Bourke v. Boone

Page, J., delivered the opinion of the Court. This appeal comes up from the decision of the lower Court ⁴⁷⁶ made on a case stated, under Rule 47 of the Equity Rules. On the 13th of April, 1875, Georgie Linstid made and executed her last will and testament, the disposing clauses of which are as follows : “Item. I give and bequeath to my brother, John Linstid, all the land belonging to me ; being my part which I obtained from my father, and adjoining the lands of Thomas Robinson’s heirs, and James Stalling’s heirs, to.have and to hold so long as he may live, and at his death, then the said land, I give and bequeath to my niece, Alice V. Boone, and her heirs forever. “Item.

I give and bequeath to my brother, John Linstid, the rent of all that lot of ground, lying in the city of Baltimore, and described in a deed which I hold, and conveyed to me by W. C. Pitcher and others ; which will describe more fully, to have and to hold said ground rent so long as he may live, and at his death, the said ground rent to go to my niece, Alice V. Boone and her heirs forever. “Item. I give and bequeath unto my brother, John Linstid, my half of all personal property, that we may have, both personal and mixed, to have and to hold as long as he.may live, and at his death, I give and bequeath to my niece Alice V. Boone and her heirs forever.” On the same day her brother, John Linstid, also made his will by which he devised and bequeathed to his sister Georgie, all the land on which he lived, as well as all the personal property that he should have at the time of his death. John Linstid died in the year 1880, without revoking or cancelling this will. Georgie died in 1900.

At the time of her death, in addition to the property she had at the time of the execution of her will, she was seised and possessed of the real estate which passed to her under the devise in the will of her brother, John. She left surviving her, as her heirs-at law and next of kin, four nephews and one niece, the latter being the Alice V. Boone mentioned in her will. The question submitted to the Court was whether, “the said Georgie Linstid died intestate as to the tract of land which ⁴⁷⁷ she took under the will of her brother John ; or did it pass to the said Alice V. Boone, the remainder-man mentioned in the will of the said Georgie Linstid ?” It is contended that under the provisions of sec. 321 of Art. 93 of the Code, this after acquired property passed under her will to Alice V. Boone. The effect of that section of the Code was stated by Judge Alvey in Rizer v. Perry, 58 Md. 121 .

In his opinion, he said, that by that section, “the will is simply made to speak as of the time of the death of the testator, and in that respect changed the former rule of construction or operation of wills. But it has never been supposed that it was the design of that provision to pass the real estate of the testator, irrespective of his real intention.” And this Court in its opinion, in the same case, (p. 137) said : “The effect of the decision in Rea v. Twilley, ( 35 Md. 409 ), is to reassert the presumption in favor of the heir, and to restate the doctrine, that the intention is the main object of search in the construction of wills.” We take it to be clear, (notwithstanding anything in this statute) that what we must ascertain in this case, as in all others for the construction of wills, is to learn what the testator intended ; such intention to be collected from her own words; and if we cannot find she has given the estate to some one else, it must go to her heirs. Zimmerman v. Hafer, 81 Md. 357 . Though there should appear an intention to disinherit the heir,yet as was said in the case just mentioned,citing from Lord Mansfield, the heir “ must inherit, unless the estate is given to somebody else; and the reason is, that the law provides how a man’s estate at his death shall go, unless he, by his will, plainly directs that it be disposed of differently.” Ridgeley v. Bond, 18 Md. 448 .

In Rea v. Twilley, 35 Md. 409 , it was said, that the heir is not to be disinherited, “ except by express words or by necessary implication.” And further, in arriving at the meaning of the testator, we must not confine our intention to parts of the instrument, but “ must look at the whole will, and read it in the light of the circumstances in which the testator was ⁴⁷⁸ placed, and the nature of her property and estate. ” Stannard v. Barnum, 51 Md. 452