Weatherly v. Mister

| Md. | Mar 3, 1874

Robinson, J.,

delivered the opinion of the Court.

This cause comes up on appeal from the decree of the Circuit Court of Baltimore City, on a bill filed by the appellants against the appellees, to obtain the true construction of the seventh clause in the will of George Mister, late of said city, which reads as follows:

“Seventh.' — All the rest and residue of my estate, real, personal or mixed, I give and devise to my three children, Rhoda A. Weatherly, Beverly Waugh Mister and Mary A. Mister, to be equally divided between them ; but if either of my said children should die prior to my decease, leaving no child or children living at the time of his or her death, in that event my surviving child or children shall be entitled to the said rest and residue of my estate, and the part which may fall to my daughter Rhoda A. Weatherly, shall be held by her as her sole and separate estate, and suKject to the limitations as to her husband, andas to its further disposition contained in the third item of this will.”

The third item in the will thus referred to reads as follows: ■

“Third. — I give and bequeath to my daughter Rhoda A. Weatherly, six thousand dollars in five-twenty bonds of the United States, to be her sole and separate property, free from the control of or liability for her present husband or any future husband she may have; and at her death the said bonds and their proceeds shall vest in any child or children she may have; and in case she shall die without issue surviving her at the time of her death, the said bonds and their proceeds shall vest in my children surviving her equally.”

The three children named as devisees and legatees in the seventh clause of the will survived the testator, and the sole question presented by this appeal is whether Mrs. Weatherly takes under such clause in the one-third residue thus devised to her, an absolute estate instead of an estate for life with remainder over, and an unqualified estate instead of an estate for her sole and separate use.

Independent of the use of the semicolon after the word “them,” no doubt could arise we think as to the proper construction of this clause in the will. Looking to the language of the clause in question, it presents the simple case of a gift of the residue to three children if they survived the testator, to two of them if two survived, and to one, if only one survived him, with the additional provision that the part which might fall to Mrs. Weatherly should be “held by her as her sole and separate property,” with limitation over to her. children in the event of her death, &c.

The appellants, however, contend that this clause is to be construed as containing two distinct and independent devises, separated by the use of the semicolon after the word “them;” and that in the event of the three children surviving the testator, Mrs. Weatherly was to take an absolute, unqualified, and unrestricted estate in the one-third residue; and that the limitation over, and restriction of the estate to her free and separate use by the latter part of the clause was only to take effect, upon the death of her brother or sister in the life-time of the testator. Iu other words, that the semicolon is to be construed as a period or full stop, thus separating entirely the two sentences in the clause from each other. We agree with the counsel for the appellees that this construction would give to this semicolon, a force and effect unknown to the rules of construction, established by the common law. Punctuation may perhaps be resorted to when no other means can be found of solving an ambiguity, but not in cases where no real ambiguity exists, except what the punctuation itself creates. In such cases it will not ’;be allowed to confuse a construction otherwise clear. Sanford vs. Raikes, 1 Merivale Rep., 650; Arcularius vs. Geisenhainer, 3 Brad. Rep., 64; Arcularius vs. Trout, 25 Barb., 406; O’Hara on Const. of Wills, 29; 1 Red. on Wills, 434.

But in this case, even if we should give to the semicolon its fullest force and effect, we are not prepared to say that the construction contended for by the appellants could be maintained. We may not be able to define precisely what is the effect of a semicolon upon the separate members of a compound sentence, but it is generally used for dividing a compound sentence into two or more parts, not so closely connected as those which are separated by a comma, nor yet so little dependent on each other as those which require the colon. But the use of it does not necessarily destroy the dependence of the several members of a compound sentence upon each other. To give this effect to the semicolon as used in the seventh clause of the will, and to say that by force of it Mrs. Weatherly takes under the first part of the sentence which precedes it, an absolute and unqualified estate, and that under - the second part of the sentence which follows it, she takes an estate for life for her sole and separate use, would be to make the construction depend upon a semicolon, and not upon the plain language of the will itself.

(Decided 3d March, 1874.)

We are of opinion, therefore, that under the seventh clause, Mrs. Weatherly takes a life estate in the one-third part of the residue of the testator’s estate, to her sole and separate use, with limitation over to her children, should she die leaving any.

This construction is certainly consistent with the general intention of the testator apparent upon the face of the will. Not only in the third, but in the fourth, fifth, and in fact in every clause in which there is a bequest to Mrs. Weatherly, there is a limitation to her sole and separate use, remainder to her children.

• On the other hand, if the construction contended for by the appellants be correct, Mrs. Weatherly takes an absolute and unqualified estate in one-third part of the residue, whereas if either her brother or sister had died before the testator, she would have taken one-half for life, with limitation over to her children. No reason can be assigned in support of such a construction, and it is inconsistent with the general and special intent which pervades the will.

Entertaining these views, it becomes unnecessary to deeidé whether the parol evidence offered by the appellees was admissible.

Decree affirmed.