brother William Young’s children the sum of one thousand dollars each, when and as they shall respectively arrive at age, and in case they, or either of them, shall happen to die before he, she or they shall have attained the age of twenty-one years, or day of marriage, then the part or share of him, her or them so dying to go and be distributed amongst the survivors or survivor of them, share and share alike; and after paying the above sum of five thousand dollars unto and amongst my brother William Young’s children, or the survivors or survivor of them, then I do hereby order and direct my trustees and executors, and the survivor of them, to pay the surplus of the monies arising from the said sale or sales unto and amongst the legal representatives of my beloved wife, Elizabeth Young.” The testator died in 1824, without children or their descendants, leaving a widow (who survived until 1862,) and two brothers, William and John Young. William had, at the time of the execution of the
The appellants, claiming under the residuary clause of the will, relying upon extrinsic proof, and construing the will in connection with the fact that William Young had seven children, contend that, as a matter of law, thé clause by which the testator limits his bounty to $5,000, in all, controls the whole bequest; that the testator manifestly intended to benefit his wife’s representatives by a devise to them of the wdiole residue of his estate, less only $5,000, and there is no principle by which the Court can construe the will as if “Jive” had been written “seven,M to their detriment; that this is not a case where the will would be void for uncertainty, unless the restrictive clause is rejected, as the testator sums up the amount to be deducted from the residue, which •the Court can divide among John Young’s children as it may think them entitled, which would reconcile the clauses, if after considering the evidence, they should think any conflict exists.
The appellees’ theory is, that the restrictive clause, being in conflict with the general intent of the will, according to the authorities, should be rejected, and that each of the seven children of William Young, who survived the testator, is entitled to the sum of $1,000, making an aggregate of seven, instead of five thousand dollars, to be deducted from the residue.
The Court below adopted this view, hence this appeal. There is a second question as to the principle of distribution of the surplus among the appellants, which will be considered in its order.
There is no exception to the evidence offered by the complainants; indeed, both parties rely on it to show the number of the children of William Young at the execution of the will and the death of the testator, and the ambiguity
The leading cases relied on by either party, with few exceptions, are collected in the elementary writers, and the rules of construction deduced from them, so that it is too late to say any of such cases is an “obiter dictum.”
This Court, in the case of Chase vs. Lockerman, 11 G. & J., 205, adopts some of the general rules of interpretation laid down by the English authors on Wills and Testaments thus: “In 2 Wms. on Exr’s, 711, speaking of bequests to children in a class, the author says: generally speaking, every person who, at the time of the testator’s death, falls within the described class of children, will be entitled. 33ut where it appears from express declaration, or clear inference from the will, that the testator intended to coniine his bequest to those only who answered the description at the date of the instrument, such intention must be carried into effect. A Court of Equity, however, is always anxious to include all children in existence at the time of the death of the testator, and particularly when he stands in the relation of parent to the legatees,” etc.
In the same case, this Court declared: “It is a well established rule in the construction of wills, that where there is a general and particular intent apparent upon the face of the will, the general intent, although first expressed, shall control and overrule the particular intent.
Thus, in 2 Wms. on Ex’rs, 714, it is said, it must not, however, be understood, that because the testator uses, in one part of his will, words having a clear meaning in law, and in another part, words inconsistent with the former, that the first words are to be cancelled or overthrown. A contrary principle is now fully established in the doctrine already considered, that the general intent, although first expressed, shall overrule the particular intent. 11 G. & J., 206.
These rules of construction are as much as possible to be harmonized.
The general intent is not to be sacrificed to the particular, because by gratifying the latter the rule of necessity may be avoided.
The presumption of law is in favor of the children as a class. Although the testator in this case was not the parent, being an uncle, and dying without children, it must enure to the benefit of the legatees, pro hac vice; he stood in “ loco parentis.” The testator must be regarded as contemplating his nephews and neices with equal affection, and intending their equal advantage; his will not distinguishing them in any manner as individuals. He spoke of them and treated them as a whole. Standing to him, as nearest of kin, ( except his brothers, who were excluded by the express terms of the will in favor of the children of his brother William,) the children must be assumed to be next in his affections.
The argument that the testator, by his subsequent mention of the sum of five thousand dollars, thereby limits his bounty to that sum, and furnishes the means of avoiding
This Court cannot depart from the well established rules of construction in this respect. The will must be construed as if the reference to the amount had been omitted.
The second question presented by the brief of the counsel for the appellants, whether the surplus or residue should be divided “ amongst the legal representatives ” of Elizabeth Young, per capita or per stirpes, is resolved by a reference to a few well known authorities.
The appellants, by an agreement in the record, have submitted the distribution among the legal representatives of Elizabeth Young, deceased, as if the exceptants had formally prayed an appeal. It appears from the account referred to, that the auditor has assigned to Charles E. Horne, one-half of the nett balance. The case of Levering vs. Levering does not, we think, apply to the distribution of the surplus in this. This Court placed their decision in that case upon a clear intention to give to the children of one daughter, the precise one-half of the estate which their mother had, no matter which of the daughters of the testatrix should die first, whether it might happen to be the one leaving the largest or smallest number of children. Vide 14 Md. Rep., 39.
In the will under consideration, there is no standard of distribution. The residuary legatees are described in general terms. It is clearly established that these words, “ legal representatives,” mean 'next of kin when used in the connection they are found in. Vide 2 Jarmyn, 41, (mar.) If the equivalent words had been used, the rule of distribution would have been that established by the testamentary system in cases of intestacy, the testator, not having desig
The words of the bequest in this case do not indicate any purpose to make a different distribution, and where the will is silent the general law of distribution should prevail. Vide, Roper on Wills, 126. The appellants, standing in equal degree to Elizabeth Young, would take per capita.. We find no error in the decree below, and, therefore, affirm the decree. But, inasmuch as the appellants have submitted their rights to the decision of this Court, we think the distribution of the surplus by the auditor should be corrected in conformity with the principles above mentioned. We, therefore, remand the cause, that the account distributing the residue may be modified.
Cause remanded.