Ahalt v. Hersperger

Irving, J., delivered the opinion of the Court. Samuel Ahalt, of Frederick County, died in 1889, leaving a will which was executed in eighteen hundred and ⁸⁹ seventy-six. By that will he gave three grandsons, Samuel Hersperger, William Hersperger and Ellmore Hersperger (children of his deceased daughter) each the sum of two thousand dollars, the principal sum to he paid to each at the age of twenty-five years, with interest thereon to he paid annually from the time each was twenty-one years old until he was twenty-five, and could receive the principal. All the rest of his estate, real and personal, which was quite large, was given to testator’s two sons, John E. Ahalt and Carlton P. Ahalt; and the testator directed “that in the event of my owing any claims at my decease, my two aforesaid sons to pay the same, share and share alike.” On the third of August, eighteen hundred and eighty, reciting the fact of having made his will, and having given his three grandchildren each, mentioning them by name, two thousand dollars “on certain conditions therein named,” he made the following codicil: “How, therefore, 1 do, by this my writing, which I hereby declare to be a codicil to my said last will and testament, and to he taken as part thereof, order and declare that my will is that, in the event of loss to my estate by my being security or indorser for others, and my executors have to pay the same, then I. direct that my grandchildren, Samuel, William and Ellmore Hersperger, shall pay their proportionate share of the same, that is to say, one-third of the said loss equally between them, and shall be withheld by my executors heretofore named in my will.” The executors named in the will are the two sons to whom he gave the residue of his estate charged with the payment of debts due by testator.

Afterwards on the 14th of May, 1888, he added a second codicil as follows: “Whereas, I, Samuel Ahalt, am desirous to change the provisions of my said last will and testament, dated on the 80th day of August, 1816, I do hereby make this second codicil thereto.” ⁹⁰ “And whereas, I did bequeath to my grandchildren, Samuel, William and Ellmore Hersperger, children of my deceased daughter, Amanda Catharine, two thousand dollars, with interest from the time they arrived at the age of twenty-one years, it is now my will, and I direct that my executors shall only pay them the principal sum of two thousand dollars without any interest upon their arrival at the age of twenty-five years.” The bill in this case was filed to obtain a construction of the will and these codicils, and asks for a decree directing the executors to pay to each of testator’s grandsons the sum of two thousand dollars, with interest from the date that each of them reached the age of twenty-five years. The defendants, the executors of the will, resist the construction contended for by the plaintiff's and which is the basis of their prayer for relief, and contend that the testator incurred, as security and endorser of his brother Joshua Ahalt, an indebtedness amounting to about forty-three hundred and ninety-five dollars, of which the plaintiffs, in consequence of the provisions of the first codicil, are bound to pay one-third thereof, and the defendants are authorized to deduct from the amoimts bequeathed to the plaintiffs; and that the plaintiff's, therefore, are each only entitled to receive about fifteen hundred and eleven dollars and sixty-six and two-thirds cents. We learn from the very lucid opinion of the Court below that it has already been decided by that Court in another proceeding in equity, that the second codicil did not revoke the first codicil, and that being an unappealed and unreversed decision, this case must be decided with that as concession in the case; but that decision does not in any way'embarrass us in deciding this case, for we cannot see that such decision was in any degree in the way of the Court in deciding as it did in this case, and as we think entirely right. The real questions in the ⁹¹ case are 1st, what kind, of loss is contemplated by the first codicil that the grandsons are required to share in paying; and 2nd, are there any such losses which the executors have had to pay, which curtail the amounts given to the grandsons by the second codicil.

The general rule of construction is, in finding the intention of a testator, we must look at the language he has used, and adhere to the ordinary and usually accepted meaning of the words employed, in arriving at his meaning. In Gundry vs. Pinniger, 1 De G., McN. & G., 501, it is said to be a cardinal rule, “to adhere as closely as possible to the literal meaning of the words; and in Larmour vs. Rich, et al., 71 Md., 381 , this Court says: Obviously the most simple and the most natural way to ascertain what a testator’s or a grantor’s intention was, is to read what he has written, because what he has written was designed by him to express that intention.” If the words used have a fixed or technical meaning,- adherence must' be more rigidly maintained, though sometimes the intention is thereby defeated. In Lomax vs. Holmden, 1 Ves. Sr., 294, Lord Hardwicke says: “Whatever the intention, if there are not words in the will to warrant it, either express or implied, it cannot have effect.” Thus we see that we are to find the meaning from the words used.

Applying this rule, and having no reference to any extrinsic