Carey v. Dykes

Offutt, J., delivered the opinion of the court. William P. Causey, a resident of Wicomico County, Maryland, died in March, 1905, leaving a last will, duly executed to pass real and personal property, dated October 22, 1902, which contains the following provision for thei disposition of his property: “I give and bequeath to my wife, Emma Y. Causey, all my personal estate her lifetime or widowhood, at ¹⁴³ her death or marriage I bequeath to my niece, Bertie E. Dykes, all my estate, both real and personal, by her paying James C. Causey, if he is living, if he should not be living, to his 3 oldest daughters, Lillie, Amy and Carrie, one hundred dollars, provided the estate amounts to five hundred dollars. If the estate does not amount to five hundred dollars, said Bertie shall pay one-fifth of what she gets. I also bequeath to my wife, Emma V. Causey, all my real estate, if any there be, at my death, and lastly I do hereby constitute and appoint my dear wife, Emma Y. Causey, to be sole executrix of this my last will and testament,” etc. The testator, who died without issue, was survived by Emma Y. Causey, his widow, and she died iu 1917, leaving to survive her1 as her heirs at law and next of kin certain collateral relatives.

The will from which we have quoted was in due course admitted to> probate in tbe Orphans’ Court of Wicomico County and, upon the death of Emma Y. Causey, Bertie E. Dykes, the devisee named therein, took possession of the property thereby devised and paid the legacies charged upon the devises and bequests made to her under the will. Some time after that she attempted to sell the real estate, but the prospective purchaser declined to- consummate the purchase on the ground that her title to the property was in doubt, since it was uncertain whether, under the will of William P. Causey, the title to his real estate passed to Emma Y. Causey absolutely or to Emma Y. Causey for her lifetime only and at her death to Bertie E. Dykes in fee. Bertie E. Dykes, for the purpose of procuring a construction o-f the will and of removing the doubt in regard to her title, brought this suit against the heirs at law of Emma V. Causey. The case coming on in due course for a hearing, and having been submitted for decree, the court decreed that, by the true construction of the will of William P. Causey, his real estate was devised in fee simple to Bertie E. Dykes, the appellee, subject to the life estate of Emma Y. Causey, and ¹⁴⁴ to the payment of certain legacies charged against it, and it is from that decree that this appeal is taken.

The only question before us therefore is whether William P. Causey meant, by the language employed in his last will, to devise his real estate to his wife Emma V. Causey for her lifetime only and at her death to her niece Bertie E. Dykes in fee, or whether he meant to devise it to his wife absolutely, and in our opinion this question is quite free from any serious difficulty. Causey did not have very much property. The only persons who appeared to be immediately dependent upon him were his wife and his wife’s niece, Bertie E. Dykes, who was for many years a member of his household. He had other relatives whom he wished to remember in a small way in the disposition of his property, but his principal desire seems to have been to provide as well as he could for his wife and the niece to whom we have referred.

These were the things he intended to do when his last will was prepared. Am. examination of the will shows that, after giving to his wife all his “personal estate for her lifetime or widowhood,” at “her death or marriage” he gave to Bertie E. Dykes all his “estate both real and personal” and charged the gift with the payment of one hundred dollars to persons designated in the will, provided the estate amounted to five hundred dollars, but if the estate amounted to1 less than five hundred dollar’s she was to give the persons named one-fifth of what she actually received under the will. Later, in the same item, the testator used this expression: “I also bequeath to my wife, Emma V. Causey, all my real estate, if there be any at my death.” The appellants’ contention is that these two expressions are so inconsistent that they cannot stand together, and that therefore by a well known rule of construction the one last used must prevail. That rule, however, can only be invoked to aid and never to defeat the real intention of the testator and where that