Albert v. Albert

McSherry, J., delivered the opinion of the Court. The will of Jacob Albert, bearing date the eleventh day of May, eighteen hundred and forty-six, was duly admitted to probate-by the Orphans’ Court of Baltimore City, on the ninth day of March, eighteen hundred and fifty-four. By it, after making provision for his wife, and after making a few minor bequests, the residuum of his estate was divided into five equal parts, and one of those parts was" given to each of his. children, subject to the conditions and limitations and upon the terms presently to he stated. After specifying in the third clause of his will certain portions of his property which he designed should constitute a part of the share of his son, Augustus James Albert, he .devised and bequeathed by that clause as follows: “The aforesaid three parcels of property, at the valuation specified, with forty-six thousand eight hundred and fifty dollars in stock of the corporation of the City of Baltimore, stock of the Commonwealth of Virginia, and bonds of the Baltimore and Ohio Railroad Company, in proportion to the amount of each of said stocks held by me, and standing in my name, I give, devise and bequeath to my beloved wife, Eliza Margaret Albert, and my son, William ³⁶³ Julian, as trustees, the survivors or survivor of them, and the heirs, executors and administrators of such survivor, in special trust and confidence, nevertheless, for the use and benefit of my son, Augustus James, during the term of his natural life, to the end and intent that he, during that period, be permitted and suffered to have, use, occupy, possess and enjoy the same, and the rents, issues, profits, dividends and income arising therefrom, to take, receive and apply to his own use and benefit.

And from and immediately after the decease of my said son, Augustus James, then in trust that the same shall descend, and I do hereby devise and bequeath the same to all and every lawful child or children the said Augustus James has, or may have hereafter, their heirs, executors, administrators and assigns, to be equally divided between them, share and share alike. And the balance of one-fifth part of the said rest, residue and remainder of my estate (after deducting therefrom the three parcels of property above devised, with forty-six thousand eight hundred and fifty dollars in stocks, in trust for my said son, Augustus James,) I give, devise and bequeath to my said son, Augustus J., his heirs, executors, administrators and assigns absolutely forever.” The other four shares of the residuum wore disposed of by other clauses for the benefit of his remaining children. In regard to the shares of his two daughters and one of his sons the trusts embrace the whole of their respective parts, and there is some difference in the language respecting the limitations over. Other clauses followed, some of which will be adverted to hereafter.

The tenth clause, succeeding that already quoted and those alluded to, is in these words: ‘‘Item. And I do hereby authorize and empower my aforesaid five children, namely, Augustas James, William Julian, Jacob, Anna Margaret and Mary Schroder, should either or any of them who may arrive at lawful age, and have legal descendants, deem it expedient to avail themselves of the ³⁶⁴ power hereby granted, they or either or any of them, may, by their last will and testament, devise and bequeath to their legal heirs,'executors and administrators, either in trust or absolutely, the property real and personal, left in trust for their use and benefit, as in their discretion and judgment they, or either of them, may deem proper and right in the division and distribution of the said property, real and personal. And in the event of my aforesaid named children, or any one of them, dying without making or executing a will or testament, then the said property, real and personal, devised to either or any of my aforesaid children, shall descend to their legal heirs, executors and administrators, under the restrictions and limitations aforesaid.” Augustus James Albert died on the tenth of September, eighteen hundred and eighty-six, and his will was admitted to probate by the Orphans’ Court of Baltimore County later in the same month. The first clause of that will is as follows : "I, Augustus J. Albert, of Baltimore County, in the State of Maryland, do make this my last will and testament, which I do hereby declare to be executed with a view to affect and embrace all property, real, personal and mixed, of every kind and description whatsoever which shall belong to me at the time of my death, and all that over which I have or shall have the power of testamentary disposition by virtue of my father, Jacob Albert’s will, of record in the office of the Register of Wills, of Baltimore City, in Liber R. H., No. 26, folio 101, &c., or by any other paper instrument whatsoever.” The disposition made by him, under this will, of the settled property and of his own estate will- he stated further on in this opinion.

The executors of Augustus J. Albert’s will and some of 'the legatees filed a bill in the Circuit Court of Baltimore City, against others of the legatees and devisees, seeking a construction of the wills of Jacob and Augustus J. ³⁶⁵ Albert; and a pro forma decree was passed, adjudging the last will and testament of Augustus J. Albert inoperative and without effect as to all the property and estates, real and personal, comprising and forming that part of the estate of Jacob Albert, deceased, which by the third clause of Jacob Albert’s will was devised and bequeathed, as hereinbefore set forth, to Augustus James for life; and further adjudging that the children of Augustus J. Albert are not put to election between the property they are entitled to take under the will of Jacob Albert and the benefits and gifts bestowed by the will of Augustus J. Albert. From that decree this appeal has been taken, and we are consequently required to determine what effect the tenth clause in the will of Jacob Albert had upon the settled property embraced in the third clause ; and whether the will of Augustus J. Albert is a valid execution of the power of appointment contained, as stated, in the will of his father. In interpreting the language used in Jacob Albert’s will, we must be governed, in a great measure, by general rules and principles of construction applicable alike to all similar instruments, rather than merely by adjudged cases seemingly analogous; because, as observed by Lord Wensleydale, in Grey vs. Peason, 6 H. L. C., 108, “when the decision is not upon some rule or principle of law, but upon the meaning of words in instruments which differ so much from each other, and when the proper construction is so varied by the peculiar circumstances of each case, it seldom happens that the words of one will are a sure guide for the construction of words resembling them in another.” The intention of the testator as gathered from the four corners of the instrument is to prevail, if there be apt words used to effectuate it, unless it contravene some positive principle of law or be frustrated by some unbend ³⁶⁶ ing rule of construction assigning an inflexible meaning to particular words. In discovering that intention all parts of the will are to be construed in 2’elation to each other, without regard to the order in which they occur, and so as, if possible, to form one consistent whole. , Even where technical words are used, though the testator will be ordinarily presumed to have used them in their legal sense, a different meaning will be given to them when the context clearly indicates that such technical import would defeat his manifest intention.

Taylor vs. Watson, 35 Md., 519 . Now, it is perfectly obvious that the third clause of the will of Jacob Albert, standing alone, gave to his son, Augustus James, an „equitable life estate in the three parcels of real estate and in the forty-six thousand eight hundred and .fifty dollars of stocks mentioned therein; with remainder to the children of the said Augustus James absolutely ; and that it gave the residue of that one-fifth of the testator’s estate to Augustus J., “his heirs, executors, administrators and assigns, absolutely forever.” There is no controversy in regard to the latter part of this clause which relates to the absolute gift to Augustus J., and we have only to consider what effect the tenth clause has on the preceding part of the third clause and on the estate created thereby. By the tenth clause Jacob Albert authorized and empowered his five children if they arrived at lawful age and had “legal descendants” to “devise and bequeath” “to their legal heirs, executors and administrators either in trust or absolutely, the property, real and personal, left in trust for their use and benefit, as in their discretion and judgment” they might deem “proper and right in the division and distribution of the said property, real and personal;” and in the event of a failure to make such disposition “then the said property, real and personal, devised to either or any of my aforesaid children, shall descend to their legal heirs, executors and administrators,” &c. We think it manifest from an examination of the whole will that the predominant intention of the testator was to ³⁶⁷ create an equitable life estate for his son, Augustus J., in the particular property designated, with remainder to that sou’s children, and to give to Augustus J., under the tenth clause, power to designate by his last will and testament, whether that remainder thus given by the third clause, should vest in his children absolutely or be continued in trust for their benefit, and in what proportions it should so vest.

The whole difficulty arises from the absence from the tenth clause of the word children before the words “their legal heirs,” &c. But though that word is omitted, we think, by a fair construction, the words which are used convey the same meaning, unless the language employed enlarges the estate given by the third clause into a fee simple in Augustus J. Albert, as contended for by the appellants. The word “heirs” is used in Jacob Albert’s will some thirty times with varying meanings. It is sometimes used as a word of limitation and frequently as synonymous with children.

The will is inartificially drawn and it seems too plain for argument that the word has not been employed throughout the instrument strictly in its technical sense. In Carne vs. Roch, 4 Moore & Pay., 862, “heir-at-law” was held, by force of the context, to mean eldest son. The word “heirs” is flexible and should be so construed as to give effect to the manifest intention of the testator. Jones vs. Lloyd, 33 Ohio St., 572 .

It has been construed to mean children, 2 Jar. on Wills, 614, (5th Am. Ed.), note 15, and authorities there cited. This same construction has been applied to it in the case of a devise of real estate. Milroy vs. Milroy, 14 Sim., 48; Micklethwait vs. Micklethwait, 4 C. B.

(N. S.), 790. Now, in the will of Jacob Albert, in other clauses than the ones we are considering, the word “heirs” has been used as meaning children unmistakably. Thus, he says, “it is my will and desire that my real estate and personal property be divided among my heirs, as far as is practicable, without a sale,” &c., “but in case it becomes necessary in ³⁶⁸ order to effect a division of the same/’ he directs a sale of that part “not herein before specifically devised or intended for any of my heirs.” In another clause he gives certain ground rents to one of his daughters during her natural life and after her death to her legal heirs of her body begotten. Again, in reference to his son, Jacob, he directs the trustees to invest that son’s share “for the use and benefit of my said son, Jacob, and his heirs, during his natural life.” It is apparent that in these clauses just alluded to the testator meant children when he said heirs.

That he used the word heirs in the tenth, clause of his will as meaning children is evident, not only from the circumstance that such a construction will give full force and effect to both clauses and thus, prevent an irreconcilable repugnancy, but from a proper reading of the clause itself and the undoubted signification attached by him to that word elsewhere in the will, as already indicated. The power to make a testamentary appointment under this clause is a conditional one. The fight to exercise it is made to depend upon two contingencies, viz., that the child undertaking to do so shall have arrived at lawful age, and shall “have legal descendants.” Those of his children who have no “legal- descendants” are not entitled to make this appointment, and upon their death, the property given in trust for them by other clauses of the will, is directed to be equally divided between the testator’s” surviving children or their descendants, then-heirs, executors and administrators.” But those of his children who do have “legal descendants”—who, therefore, do have children or the descendants of deceased children in whom, under the third clause, the remainder conditionally vested subject to be opened to let in after-born children, and subject likewise to be cut down to a mere life estate by a proper exercise of the power of appointment— were authorized by the tenth clause to make a testamentary disposition or appointment of the estate in re ³⁶⁹ mainder by directing the proportions in which it should bo divided amongst those children and by subjecting it or not to a trust for their benefit. It could scarcely have been the intention of the testator by the insertion of this clause to give to those of his children who should have “legal' descendants,” a fee simple estate in the trust property, by the use in this clause of the words “legal heirs, executors and administrators.” This construction (which has been contended for,) would enable those of the testator’s children who have “legal descendants” to strip those descendants by will or by conveyance of the very property which Jacob Albert seemed solicitous to make secure for their ultimate benefit; whilst those having no children and who, therefore, are not within the terms of the tenth clause, would he still restricted to a mere life estate, and wholly precluded from depriving their surviving brothers and sisters, and their descendants of the possession of the remainder limited over after the termination of the life estate.

Giving then to the word heirs in the tenth clause the meaning of children, which is fully sanctioned by the context, and which is in consonance with the authorities, the third and tenth clauses read together would, as far as the settled property is concerned, give to Augustus J. Albert an equitable life estate with remainder to his children, subject to the right on the part of the said Augustus J. to appoint by his will the respective amounts or proportions of his children’s shares of that remainder, and subject to his further right to subject that remainder to a trust for the benefit of all or any of his children. This seems to us to have been the manifest intention of Jacob ' Albert. This intention can be given effect by the construction we are discussing, and that construction appears to be warranted, if not by cases which exactly quadrate