Chism v. Reese

Delaplaine, J., delivered the opinion of the Court. This appeal is from a decree of the Circuit Court for Baltimore County construing the will of John R. Reese, owner of a farm at Owings Mills, who died May 28, 1899. His wife died in 1893. The will, executed October 19, 1898, devises to the testator’s unmarried son, John B. Reese, a life estate in his farm on condition that he will support an unmarried daughter, Mary L. Reese, or provide for her in an institution during her lifetime.

If he is unwilling or unable to provide for himself and his sister from the farm, the testator’s married sons, Charles A. and Francis D. Reese, who are named as executors, are authorized to farm or rent the farm, or sell all or such portion of the land as shall be necessary for their support. The will also provides (1) that in case of Mary’s death prior to the death of John, the entire income from the land shall be for the support or use of John during his lifetime; but (2) in case of John’s death without heirs before the death of Mary, then whatever amount of the income from the land, or trust from sale of the land, shall not be necessary for the support of Mary shall “-revert” to Charles A. and Francis D. Reese, to be di ³¹⁶ vided equally between them, or equally between their heirs, if they should not be living, per capita. The will further provides (3) that in case John should leave heirs or a widow, they shall receive the income from the land during the lifetime of Mary; but (4) if there should be no children of John, and John should die leaving a widow, then the widow shall have what remains from the income after sufficient is taken out for the support of Mary; and (5) if John’s widow outlives Mary, then the widow shall have one-half of the income during her unmarried life. The will then contains the following provision, which is now in controversy: (6) “In case of the death of Mary L. Reese, John B. Reese and the wife of John B. Reese, then the whole of said property to go to the children of John B. Reese and wife, if any, and (7) if no children, then the said property to revert to my grandchildren, the issue of both of my sons, Charles A. Reese and Francis D. Reese, as tenants in common, the issue of said sons to take same per capita.” The cardinal rule for testamentary construction is that the intention of the testator must be gathered from the language of the entire will, particularly from the clause in dispute, read in the light of the surrounding circumstances at the time the will was made.

The intention of the testator will be carried out whenever it can be done without violence to the language employed, unless it conflicts with some established rule of law. West v. Sellmayer, 150 Md. 478 , 133 A. 333 ; Hutton v. Safe Deposit & Trust Co., 150 Md. 539, 554 , 133 A. 308 ; Gent v. Kelbaugh, 179 Md. 343 , 18 A. 2d 595 ; Robinson v. Mercantile Trust Co., 180 Md. 336 , 24 A. 2d 299 , 138 A. L. R. 1427; Jones v. Holloway, 183 Md. 40 , 36 A. 2d 551 , 152 A. L. R. 933. In this case only the quoted provision is directly in controversy. But from the will as a whole there arise at least five queries which show its obscurity.

First: Do not the words “without heirs” in the provision marked (2) mean “without heirs or a widow”? Otherwise, (2) and (4) would appear to be contradictory. Second: ³¹⁷ Where does the other one-half of the income go under (5) ? Does it go to Charles and Francis by implication under (2), or to their issue by implication under (7), or is there a partial intestacy?

Third: Do not the words “heirs or a widow” in (3) mean “heirs or both heirs and a widow”? Otherwise, (3) and (4) would appear contradictory. Fourth: Does not the word “income” in (3) mean what remains after the support of Mary? Otherwise, Mary would be left without support.

Fifth: Would equal division under (2) between Charles or Francis and the heirs of the one deceased be entirely per capita, or one-half to the living son? These queries show that, in seeking the testator’s intention from the terms of the will, very little help can be gotten from other cases where more carefully worded alternative contingent remainders have slight resemblance, if any, to the will now before us. Acting under a decree of the Court below, the executors sold a portion of the farm and invested proceeds of sale in securities. Francis D. Reese, one of the executors, died in 1934, and was survived by seven children: F. Sydney Reese, Elizabeth Reese Wilkens, Lewis R. P. Reese, John C. Reese, Dorothy Reese Ebaugh, Clement M. Reese and Donald Reese.

All of them except Donald were born during the lifetime of the testator. Charles A. Reese, the other executor, died in 1939, and was survived by one child, Rev. Clarence Herbert Reese. Mary L. Reese, life tenant, who never married, died in 1919. John B. Reese, the other life tenant, married after his father’s death, but his wife died in 1904, and he died March 8, 1946, without children.

After the death of the trustees, the Court appointed F. Sidney Reese and Rev. Clarence Herbert Reese as substituted trustees. Rev. Mr. Reese, who became a chaplain in the United States Army, died in Nevada August 20, 1945. F. Sydney Reese, surviving trustee, reported March 26, 1947, that he held approximately $11,000 in cash and securities realized from the sale of a portion of the farm, and that the remaining portion, containing 196.6 acres, was under ³¹⁸ contract of sale for $45,000. He also reported that Clement M. Reese died in 1931, but the other six children of Francis D. Reese voluntarily agreed that after the distribution of the estate one-seventh of the amount distributed would be paid to Patricia Reese, only child of Clement M. Reese.

Acting on that petition the Court passed an order March 26, 1947, declaring (1) that the trust created by the will of John R. Reese terminated upon the death of John B. Reese March 8, 1946; (2) that the title to the farm vested in six equal shares in F. Sydney Reese, Elizabeth Reese Wilkens, Lewis R. P. Reese, John C. Reese, Dorothy Reese Ebaugh and Donald Reese, surviving children of Francis D. Reese, they being all of the testator’s grandchildren living March 8, 1946; and (3) that the six grandchildren are also entitled to the personal estate held by the trustee. Ellen Louisa Reese, appellant, widow of Rev. Clarence Herbert Reese, filed a petition May 8, 1947, after the Court had given her leave to intervene, alleging that her husband was a grandson of the testator and was born prior to his death; that he had a vested interest in the trust estate; that he left a will giving her all of his estate; and hence she was entitled to a share in the trust estate. She also claimed that her husband at the time of his death was entitled to trustee’s commissions. On July 14, 1947, the Court confirmed the order of March 26, and dismissed her petition without prejudice to her •claim to trustee’s commissions.

From that decree she appealed to this Court. Appellant makes the following alternative contentions: (1) that the ultimate interests of either the children of John or the children of Charles and Francis might not have vested until the death of John’s widow, who might have been born after the testator’s death, and therefore the ultimate dispositions violated the rule against perpetuities and were void; and that a partial intestacy resulted, (Perkins v. Iglehart, 183 Md. 520 , 39 A. 2d 672 ) with the result that one-half of the reversion descended to Charles, and from him to his son, and passed under ³¹⁹ the son’s will to appellant; and (2) that, if the first contention should be held unsound for the reason that the ultimate limitations vested in interest at John’s death in any event, then the limitation “to my grandchildren, the issue of both of my sons, Charles A. and Francis D. Reese,” although contingent as to the event, was not contingent as to the persons, but on the contrary embraced the grandchildren living at the time of the testator’s death, and therefore a share passed to appellant under her husband’s will. Hammond v. Piper, 185 Md. 814 , 44 A. 2d 756 . The testator has the right to fix the period of vesting, and if he does so with reasonable certainty, his intention will be carried out.

He can postpone the period of vesting and make it depend upon a contingency, and, if he does so, the estate will not vest until the happening of such contingency. Cherbonnier v. Goodwin, 79 Md. 55, 58 , 28 A. 894 . The most important rule of construction on the question when an estate was intended to vest is that the law favors the earliest vesting of estates. Where there is more than one period mentioned in a will, the court will generally adopt the earlier one unless this construction is contrary to the testator’s intention as disclosed by the terms of the will.

Lee v. Waltjen, 141 Md. 450 , 119 A. 246 ; Curtis v. Maryland Baptist Union Ass’n, 176 Md. 430, 438 , 5 A. 2d 836 , 121 A. L. R. 1516; Miller, Construction of Wills, sec. 227. It is an accepted rule that where there are two possible constructions, either of which can be adopted without straining the language of the will, the court will adopt that construction which