Chilcoat v. Reid

³⁸⁰ Offutt, J., delivered the opinion of the Court. Edward Pickering Philpot, of Baltimore County, Maryland, on February 8th, 1883, executed in due form his last will and testament, in which he undertook to dispose of his entire estate. The provisions of that will which are germane to the issues in this ease are as follows: “I give and devise to my dear wife Anna my farm whereon I now reside known by the name of ‘Stamford’ containing as pr record, about one hundred and ninety-six acres of land more or less and also a wood lot containing twenty-five acres more or less, being a part of a tract of land called Philpot’s Enquiry, adjoining the lands of Ephrian Harris and Willis Wools-ton during her natural life and from and after her decease, I give and bequeath the same to my nephew Brian Philpot, who now resides in Chicago, Illinois. “I devise and bequeath the residue of my estate both personal and mixed to my dear wife, including household furniture, etc., said bequest to be understood and considered as exclusive of her life estate as heretofore set forth and expressed in this my last will and testament.” On September 22nd, 1883, he executed also in due form a codicil to that will in the following form: “How, I, Edward Pickering Philpot, do will, devise and bequeath as follows, viz: Prom and after the death of my dear wife, I give, will and bequeath to my nephew Brian Philpot, who now resides in Chicago, the farm whereon I now reside, known by the name of ‘Stamford,’ containing about one hundred and ninety-six acres of land, more or less, and also a wood lot mentioned in my said will and testament, said wood lot containing twenty-five acres of land, more or less, and called ‘Philpot’s Enquiry,’ provided the said Brian Philpot, his heirs, executors, administrators or assigns pay to my great niece Lizzie Philpot, now residing in Erederick County, Maryland, she being a daughter of my deceased nephew, Edward Philpot, the sum of ³⁸¹ sixty dollars ($60.00) per annum during the lifetime of my dear wife, the first payment of said sum of sixty dollars to be made in May, eighteen hundred and eighty-four, and so on in every year during the natural life of my dear wife, at whose death the payment of said annual sum of sixty dollars to my said niece, Lizzie Philpot, shall end and cease, as it may be ended and determined at any time by the payment of the sum of one thousand dollars to the said Lizzie . Philpot by the said Brian Philpot, his heirs, executors, devisees or assigns.” After his death, which occurred in 1890, both the will and the codicil were admitted to probate in the Orphans’ Court of Baltimore County, and on December 6th, 1924, his widow Anna (who after his death married Edward E. Chilcoat), filed a bill of complaint, in the Circuit Court for Baltimore County, for the sale of the real estate described in the codicil, in which she named as defendants all the heirs at law of the testator, and of Brian Philpot, and all persons claiming by through or under them, so far as they were known to her.

The several defendants, who appear to be all the persons who have or could have any claim to the estate of the testator, answered the bill, admitted the jurisdiction of the court, consented to the passage of a decree for a sale of the real estate described in the bill, and reserved all questions concerning the construction of the will and ■codicil for determination by the court in connection with the distribution of the proceeds of any sale of the real estate which the court might direct. A decree was accordingly passed for the sale of the real estate, and Samuel K. Smith, Esq., and Daniel R. Randall, Esq., were appointed trustees to make the sale. In due course they qualified and reported .a sale of the property at a price which left in their hands for distribution $13,388.46. That sale was' ratified, and the ■case went to the auditor, who filed an account distributing that fund to Anna P. Chilcoat, the widow of the testator.

Exceptions to that account were filed respectively by certain heirs of Edward P. and Brian Philpot, and by certain per ³⁸² sons claiming as creditors or legatees an interest in the fund, and after a hearing and testimony those exceptions were sustained, and the fund distributed to the heirs at law of Edward P. Philpot, subject to the life estate of Anna P. Chilcoat. From that order Anna P. Chilcoat and certain of the except-ants appealed. The case comes to this court upon the record facts which we have stated, upon certain other facts embodied in an agreed statement, and upon certain testimony given by Mrs. Chilcoat and Brian E. Philpot, but before referring to those additional facts and that testimony, we will state the respective contentions of the several parties to the appeal. Mrs. Chilcoat, as the widow of the testator, contends (1) that Brian Philpot has no interest in the land (a) under the will, because he failed to make the payments called for by the devise to him, or (b) as the heir at law o'f the testator, because (2) the heirs at law of the testator have m> interest in it, since upon the failure of the devise to' Brian, the land fell into' the residuum of the estate, and (3) passed to. her under the residuary clause of the will.

The heirs of Brian Philpot claim (1) that distribution at. this time is premature, since changes may occur prior to the death of the life tenant which will affect the devolution of' the estate, (2) that if the devise -to Brian failed for any reason, that the testator died intestate as to the estate in the-land remaining after the life estate, but thait (3) it did not fail because, even though Brian did not make the payments, called for by the codicil, they were made by his heirs, and that payment by them gratified the requirements of the codicil, since such payments could be made ait any time during the life of the life tenant. The heirs of Edward Pickering Philpot contend that, Brian Philpot having failed or refused to' make the payments required by the codicil, the devise to' him failed, that the testator died intestate as to the estate in the land' remaining after the death of the life tenant, and that the land passed to his heirs at law. The personal representatives and legatees under the will ³⁸³ of Elizabeth Philpot Joliife, née Philpot, and certain legatees claiming under her will, contend that the devise to Brian did not fail, but vested in him subject to a charge in favor of Mrs. Joliife, and that her personal representatives are entitled to enforce that charge. In connection with these contentions the following facts, which are admitted, mnst be considered: Edward Pickering Philpot at the time of his death left no child nor any descendant of a deceased child, to survive him, but his next of kin and heirs at law were three sisters, Mary Philpot Frazier, Clara Philpot Merryman, and Elizabeth Philpot Blanchard, .and two brothers, Brian Philpot, Sr., and John Philpot.

Of these Mary Ann Philpot Frazier died intestate, leaving neither husband nor issue, and of the others all died intestate but leaving issue. Brian Philpot, named in the codicil to the will of Edward P. Philpot, refused to make the payments payable under said codicil nor did Annie P. Lobdell, nor Emma P. Jjeeb, nor Albert D. Philpot, the children of said Brian Philpot, deceased, ever make said payments. Elizabeth Philpot Joliife (who is the same person as the Lizzie Philpot mentioned in said codicil to the will of Edward P. Philpot) died on December 25th, 1923, leaving a last will and testament, duly probated in the Surrogate’s Court of Bergen County, New Jersey, a copy of which will has been filed in the Orphans’ Court of Baltimore County and in this canse; that the residuary devisees named in said will, namely, The Hackensack Hospital and the Church of St. John the Divine, are both parties to this cause; that James De Turek is the duly qualified executor of said last will and testament. The testimony to which we have referred was given by Mrs. Chilcoat and Brian F. Philpot.

Mrs. Chilooat testified ns follows: “State whether or not you know of any payments having been made by Brian Philpot under the terms of said codicil ? 4A. To the best of my knowledge and belief Brian Philpot never made any such payments to Lizzie Philpot. Colonel Philpot communicated to Brian Philpot the contents of said codicil, and I recall that Brian Philpot definitely refused to- make the payments which the codicil provided ³⁸⁴ should begin in May, 1884. Colonel Philpot himself made one of the annual payments provided for by the codicil to his said will.

To the best of my knowledge no one else ever paid to Lizzie Philpot any of the sums of money mentioned in said codicil.” And Brian F. Philpot, who- was a soto of Brian Philpot, Sr., testified that his father, so far as he knew, never made any payments to Lizzie Philpot Joliffe under the will of Edward P. Philpot; that he (the witness) made several contributions to said Lizzie Philpot Joliffe. He also said that Mrs. Joiffes husband, Dr. Joliffe, was incapacitated as the result of an accident, and without means of support, and that he took care of them, contributed to their support, gave them what they needed, and that altogether he gave Mrs. Joliffe not less than $4500, but that no statement was ever made to her that these cototributions were made to comply with the terms of the codicil, and he added this: “(The Court) : Mr. Philpot, it is perfectly obvious you were very kind to this lady and it is most praiseworthy and commendable, but these things pertain so frequently among people of means and infiuenee. Have you anything to' tell the court by which it was clearly understood between you and her, any conversation or writing or anything of that kind, that this was to' be payments under the will. (The Witness) : Ho writing existed except in this letter I speak of, that mentioned it and which I have lost, and in conversation we had frequent cotoversafions in regard to' it, in which it was simply the general opinion between us and agreed to, that it was Hncle Ed’s, my Great Hncle Ed’s, desire that the property should remain in the Philpot name, and my brother and myself at that time were and are (the) only Philpots living.

If there had never been any will I should have done the same thing.” And he further said that all of these contributions were made after his father’s death. The controlling question presented by the contentions of the several parties claiming an interest in the estate of Edward P.' Philpot is whether thé devise to Brian Philpot, Sr., failed because he (a) renounced it, or (b) forfeited it by failing to make the payments called for by the codicil. ³⁸⁵ That a devisee may renounce a devise to him is well