Black v. Herring

Roberts, J., delivered the opinion of the Court. This case comes here on appeal from the decree of the Circuit Court No. 2 of Baltimore City, on a hill hied by the appellant against the appellees to obtain the true construction of certain provisions of the last will and codicil thereto of Elizabeth W. Black, late of said city. The chief controversy arises out of the proper construction of the fourth clause of the original will, which reads as follows: “ I give, devise and beqneath all that lot, property and premises situate on the south side of Lexington street, which by deed dated the tenth day of July, 1866 * * * I acquired from William W. McKaig, to my daughters, Mary E. Derringer and Annie M. Herring, and the survivor of them, and their successor in the trust, and execntors, administrators, and assigns (the sub-reversion (and sub-groundrent) in the back of the above mentioned lot being included in this bequest).' In trust and confidence, however, to hold the same and to collect and have collected, receive and receipt for the rents, income and proceeds thereof, and pay all taxes, ground rents, insurance, and other expenses therein (including a commission of five per cent, for their services), and after paying out of the net proceeds of said property and premises, the sum of one hundred dollars to Mrs. Holmes, of Grafton, West Virginia, should they think proper so to do to pay over from time to time the net income and proceeds of said property to my said son, Calvin H. Black, for and during the term of his natural life, and to hold the same in further trust, that upon the death of my said son, that then the said property and premises shall go to, and become the property and estate ¹⁴⁹ of Ms children and descendants then living, share and share alike per stirpes.” This controversy is certainly a very narrow one, and depends solely upon a question of punctuation. We are called upon to determine the meaning and effect of the particular location of the “ comma ” in that part of the above clause, which reads as follows: “ And after paying out of the net proceeds of said property and premises, the sum of one hundred dollars to Mrs. Holmes, of Grafton, West YirgiMa, shoMd they tMnk proper so to do to pay over from time to time the net meóme and proceeds of said property to my said son Calvin H. Black, for and durmg the term of Ms natural life, &c.” It is contended by the appellees that the “ comma ” appearing after the word YirgiMa, invested the trustees with discretionary power over the trust fund, and authorized them “ to pay over from time to: time the net income and proceeds of said property to my said son Calvin H. Black, &c.,” or not, as they might think proper so to do.

This, we think, would be giving, to a mere matter of punctuation a controlling force in the construction of wills, never yet, so far as we are aware, sanctioned or recognized in any authoritative statement of the law. This Court, in Weatherly vs. Mister, 39 Md.,629, has said that punctuation may perhaps be resorted to, when no other means can be found of solving an ambigmty, but not in cases where no real ambigmty exists, except what the punctuation itself creates. In such cases it will not be allowed to confuse a construction, otherwise clear. Iti is conceded that if the “comma” had followed or been located at the end of the phrase, “ should they think proper so to do,” then the discretion to be exercised by the trustees would have related solely to the payment of the one hundred dollars to Mrs. Holmes.

But we think the intent and meaning of the testatrix is clear beyond question, and the language used ought to be given its ordinary meaning, without regard to the location ¹⁵⁰ of the comma. If she did not mean that the rents of said trust property were to be for the benefit of her son Calvin, would she not have made some disposition of them? We think it is a fair inference to be drawn that she would. This trust was not certainly created for the benefit of Mrs. Holmes, and as the testatrix had already provided for her two daughters, it was but reasonable that in making a final disposition of her estate, she would in some way remember her only son, even though unworthy.

He might have forgotten her; but the converse is seldom ever true, that the mother forgets the son, unless improperly influenced by interested parties. So far as we have been able to discover, there is very little in the record, if anything, which reflects upon1 his character as a son. We think the language of the will is sufficiently clear to enable us to say with certainty that it created a trust for the benefit of the son, and we must here state that the trustees have signally failed to recognize and discharge their duties in the premises. They have allowed more than seven years to pass since the death of their mother without accepting either horn of their dilemma.

They have neither paid Mrs. Holmes nor their brother one farthing. The next question presented by this appeal relates to the true construction of the first and second clauses of the codicil. By the first clause of the codicil,