86 Md. 573 | Md. | 1898
delivered the opinion of the Court.
This is an appeal from a pro forma decree construing the last will and testament of John Weybright, which was executed in 1887. The testator bequeathed to his wife one
Following the devises and bequests to his daughter, who is now Emma S. Powell, is this clause : “ Item.—Nevertheless the said Emma S. Weybright dies without bodily heirs, my will is then that said real estate and personal property thus described shall relapse to my son, Samuel Weybright, and his heirs, for their proper use and benefit. But not until her mother's death."
He directed his executor, who was his son, to collect all debts due his estate and pay his debts as soon as possible, and to sell his other property, real or personal, not disposed of by his will, to the best advantage, and apply the proceeds to the augmentation of his estate, and then added the following clause: "After my debts and expenses and all of the above legacies are all paid, should there be any money left of my estate, my will is that said money shall then be equally divided between my two children, that is to say, Samuel Weybright and Emma S. Weybright, share and share alike.”
The clause in the will that has given rise to this controversy, is the one above. " Nevertheless the said EmmaS. Weybright dies without bodily heirs,” etc. An agreement in the record states that the widow departed this life in December, 1892, about a year after the death of the testator, and that the executor was allowed in his first account passed in the estate to retain the stock in the First National
The question to be determined, therefore, is what effect, if any, that qualifying clause had upon the bequest and devises to Mrs. Powell. There is nothing in the language of the devises and bequests themselves which in anywise limits or qualifies them, excepting in the 1st, 2nd and 3rd items, which conclude with the statement, “ not to take effect until after the death of her mother”—those items being applicable to the real estate and national bank stock given to Mrs. Weybright for life—and but for this clause in the will now in controversy, the daughter’s estate and interest in the property given her would now be absolute, her mother being dead.
It is conceded by the appellant that prior to the Act of 1862, ch. 161 (Art. 93, sec. 317 of the Code), the words, “ dies without bodily heirs,” without anything in the will to modify or restrict their meaning, would have meant an indefinite failure of issue and the devise over would have depended upon too remote a contingency for the executory devise to be good, and hence Mrs. Powell would have taken
Under the authorities, she, therefore, takes a fee in the land, and the entire interest in the personalty, defeasible on the contingency of her dying without bodily heirs, and upon the happening of that contingency the ultimate devisee and legatee would take by way of executory devise and bequest. Courts have always been more ready to construe a limitation over, upon dying without heirs, or without issue, to mean a dying without heirs or issue living at the death of the first legatee, in order to support a bequest of personal property over, than in the case of a devise of real estate. This will and the Act of 1862, in terms apply to both real and personal property, and as we are of the opinion they are sufficient to support the devise of the real property, they are necessarily so as to the bequest of the personal property.
We do not find anything in the will which indicates a contrary intention on the part of the testator. Great stress has been laid on the residuary clause above quoted. It is argued that as the division cannot be made until after all legacies are paid the testator evidently intended that the legacies to the daughter should be paid to her in her lifetime. But the answer to that is that Mrs. Powell takes an estate in fee in the realty, and the entire interest in the personalty, defeasible as to both realty and personalty upon the happening of the contingency specified—her dying without bodily heirs. Placing the construction we do upon the language of the will, it is very similar in its effect, to the case of Devecmon v. Shaw, 70 Md. 219. There the opinion of Judge Alvey, who sat below, was adopted by this Court. The testator had devised real estate to his daughter, generally without words of limitation, and had also given her money, stocks and bonds by general words of gift, without restriction or limitation, but he added this provision, “but in case my said daughter should die without leaving any child or children at the time of her death * * * * * then all the real estate and personal es
Nor do we find anything in the will that would justify us in reaching the conclusion contended for by the appellee that the testator intended that the limitation over to the son should only take effect in the event of his daughter dying without heirs of her body during the life estate of her mother. The words “ but not until her mother’s death ” may have been intended to give, for life, to the mother, the benefit of all the property given the daughter in the event of the latter dying before her mother, or it may only have been intended to apply to the property given to the daughter in which the mother had a life estate. It is not necessary for us to determine what it did mean, as the mother is now dead, further than to say we do not think it reflects upon the question before us.
Mrs. Powell is entitled to the possession of the property, both real and personal, and the executor therefore should have paid over to her the stock retained by him. The case of Kuykendall v. Devecmon, 78 Md. 537, shows under what circumstances a Court of Equity will interfere to protect the contingent interest. It is only upon application for security for its protection, and upon proof that the contingent interest will be put in jeopardy that the Court will interfere. The executor has no right to hold the property.
It follows from what we have said that the pro forma decree must be reversed in part, and affirmed in part, and the cause will be remanded that a decree may be passed in accordance with this opinion.
Decree reversed in part and affirmed in part, and cause remanded. The costs to be paid out of the estate.