Bowdle v. Hanks

Henderson, J., delivered the opinion of the Court. This appeal is from a decree of the Circuit Court for Talbot County, in equity, construing the will of Emily C. Bowdle who died in June, 1895. Her will, executed September 10, 1894, was probated on June 11, 1895. She was survived by a daughter, Nannie B. Highley, a son, Charles E. Bowdle, and five grandchildren, namely: A Bowdle Highley, son of Nannie Highley; Florence Bowdle, Alexander Bowdle, Alice Bowdle and Charles Bowdle, Jr., children of Charles E. Bowdle.

At the time of the execution of the will Nannie B. Highley was 39 years of age and Charles E. Bowdle was 40 years of age. The ages of the grandchildren were Bowdle 5, Florence 12, Alexander and Alice 10, and Charles, Jr. 8. Charles E. Bowdle died in 1907, leaving his four children surviving, and Florence, Alice and Charles, Jr., all died without issue. Alexander died in 1923 leaving one child, Alexander, the defendant in this suit.

Nannie Highley died in 1936, leaving one child, Bowdle. Bowdle died testate and without issue on December 16, 1960, being the last surviving grandchild of the testatrix. By his will he bequeathed and devised the residue of his es' tate to the plaintiff trustees. By item 1 of her will, Emily C. Bowdle bequeathed the sum of $200.00 to her son Charles, upon condition that he be living at the time of her death, in consideration of work rendered ³⁵⁴ in building her home.

If he predeceased her, the legacy was to fall into the residue. By item 2 she bequeathed to her daughter Nannie, in trust for her grandchildren Florence, Alice, and Charles, Jr., all the moneys owed her by Charles, in sundry notes amounting to about $3,000.00. “Should the indebtedness increase before my death,” she directed that the excess should be carried into the residue. She directed Charles to secure the indebtedness by mortgage, but that no interest or principal be collected during his life. Nannie was directed to expend the interest for the education and maintenance of the three grandchildren, and to pay them the principal in equal shares when they reached the age of 21, in her discretion, in any event when they reached 25.

Another clause provided for gifts over to the others if any of these grandchildren should die without issue prior to the payment of the legacy to them. Item 3 bequeathed to Nannie the sum of $2,000.00, in trust for the grandson of the testatrix, Alexander, upon conditions similar to those in item 2. Item 4 left all the rest and residue of her property, including her dwelling in Trappe, her farm in Ferry Neck of 160 acres, and a house and lot in Ferry Neck, to Nannie for life and after her death, to her son Bowdle Highley “and if the said Bowdle Highly should die leaving no children or descendants of children, then the said property so devised and bequeathed shall go to the surviving children and the representatives of any deceased child or children of my Son Charles E. Bowdle. In the possible event of the death of the said Nannie B. Highly and the said Bowdle Highly before the time limited in Section 2 of this Will for the payment of the legacies to my Grand-children, I direct that the same provisions, conditions and limitations therein made, shall apply to the property in this section devised and bequeathed and that some suitable person to be named by the Court in the place and stead of said Nannie B. Highly other than a member of my Son Charles’ immediate family, shall faithfully carry out said provisions, conditions and limitations.” Nannie was appointed executrix, and excused from bond.

She was also given power to invest and reinvest. The appellant contends that the bequest and devise con ³⁵⁵ tained in Item 4 created a remainder in fee simple in Bowdle Highley, subject to an executory devise, in the event of his death at any time “leaving no children or descendants of children”, in favor of the “surviving children and the representatives of any deceased child or children of my son Charles E. Bowdle.” The appellees contend, on the other hand, that Bowdle Highley took the property in fee simple absolutely upon his mother’s death. It is an established rule of construction in Maryland, as well as in other states, that where there is a gift of a life estate with remainder to a named person, but a limitation over to another in the event the remainderman should die without issue, the presumption is that the words refer to the contingency of the death of the remainderman before the death of the life tenant, unless a contrary intention appears from the will. The principle is illustrated in the case of Zeller v. McGuckian, 190 Md. 298 .

Cf. Booth v. Eberly, 124 Md. 22 , Fairfax v. Brown, 60 Md. 50 , James v.