Balls v. Dampman

McSherry, J., delivered the opinion of the Court. The appellant filed a bill in equity against the appellees praying for the sale of a small parcel of land lying in Baltimore County, to the end that a promissory noie held by him against Elizabeth A. Balls deceased, might be paid. It is not necessary to set forth the several allegations of the hill. The land had been devised by the will of John Balls to the said Elizabeth A., for her life, coupled with a power in her “to will and dispose of the same in such manner as she may see fit by any instrument in the nature of a last will and testament she may see proper to make.” In the event of her death without exercising this power, the property was devised over by the testator to his two youngest (laughters, Elizabeth Balls and Sally Balls, equally.

Elizabeth A. Balls possessing a small personal estate, ³⁹² sufficient, however, to pay all other debts other than this note, the validity of which her executrix disputes; but owning no real estate, executed a will which was duly admitted to probate shortly after her decease. The first and second clauses of that will are the only ones to which we need allude. They are in these words: “First. I order and direct all my just debts and funeral expenses to be paid.

Item. I hereby devise and bequeath to my two youngest daughters, namely, Elizabeth Balls and Sallie Balls, all my property real, personal and mixed, and all my estate of every kind whatsoever, and wheresoever situate.’.’ After the appellees had answered resisting the claim of the appellant, and proof had been taken, the Court below dismissed the bill of complaint; and from that decree this appeal has been taken. Thus the single question before us is whether the real estate mentioned is liable to be sold for the payment of the promissory note referred to. The solution of this question depends upon the construction to be placed on the clauses quoted from the will of Elizabeth A. Balls.

If the will of Mrs. Balls should be held not to be an execution of the power of appointment contained in her husband’s will, it is perfectly clear that the property now sought to be sold under the proceedings in this case, passed, upon the termination of Mrs. Balls’ life estate, to the devisees in remainder, Sally and Elizabeth Balls, according to the express terms of the will of their father. Upon this hypothesis that property, therefore, manifestly could not be sold for or charged with the payment of the life tenant’s debts. This is so self-evident as to-admit of no discussion. We have then merely to determine whether Mrs. lulls’ will is a valid appointment, and, if it be so, to decide whether the property has been so disposed of by her as to be within the reach of the appellant as her creditor. ³⁹³ It has heen settled in this State ever since the decision of the case of Mory, Ex’x vs. Michael, 18 Md., 241 , that “the execution of a power of appoinment by will must he intended, and the intention must he clearly manifested.” It was also held in that case, and has ever since heen considered the undisputed law, until altered by the Act of 1888, chapter 249, which does not apply to this case, that “the rule of construction by which such an intention may he ascertained is explicit and exhaustive, and may he tlms concisely stated:—The intention to execute a power of appointment by will, must appear by a reference in the will to the power, or to the subject of it, or from the fact that the will would he inoperative without the aid of the power.” This statement of the law has heen adopted in the very same words by this Court in Md. Mut.

Ben. So. vs. Clendinen, 44 Md., 435 ; Foos vs. Scarf, et al., 55 Md., 309 , and in Patterson., et al. vs. Wilson, 64 Md., 198 . There is nothing to he found in any oí' the adjudged cases in Maryland conflicting with,