Backus v. Presbyterian Ass'n

Alvey, C. J., delivered the opinion of the Court. The bill in this case was filed by Mary B. Backus as surviving executrix, and in her own right as devisee and legatee, under the will of her father the late John C. Backus of the City of Baltimore. The object of the bill was to obtain judicial construction of certain devises in the will, to procure the direction of the Court in the administration and division of the estate, and a decree for sale of certain real estate for purpose of partition. The testator died in 1884, and left surviving him a widow, one unmarried daughter, who is the complainant in this case, and two grandchildren, the children of a deceased daughter, and who are still infants under twenty-one years of age.

The will was made in 1883. After answer of some of the defendants, a decree pro confesso as to others, and testimony taken, a decree of the Court below was passed, construing the will, and declaring what particular estates were taken thereunder by Mary B. Backus, and the two grandchildren, respectively; and it is from that part of the decree, declaring and defining such estates, that the two appeals in this record are taken; — Mary B. Backus, appealing in her own right, and the two grandchildren prosecuting a separate appeal in their right. And the only questions presented on these appeals are, what estates, and the nature thereof, in the property devised and bequeathed, do the appellants take under the ninth and tenth, clauses of the testator's will, respectively? By the eighth clause of the will, the testator devised and bequeathed all the rest and residue of his estate of every kind, wheresoever situate, and all that he might ⁵⁵ die possessed of or be entitled to, to his wife during her natural life.

And then, by the ninth clause, he devised as follows: “Should my wife die before me, and at her death after me, I devise and bequeath three-fifths of the said rest and residue of my estate to my daughter, Mary B. Backus, she to select as her absolute property any of my furniture and household effects not otherwise designated. Should she die before me and my wife, or die leaving no issue living at the time of her death, and without a will, disposing of said three-fifths, then I devise and bequeath two-fifths of my daughter’s said three-fifths to form part ■of the residue of my estate for my grandchildren, John O. Backus Pendleton and Maria Lucinda Pendleton, upon the same trusts and, limitations, and to the same trustee, as the trust hereinafter in this will devised in trust for said grandchildren.” The other one-fifth he devised over to certain charitable and religious institutions, named in the clause of the will. By the tenth clause of the will, the testator devised and bequeathed as follows: “The remaining two-fifths of' said rest and residue of my estate, after my daughter’s said three-fifths, I devise and bequeath to the Safe Deposit and Trust Company of Baltimore, iu trust as to one of said two-fifths for my grandson, John C. Backus Pendleton, he to receive the clear rents, issues and income until he arrives at the age of thirty years, at which time the said share shall vest in him free of said trust; and in trust as to the other one-fifth for my granddaughter, Maria Lucinda Pendleton, she to receive the clear rents, issues and income until she arrives at the age of thirty years, at which time said share shall vest in her free of said trust; the said trustee to manage the said estate devised in trust and collect the rents and income and pay over the net rents and income to said grandchildren, or their ⁵⁶ guardians while minors. The said trustee shall have power to invest in ground rents or safe interest hearing securities, change the investment .of, and sell and re-invest any of the trust property vested in said trustee under said clauses of this my will, and to continue to change the investment of all or any of the trust property. “ Should, either of said grandchildren die without leaving children living at the time of their death, the share of the one so dying shall pass to the survivor, under the same trusts and limitations. “Should hoth die without issue liviny at the time of their death respectively, then in such event I devise as follows:” Then follows a devise over; by which a legacy of $10,000 is given to the father of the two grandchildren of the testator, and the residue of the portion devised to the grandchildren is devised to the daughter, Mary B. Backus; and if she should die without leaving issue living at the time of her death and ivithout a will, then the testator devises all the rest and residue of his estate to his brother, J. Trumbull Backus, and his heirs.

The contention on the part of the daughter, the plaintiff in this case, is, that hoth the daughter and the two grandchildren take merely life estates in the devises and bequests to them respectively, and that only the issue of the daughter, and of the grandchildren, take estates in fee or absolute estates in the property devised and bequeathed. But on the part of the grandchildren it is contended that the estates or interests devised and bequeathed to them, respectively, are absolute equitable estates in the first instance, to be converted into absolute legal estates upon their respectively attaining the. age of thirty years. We are of opinion, however, that neither of these contentions can be maintained, upon the proper construction of the will. In construing this will, of course, we must look to all its provisions, and place such construction upon it as ⁵⁷ will best promote and carry into effect the general scheme and intention of the testator.

Effect must be given to every part of the will, if possible, consistently with the established principles of law; and we are not to assume that the testator did not understand the terms employed by him, or that he did not understand what would be the construction of particular limitations or provisions of his will, according to settled rules of law. Fixed rules of interpretation, whether founded in the common law, or prescribed by statute, are supposed to be the surest and most certain means of ascertaining and giving effect to the intention of the testator; and those rules, though technical they may appear to be, should only be departed from or disregarded, in cases where the plain and manifest intention may require it. Here the devise by the ninth clause is of three-fifths of the rest and residue of the testator’s estate to his daughter. If the devise had stopped here there could be no question of the estate taken by the daughter; she would have taken an absolute fee simple estate in the realty, according to established rules of construction; and also an absolute estate in the personalty.

For an estate in land is defined to be “such interest as the tenant hath therein.” 2 Black. Com., 103. And as said by this Court in the case of Beall vs. Holmes, 6 H & J., 208, “it is settled by an uninterrupted series of adjudications from an early period of judicial history down to the present day, that the word ‘estate,’ in a devise, is equivalent to words of limitation, and sufficient to pass the fee simple when not restrained by other words, nor appearing to be used by the testator as descriptive only of the local situation of the land devised; and so (upon the same principle) will any other words having the same import.” And the word “estate” comprehends both the real and personal estate of the testator, and in a devise such as the present, passes both species of ⁵⁸ estates. 1 Salk., 236; Barnes vs. Patch, 8 Ves., 604. But the general devise, and the absolute effect of the word “estate,” are both qualified by what follows.

The testator proceeds to declare: “Should she die before me and my wife, or die leaving no issue living at the time of her death and without a will, disposing of said three-fifths, then I devise,” &c. These terms operate to render the estate created by the preceding general devise, and the effect of the word “estate, ” defeasible. The dying without leaving issue living at the time of her death, and without disposing of the said three-fifths of the estate by will, are two events that must concur, in order to defeat the preceding devise in fee and absolute estate, and give effect to the devise over. Upon the happening of these two concurrent negative events, the devise and bequest over take effect as an executory devise and bequest.

It is clear the testator intended to dispose of his entire estate, and did not intend to give to his daughter a mere life estate. If such had been his intention he would certainly have expressed it. He knew what words were appropriate to be used in limiting such estate, for he had just in the preceding item of his will, limited such estate to his wife by express and appropriate terms. Moreover, it is not reasonable to suppose that the testator would have left any issue that his daughter might have unprovided for; and yet there is no express devise or limita tion of any estate to the issue, nor any room or foundation for raising by implication an estate to them in remainder.

The only provision for them in the event of intestacy of the daughter, is in the inheritable or distributable quality of the estate vested in the daughter, and from whom they may take under the laws of descent and distribution; but not as devisees or