Childs v. Hutson

MURPHY, Chief Judge. This will construction case involves a devise of real property to a life tenant and whether, considering the provisions of the will in their entirety, a broad power given to the life tenant to dispose of the entire estate during her lifetime permitted her to make an outright gift of the property to her daughter. I Clementine Del Gavio executed a will on December 16, 1964. At that time, she had three living children: Frank V. Del Gavio, Josephine C. Hutson, and Emilia A. Wheeler.

Emilia and her daughter, Victoria, lived with Clementine at the 22-acre family home on Paper Mill Road in Baltimore County. Clementine died on June 18, 1965; her three children survived her. In Item III of her will, Clementine devised the Paper Mill property to Emilia for life, with “full power to sell, mortgage, lease, rent or in any other manner whatsoever to dispose of the entire estate, or any portion thereof (except by Will).” Item III of the will further provided that in the event Emilia sold the Paper Mill property, the net proceeds would be divided, per stirpes (1) $1,000 to son, Frank, (2) one-third to daughter, Josephine, and (3) two-thirds to ²⁴⁵ daughter, Emilia. The will also provided that if Emilia predeceased the testatrix or died “before exercising the right to sell,” then the property was to be sold by the executor and the net proceeds divided, per stirpes (1) $1,000 to son, Frank, (2) one-third to daughter, Josephine, and (3) two-thirds to granddaughter, Victoria.

All the rest and residue of Clementine’s estate was given to Emilia. On March 14, 1983, Emilia deeded the Paper Mill property in fee simple to her daughter, Victoria, without consideration. Several months later Emilia died. Josephine and two sons of Frank Del Gavio (who died May 13, 1979) brought an action to invalidate Emilia’s deed to the Paper Mill property.

The trial court (Fader, J.) invalidated the deed, reasoning that the provisions of Clementine’s will, considered in their entirety, did not empower Emilia to make a gift of the property. The Court of Special Appeals affirmed in an unreported opinion and we granted certiorari to consider the significant issue presented by the case. II In affirming the trial court’s judgment, the intermediate appellate court first recognized that the cardinal rule in will construction cases is to ascertain the intention of the testatrix as determined from the four corners of the will. It found that the testatrix’s primary intent in devising the Paper Mill property to Emilia was to provide for her support and comfort during her life; that this intention was manifested by the fact that Clementine left Emilia her entire estate outright, except for the Paper Mill property; and that if Emilia wanted to live elsewhere, or needed money for her support, she was empowered to sell the property and retain two-thirds of the sale proceeds for herself.

The court determined that the power of disposition in Clementine’s will had to be construed “in juxtaposition with this clearly evidenced intent of the testatrix to support Emilia” and that the only construction consistent with that intent was “that any such disposition be one that generates ²⁴⁶ proceeds to support Emilia so long as she was alive.” The court concluded that while “Emilia’s lifetime needs were paramount ... [Clementine] did not forget her other two children” and, therefore, precluded Emilia from making a testamentary disposition of the Paper Mill property. Consequently, the court said that to permit Emilia to make a fee simple gift of the property “would clearly defeat the patent intent of the testatrix to provide [Emilia] with a home or an alternative in the form of rental subsidy.” Moreover, the court observed that to permit a gift “would defeat the testatrix’s secondary intention that her other issue share in the devise if Emilia no longer had need for the home or the rental property.” In support of its conclusion, the intermediate appellate court relied upon several Maryland cases which narrowly construed broad powers of disposition. 1 Ill The appellants (Victoria and Clementine’s executor) contend that the Court of Special Appeals erred in holding that broad powers of disposition, as were given to Emilia, should be narrowly rather than liberally construed. They claim that the plain meaning of the words contained in