Brian v. Tylor

Thomas, J., delivered the opinion of the Court. Thei question presented by this appeal arises on an exception to an auditor’s account filed in the Circuit Court for Talbot County, and involves the construction of one of the clauses of the will of Isaac Davis Clark of that county. The testator gave his dwelling house and all the lands “thereto attached” to his wife, Jane E. Clark, during her life, and the will provided that at her death “they shall revert to my heirs in direct descent, as a common estate the right of each therein, to be according to existing laws regulating inheritances in this State.” He also gave her all the furniture in his dwelling house, and all farming implements, cattle and crops on the premises, and provided that said “legacies” and the trust thereinafter created for her benefit were in lieu, of her “dower right” in his remaining real estate and “her distributive share” of his personal estate. He gave to Robert B. Dixon of Talbot County the sum of $80,000 and the further sum of $8,000, in trust to invest the same and to pay the net income from the $80,000 to his wife during her life, and the net income from the $8,000 to his coiisin, Emily S. Maddox, during her life.

The next clause of the will and the one with which we are particularly concerned is 'as follows: “These trusts shall cease at the death of my said wife and my said cousin as they shall respectively ¹⁴⁷ occur, and -the principal sums of said trust funds together with any and all interest and income which shall not have been paid to them while living shall be paid by said trustee to my heirs in direct descent-, to be distributed and paid to them in the same share® as though it was the balance of an intestate’s personal estate.” The testator also gave to Robert B. Dixon the sum of $25,000 “in special trust and confidence” to use the whole or any part thereof in defending any suit instituted to set-aside his will or “disputing any of its provisions,” and provided that said trust should continue until his estate was finally closed and distributed by his executor therein named, and that “then all of said fund in case of no suit or any balance in case of a suit with any interest that said fund may have earned shall be duo and payable to my heirs in direct descent to be distributed to them as though it was the balance of an intestate’s personal estate; provided however that if any such heir shall have- been a party to any suit to disturb' this will lie, she or they shall have no share in this fund, and shall be excluded in its distribution.” The test and residue of his estate was given to the testator’s “heirs in direct descent the same to be shared according to laws existing in this State regqlating inheritance and distribution.” The will provided how the partition of his real estate anti the distribution of the residue of his personal estate should be made; that his daughter, Sallie S'. Brian, should he charged with $10,000 advanced to her at the time of her marriage, and then appointed Robert B. Dixon executor. The will was dated .February 5th, 1883, and hv a codicil thereto, executed on the 17th of December, 1887, the testator revoked the bequest of $25,000 to be used in defending his will, and gave “all that portion” of his estate bequeathed and devised to his daughter, Sallie S. Brian, to Robert B. Dixon, in trust to pay the income therefrom to his sa'id daughter during her life; and at her death, leaving a child or children surviving her, to deliver the real estate and to ¹⁴⁸ pay the principal sum given him in trust for his said daughter to her child or children. The codicil contained the further provision: “But should my aforesaid daughter die without issue surviving then it is my will that all my estate real and personal by this codicil bequeathed unto'Robert B. Dixon in trust for my daughter Sallie shall revert to my legal heirs then living and shall be distributed among them as by law now provided in the case of a person dying intestate.” It appears by the “agreed statement of. facts” that the testator died in 1888 leaving surviving him his wife,' Lane F: Clark, who died in 1895, and four children, viz: Sallie S. Brian, May Clark, Nellie B’.

Clark and James F. Clark, as his only heirs at law and next of kin. Sallie S. Brian, who is still living, was at the death of the testator thirty-four years of age, and had been married to J ames Brian for more than six years. They had no children and James Brian has since died without leaving any child or descendants'. May Clark, at the death'of the testator, was twenty-four years of age and unmarried.

After his death she married J. Edward Tylor and died in 1896 “intestate and without issue.” Nellie B, Clark after1 the death of the testator married Thomas W. Greenley, and she and her husband have since died leaving two children, Lenore C. Greenley, who married J. Rowland Chaffinch, and Alexander 0. Greenley. James F. Clark is still living. Emily S. Maddox, cousin of the testator, died in 3915 at the age of seventv-six years.

It. further appears from the agreed statement of facts that the will was drawn by Charles R. Mullikin, Esq., “an ex-register of wills? of Talbot County, and that the codicil thereto is in the handwriting of Colonel James 0. Mullikin, a member of the Talbot bar. In the account to which the exception was filed the auditor distributed the legacy of $8,000: One-third thereof to S'allie S. Brian, one-third to James F. Clark and the remaining one-third to Lenore O. Chaffinch and Alexander C. Greenley, ■'children of Nellie B. Clark, as the heirs of the testator at ¹⁴⁹ tlie death of Emily S. Maddox, and the account was excepted to by J. Edward Tylor, the surviving husband of May Clark, on the ground that he is entitled to the one-fourth his wife would have received if she had survived Emily S. Maddox. The learned Court below sustained the exception, and this appeal is from its order directing the fund to he distributed: One-fourth to Robert B. Dixon, trustee of Sallie R. Brian; one-fourth to James F. Clark; one-fourth to the administrator of Eelliei B. Greenley, and the remaining one-fourth to J. Edward Tylor.

The only objection urged to the order appealed from is to the allowance of one-fourth of the legacy to J. Edward Tylor, the contention of the appellants being that the fund should he distributed to those1 who were the “heirs.” etc., of the testator at the time of the death of Emily S. Maddox, while the appellee contends that it goes to those who were his “heirs,” etc., at the time of his death. In other words, tlie sole question raised hy the respective contentions of the parties is, 'When did the estates in this fund bequeathed to the testator’s, “heirs in direct descent” vest í The answer to that question must depend upon when Isaac Davis Clark intended them to vest. Where the intention of the testator is made clear by tbe terms of the. will his wishes, must prevail unless in conflict with some- settled principle of law. But where the words employed are of doubtful meaning, courts in an effort to arrive at tbe testator’s intention must seek the aid of settled rules of construction.

Here there are two periods to which the words “my heirs in direct, descent” might refer, namely, the death of the testator and the death of Emily R. Maddox, and in the absence of an intention on tlie part of the testator, plainly expressed, to postpone the vesting of tlie etsates until the latter period, this Court, in accordance with tlie established rule of construction and in furtherance of the presumed intention of the testator, must adopt the earlier one. In the case of Meyer v. Eisler, 29 Md. 28 , Curnr Judgk Bartol quotes the language of the Court in Snively v. ¹⁵⁰ Beavans, 1 Md. 208 : “The law is said to favor the vesting of legacies, and hence to defeat a bequest of this kind, it must appear from the nature and circumstances of the case, that the time of payment was made' the substance of the gift, and that the testator meant that time as the period when the legacy should vest,” and the statement of the general rule by Mr. Jarman (Yol. 1, 727), “that where a testator creates a particular estate and then goes on to dispose of the ulterior interest, expressly in an event which will determine the prior estate, the words descriptive of such event, occurring in thei latter devise, will he construed as referring merely to the period of the determination of the possession or enjoyment under the prior gift, and not as designed to postpone the vesting,” and then says: “The rule is, if the legatee be capable of talcing, £no mere postponement of the time of payment, will prevent his having a vested and transmissible interest.’ Here there is nothing on the face of the will to indicate the intention of the testator to postpone the vesting of the estate till the happening of the event named; that is not of the substance of the gift, but points merely to the period of possession or enjoyment.” In Tayloe v. Mosher, 29 Md. 443 , Judge Mildeb said: “It is very difficult, in anjease, to gather the intention of the testator from the language employed in the will, where events have occurred which probably were not in his contemplation when the will was executed, and the present case is surrounded with more than usual embarrassment and doubt. The intention is certainly in every case the object of ascertainment; but, wherever there is- doubt and difficulty,- the Courts must resort for aid -to settled rules of construction. The most important of these and indeed the only one which seems to be general, definite and fixed is that the law favors the vesting of estates, and where words of futurity are employed thejr are not to be regarded as importing contingency or as postponing the period of vesting, if they point merely to deferred possession or enjoyment.” After referring to the argument of counsel against the vestings that the devise in that case was to trus ¹⁵¹ tees to pay and transfer at a future period to a class of individuals “with provision that the income shall in the meantime accumulate,” he said further-: “But it makes no difference as to the vesting, whether the legal estate he devised to trustees who- are required to convey according to the directions of the will, or whether the interest is provided to take effect without the intervention of trustees, nor that the trust provides for the accumulation of income until the period of payment or distribution arrives.

These propositions are settled by numerous authorities in England, as well as by the recent decisions of this Court.” In the case of Crisp v. Crisp, 61 Md. 149 , the testator devised his farm to trustees-, in trust that his wife should he permitted to enjoy the same and receive therefrom the rents and profits until such time as the trustees should have an offer therefor of $100,000 and directed that $50,000 of the proceeds of such sale should he invested and the income therefrom paid to his wife during her life, and that at her death the “said $50,000 * * * shall go to and become the property and estate of such person or persons as would, by the now existing laws of the State of Maryland, he entitled to take an estate in fee simple in lands by descent from me, and the heirs, executors and administrators, of such person or persons, per stirpes and not per capita,All the rest and residue of his property he gave to his “legal heirs under the laws of the S'tate of Maryland, in the same way as it would without a will; subject, however, to the dower interest and distributive share of my wife.” The farm. was. sold for $100,000 and the widow and those who were -the heirs at law of the testator at the time of his death wished to divide the $50,000 allotted to the widow between them. The Court, after stating that the only question to he decided was whether the remainder in this $50,000 vested in the heirs of Richard O. Smith (the testator) at the time of his death or at the termination of the life estate of the widow, said: “The Oourt of Appeals has long since announced in the broadest terms- the general rule, that, the law favor's the vesting of estates, and that to make ¹⁵² an estate contingent, it must appear from the language used and the nature of the circumstances of the case, that the time for payment was1 made the substance of the gift. The estates will be held to .be vested whenever it can be fairly done without doing violence to the language of the will, and to make them contingent there must be plain expressions to that eff ect, or such intent must be so plainly inferrible from the terms used as to leave no room for construction. Tayloe v. Mosher, 29 Md. 443 , adopted in Fairfax v. Brown, 60 Md. 50 .

If the law. thus favors the vesting of property it necessarily favors its vesting at the earliest period. Every postponement . of vesting renders it contingent and uncertain at least as to the person who is to take. Eg reason can be assigned as to the vesting itself that will not apply to the earliest period. In the absence of plain expressions or intent plainly inferrible from the terms of the will, the earliest time for the vesting will-be adopted where there is more than one period mentioned in the will.

It is a question of intention and the testator has ample power to fix the period of vesting to suit himself (always -within the time the rule of law fixes), but he must' indicate his wish with reasonable certainty, for if he does not -the law will presume he intended thei. earliest