Buchanan v. Lloyd

Schmucicer, J., delivered the opinion of the Court. This is an appeal from a pro forma decree of the Circuit Court for Talbot County dismissing a bill filed by the appellants, who are the children of Ann Buchanan and those claiming under them, to enforce certain rights asserted by them under the will of their grandfather, Ex-Governor Edward Lloyd. Governor Lloyd died in 1834 leaving surviving him a widow and three sons and four daughters. By his will, executed in 1829, after making suitable provision for his widow, he gave certain property to each of his three sons absolutely and also gave them other property in trust for each of his four daughters for life with remainder to her children.

The residue of the real estate was given to his son Edward and the residue of the personalty to the three sons who were made the executors of the will. The share of each daughter was given to the trustees for and during her life “ and no longer,” and the remainder therein was, at her death, given directly to her children without the intervention of the trustees. The property- appropriated in this manner to the use of the testator’s daughter Ann Catherine, afterwards Ann Buchanan, and her children, consisted of a farm called Davis Farm ” and $5,000 in money and certain woodland contiguous to the farm. On April 12, 1834, Governor Lloyd made a codicil to his will of which the portions material to this controversy are as follows: “ I hereby revoke all that part of my will in which I give and devise to my daughter, Ann Catherine Lloyd, my farm called ‘ Davis Farm ’ with one hundred and fifty acres of woodland contiguous to the same, and in lieu thereof I give, devise and bequeath to my sons Edward Lloyd, James M. Lloyd .and Daniel Lloyd and the survivors or survivor of them in special trust for the use and benefit of my daughter, Ann Catherine Lloyd, agreeably to the provisions and ⁶⁴⁵ conditions of the trust in said will expressed, the sum of fifteen thousand dollars (in addition to the sum of five thousand dollars given and devised in said will) which fifteen thousand dollars I will and direct shall be paid as follows, ten thousand dollars to be paid by my son Daniel Lloyd and five thousand dollars to be paid by my son Edward Lloyd, and I hereby will and direct that until the above respective sums are paid over and invested in some safe fund for the use and benefit of my said daughter, Ann Catherine Lloyd, that my said sons, Edward Lloyd and Daniel Lloyd, shall annually pay to their sister legal interest for the same.” “ In consideration of the payment of ten thousand dollars by my son, Daniel Lloyd, to his sister, Ann Catherine Lloyd, I give, devise and bequeath to my son, Daniel Lloyd, his heirs and assigns, ‘ my farm called Davis Farm together with one hundred and fifty acres of woodland contiguous to the same,’ which in my will is devised to my daughter, Ann Catherine Lloyd.” “ In consideration of the legacies of five thousand dollars to my daughter, Ann Catherine Lloyd, and five thousand dollars to my daughter, Mary Ellen Lloyd, directed by this codicil to be paid by my son Edward Lloyd out of his part of my estate, and for and in consideration and full payment to him of whatever sums I may owe him at the time of my death either on bond, note or open account, I do hereby give and devise to my son, Edward Lloyd, his heirs and assigns, my farm called £ Hopewell,’ composed of and containing all the land purchased by me of Richard Parrotts and Fayette Gibson, except such parts as are devised as parts of £ Knightly ’ farm to my daughter, Elizabeth Tayloe Winder, and such parts as are devised to my daughter, Sally Scott Lowndes, adjoining and contiguous to the land purchased of Edward Lloyd Nicholson, provided that if the legacies and sums due by me (as above expressed) to my son, Edward Lloyd, amount to more than the sum of fifteen thousand dollars, then the excess above the sum of fifteen thousand dollars shall be deemed and considered a debt due by me to my son, ⁶⁴⁶ Edward Lloyd, and shall be paid accordingly out of my whole estate.” Ann Catherine Lloyd married Franklin Buchanan, whom she survived, and lived until 1892, fifty-eight years after the death of her father.

The three sons of Governor Lloyd, who were made trustees under his will for their sisters, died as follows, to wit: James M. in 1847, Edward in 1861, and Daniel in 1875. By an order of the Circuit Court for Talbot County, passed May 21, 1863, on petition of Ann Buchanan, the appellee Edward Lloyd, a grandson of Governor Lloyd, was appointed her trustee in lieu of his uncle, Daniel Lloyd, the then surviving trustee who declined to further act as such. In 1847 Daniel Lloyd sold his interest in “ Davis Farm ” to William Johnson, who in 1849 sold it to Daniel’s brother Edward Lloyd, who thereafter held both Davis and Hopewell farms until his death in 1861, when he devised them with much other valuable property to his son, the appellee Edward Lloyd, whom he made his executor and residuary legatee and devisee. Both Governor Lloyd and his son Edward left ample personalty to satisfy all debts and legacies but no part of the $5,000 left by the will or the $15,000 left by the codocil in trust for Ann Buchanan is shown by the proceedings to have been invested for her or paid to her, except the sum of $7,500, which Edward and Daniel Lloyd, the then surviving trustees, invested in 1847 in a farm called “ The Rest,” taking the deed for it in their names as surviving trustees for Ann Buchanan upon the limitations and for the uses declared in her father’s will.

It does not appear with entire certainty from what source the $7,500 invested in “ The Rest ” came, but the deed conveying that farm to the trustees recites the gift by Governor Lloyd’s will of the Davis Farm and $5,000 to his sons in trust for Ann Buchanan with remainder to her children, the revocation by the codicil of the devise of the Davis Farm and the gift in lieu thereof of the $15,000 legacy in trust, and then states that “ The Rest ” had been purchased “ in virtue of the ⁶⁴⁷ last trust so referred (reposed?) in them and for the purpose of investing a portion of the said trust fund.” We therefore think that the $7,500 so invested should be regarded as having been appropriated to the $15,000 legacy given by the codicil. The record shows that “ The Rest ” came into possession of Ann Buchanan’s children at her death and was sold by them at a handsome profit over its cost. Edward Lloyd, the father of the appellee, continued until his death in 1861 to pay to Ann Buchanan the interest on the $12,500, uninvested balance of the two legacies of $15,000 and $5,000. After his death his son, the appellee Edward Lloyd, to whom he devised the Davis and Hopewell farms, continued to pay interest on the $12,500 to Ann Buchanan until her death in 1892 and after that he paid the interest to her children until August, 1895.

Edward Lloyd, the appellee, also paid as hereinafter mentioned to certain of the children of Ann Buchanan, on account of the principal of the $12,500, sums amounting in the aggregate to $4,125.20. The bill, which was filed on June 30, 1897, against the appellee Edward Lloyd and his grantees of Davis and Hopewell farms, asks for an accounting by him in respect to the two legacies of $15,000 and $5,000, and that the balance ascertained to be due thereon may, so far as it is due on the $15,000 legacy, be declared to be a lien and charge upon the Davis and Hopewell farms. The appellees in their answers deny the right of the appellants to relief and contend that under the true construction of the will and codicil neither of the legacies was charged upon the land, and further contend that the $15,000 legacy was given for the life of Mrs. Buchanan only and that her children have no interest in it. The appellees, other than Edward Lloyd, also set up the defences of limitation and laches.

The first question presented by the record is whether the $15,000 legacy given by the codicil was intended only for the use of Mrs. Buchanan for life, or was to go at her death to her children in the same manner that the $5,000 legacy ⁶⁴⁸ given by the will went and the Davis farm, in lieu of which the $15,000 legacy was given, would have gone under the terms of the will if there had been no codicil. We think that the remainder in the $15,000 legacy after Mrs. Buchanan’s death was intended to go to her children and that the testator in the part of the codicil now under consideration when he spoke of his daughter Ann, both in revoking the devise of the Davis farm and in giving the $15,000 legacy, in lieu of the farm, used her name in a representative sense and meant thereby Ann and her children, and that he intended merely to change the subject-matter of the provision made for them and did not intend to deprive the children of their participation in such provision. He repeatedly, both in the will and the codicil, used the names of his several daughters in this representative sense when speaking of the disposition of his property. In the 5th clause of the will he refers to certain land as “ hereinafter devised to my daughter Mary Ellen Lloyd,” in the 5th clause of the codicil he describes other land as that “ which in my will is devised to my daughter Ann Catherine,” and in the 6th clause of the codicil he excepts from the devise of Hopewell “ such parts as are devised as part of Knightly farm to my daughter Elizabeth Tayloe Winder, and such parts as are devised to my daughter Sally Scott Lowndes,” when in fact none of the parcels of land so designated were devised to the daughters but they were in each case devised to trustees for the benefit of the daughter for her life only and the remainder was devised directly to her children.

Again in the tenth clause of the will he gives to the surviving husbands, of such of his daughters as may leave no issue, for their respective lives, “ all of the said property real and personal hereinbefore given to his, her or their deceased wives respectively ” when in fact no property had been given to the daughters, except a few chattels, other than equitable life estates which of course terminated at their death. The surviving husbands would have taken nothing under this devise unless the testator in describing the subject-matter of the gift used the ⁶⁴⁹ word “ daughters ” in a representative sense and meant thereby daughters and their children. It is by the use of the name of Ann Catherine in this representative sense in the codicil that the devise by the will of the remainder in the Davis farm to her children is revoked. There is no express reservation of it.

The intention of the testator to give to the children of his daughter Ann the remainder after her life in the legacy of $15,000 made by the codicil is further evidenced by the fact that he gave the legacy expressly in lieu of the Davis