Brady v. Brady

Roberts, J., delivered the opinion of the Court. The record in this case brings before this Court for review and determination five appeals taken by various parties in interest from the decree passed by the Circuit Court of Baltimore City. The questions presented by these appeals have been argued together, and will be disposed of as hereinafter indicated. The bill was filed for the purpose of obtaining a judicial construction of certain provisions of the last will of Samuel Brady, Sr., late of Baltimore County.

The testator executed his will on the first of November, 1862, and died in December, 1871, and now after the lapse of more than twenty years since his death, doubts have arisen as to the construction proper to be placed upon certain parts of his will. The bill is filed by John W. S. Brady, in his own right, as the surviving administrator with the will annexed of the estate of Samuel Brady, Senior, and as trustee under the several trusts of said will, and as the administrator of the estate of Ann Mary Proctor Brady, deceased, widow of said Samuel Brady, Senior. The defendants are all the other parties interested in the estate of said testator. The first questions presented for consideration arise under provisions contained in the first and second clauses of the will, which read as follows: “ Firstly.

After the payment of my debts and funeral expenses, I do give and bequeath to my dear wife, Ann Mary Proctor Brady, for and during her natural life, all my estate, real, personal and mixed, with power to receive, take and collect the rents, issues and profits thereof, and the same to dispose of, in all respects, as she may think proper, and with power also to use at her discretion, exchange, dispose of and renew any of my personal goods and chattels requisite to the comfort and ⁴⁶⁴ enjoyment of herself and family. 1 further give and bequeath unto my said wife, her heirs and assigns forever, my two slaves, Priscilla Jones, and Ann, her daughter, to be by her disposed of by will or otherwise, as to her may seem best for their welfare. After the said life estate shall have expired, my will is: “Secondly. I give and bequeath unto my son, Benjamin Franklin Brady, now in California, and his heirs and assigns forever, the sum of sixteen thousand dollars, ($16,000,) to be paid to him or them within three years after the death of my wife, said sum to be provided for as follows, to wit: Firstly, the cash on hand belonging to the estate, as far as the same will suffice; secondly, the money realized from the payment or sale of promissory notes, and the sale of my Baltimore City stock, and other stocks and mortgages, and other securities, which I hereby authorize and direct shall be sold for that purpose; thirdly, all the money I have loaned my son, John William S. Brady, to be devoted to said fund; and fourthly, the proceeds of sale of my Pimlico Eoad farm, which I also will and direct shall he sold, the whole or so much of the above as may be necessary to be devoted to the payment of the said sum of sixteen thousand dollars, hereby devised to my son Benjamin, his heirs and assigns forever; and this devise is intended to be his entire share of my estate, and to except him as co-heir to the balance.” After the death of the testator, letters of administration, cum testamento annexo, were granted to John W. S. Brady and Samuel Brady, Jr., who qualified and proceeded with the settlement of the estate. On December 17th, 1872, they passed an account in the Orphans’ Court of Baltimore County, by which the entire residue of the personal estate, after paying debts, funeral expenses and costs of administration, was distributed and delivered over to the testator’s widow, it appears from ⁴⁶⁵ the testimony that the entire supervision of this residue, and also of the real estate of which the testator died seized, was, at the instance and on behalf of the widow, taken by her son Samuel Brady, Jr., who continued to give his attention to it, until his death, which occurred December 30th, 1890.

The testimony shows that all of the Baltimore City stock, all of the Franklin Bank stock, and three shares of the Frederick Turnpike stock were sold, and the proceeds delivered to the widow. Mrs. Brady, the widow of testator, died August 3rd, 1892. At the time of her death no part of the residue which had been turned over to her by the administrator remained, except one share of the Chesapeake Bank stock, three shares of Frederick Turnpike stock, the library, certain furniture of small value, and some old farming implements. The balance of the residue had been, by the widow, either consumed, lost or destroyed through use and decay, or applied in payment of taxes and other expenses on the real estate of the testator, which was largely unproductive.

The widow had also advanced out of said residue to testator’s son, Benjamin, the sum of seven thousand dollars, on account of the legacy of sixteen thousand dollars which had been bequeathed to him. Since the death of Samuel Brady, Jr., in December, 1890, his widow, Helen S. Brady, has sold the farming implements for the sum of eighteen dollars, the furniture has been in part sold and partly divided, by consent of the parties interested, and the library remains to be delivered to the parties entitled under the will. The question now arises as to whether the persona] representatives have made such disposition of the residue of the personal estate of their testator as was contemplated by him; and secondly, was the testator’s widow entitled to receive said residue, and treat it as if the items constituting the same, and the title thereto, ⁴⁶⁶ vested absolutely in her. These questions whilst not entirely free from difficulty are, we think, easy of solution.

We think the testator never intended to authorize his personal representatives to deal with the residue of his personal estate in the manner in which they have, nor did he have it in contemplation that his widow was ever to have any such dominion over said residue as she has asserted. In seeking t.o ascertain the testator’s intention, recourse should be had to the entire will, otherwise a very narrow and unnatural construction will follow, utterly at variance with the objects sought to be accomplished by the testator, and the true meaning of his testament. Taking the provisions of the first and second clauses of this will, it is clear, beyond all doubt, that in the first instance the testator intended to make “provisions requisite to the comfort and enjoyment of his widow and family;” and in the second, in equally clear and express terms, to bequeath as a legacy to his son Benjamin, the sum of sixteen thousand dollars. The first and second clauses should be read together, for the reason that neither is capable of proper construction, without the aid of the other; but, considered together, proper regard being had to the provisions generally of the whole will, there does not appear to he much difficulty in ascertaining the testator’s true meaning.

Yet we do not think that the first clause, taken by itself, admits of any such construction as that which governed the conduct of the administrators in turning over the residue of the personal property to the widow. The testator says: “After the payment of my debts and funeral expenses, I do give and bequeath to my wife Ann Mary Proctor Brady, for and during her natural life, all of my estate, real, personal and mixed, with power to receive, take and collect, the rents, issues and profits thereof, and the same to dispose of in all respects as she may think proper;” therefore the power “to receive, ⁴⁶⁷ take and collect,” can by no possibility refer to anything more than the rents, issues and profits of the whole estate. These the widow is empowered “to dispose of in all respects as she may think proper.” Then follows the words, “and with power also to use at her discretion, exchange, dispose of, and renew any of my personal goods and chattels, requisite to the comfort and enjoyment of herself and family.” Here we have an absolute control over the rents, issues and profits of the entire estate, and only a power in her discretion to exchange, dispose of, and renew the “goods and chattels,” to an extent requisite to the comfort and enjoyment of herself and family. It is proper here to remark that a power conferred must not be confounded with an estate conveyed.

The power of the widow to use and enjoy the life estate is broad and comprehensive, but not sufficiently so to change the character of the estate which she took under the will. The power to use confers no authority to consume or destroy, unless a reasonable use is the consumption or destruction of the subject of the bequest. If, however, any doubt could be entertained as to the testator’s intention, respecting the estate which his widow took, reference need only be had to the provisions of the second clause of the will, which is preceded by these suggestive words: “And after the said life estate shall have expired my will is;” then follows the clause in which provision is made in express terms for a legacy of sixteen thousand dollars to be paid to testator’s son Benjamin, his heirs and assigns forever, within three years after the death of the widow. The legacy is clearly demonstrative in character, and its sources of payment are distinctly and definitely pointed out, and the testator, in the latter part of the second clause, says that, “this devise is intended to be his (Benjamin’s) entire share of my estate, and to except him as co-heir to the balance.” Like restrictions will be found in ⁴⁶⁸ various clauses of the will, and notably the twelfth, imposed by the testator upon the interest which Benjamin takes under the will.

The items of account which go to make up the residue of the personal property turned over to the widow by the administrators, as declared by the inventory, list of debts, and the account, are mainly those which the testator had dedicated to the payment of Benjamin’s legacy, and were not intended to be destroyed or consumed by their use or appropriation by the widow. •The terms employed by the testator in creating this legacy not only point out the funds from which it shall be paid, but they indicate in the plainest manner how the funds themselves shall be applied. When he names the first class he says, “the cash on hand belonging to the estate, as far as the estate will suffice;” he does not however refer to any balance remaining unspent or undisposed of, but a fund, the issues and profits of which should go to the widow during life, and at the expiration thereof, the cash on hand at the time of his death to be applied in payment of the legacy so far as the same may be sufficient for the purpose. In no part of this testament is there any reference to a sale of stocks, mortgages, promissory notes and other securities, save that which is to be found in the second clause; and after referring to them, he says, “which I hereby authorize and direct shall be sold for the purpose of supplying a fund from which Benjamin’s legacy shall be paid.” Here he gives a clear and distinct assertion of his wishes and intentions, and it appears to us difficult to misconceive or misconstrue them. The second clause then continues: “Thirdly, all the money I have loaned my son John W. S. Brady, to be devoted to said fund;” and “fourthly, the proceeds of sale of Pimlico Road Farm,” which, however, the testator, after executing his will, sold, and the legacy as to this fund became and was ⁴⁶⁹ thereby adeemed.

If the construction contended for by the appellant in the first of these appeals, be the one proper to be applied, that is to say, that the course pursued by the administrators in turning over said residue to the widow, was in accordance with the true meaning of the testator, and that the widow was authorized to dispose of said residue, as stated, then the testator in putting into his testament the second clause thereof, acted without proper motive, and in an