Clark v. Clark

Schmucker, J., delivered the opinion of the Court. This appeal is from a decree of the Circuit Court for Baltimare County, in equity, passed in a special case stated, instituted to procure a construction of the will of the late Martha E. Clark. The first three clauses of the will make sundry pecuniary legacies and'specific bequests not material to the issue in this case. The questions calling for construction arise out of the provisions of the fourth clause which disposes of the residue ot the estate.

That clause consists of two paragraphs and is as follows: “Fovtth: I give and devise all the rest, residue and re ³⁵⁸ maindér of my property and estate of every kind to all my children absolutely, share and share alike, equally to be divided between them, the children of any deceased child to take and have the share to which their parent would be entitled if living. “It is my will and direction that my property hereby given to my said children shall not be sold for the purpose-of division of proceeds of sale among them until the end of ten years from the time of my death, unless all my said children agree that such sale and division shall be made between them .before, that time, and in case all of them do. thus agree in writing to make such sale or division of my property before said period of ten years, then I do authorize them to make said sale or partition of my property, so that each one may receive his or her share, I express the wish that my children shall continue to live together as they now do, and use the income of my property for their support until the expiration of said ten years from my death.” The testatrix was a widow and died seized of real estate worth about $100,000, and possessed of personal property, consisting of stocks and chattels, of the net value after the payment of her debts of about $34,000. She left surviving her one son and six daughters all of whom were unmarried adults. At the time of her death and for some years prior thereto she had maintained both a town and country house between which she divided her time and all seven of her children resided at home with her. By her will the testatrix named her son and one of her daughters as executors and they duly qualified as such and have substantially completed the administration of the personal estate.

The present proceeding was filed on the equity side of the Circuit Court for the construction of the will and all of the children were made parties to it in their own right and the two who were named as executors were also made parties in that capacity. The case stated propounds seven separate questions of construction to which it asks for answers. All of these ques ³⁵⁹ tions relate to the operation and effect of the second paragraph of the fourth clause of the will, upon the assumption that it is valid and operative to restrict or limit the absolute gift of the residue of the estate made to the testatrix’ children by the first paragraph of the same clause. If the second paragraph be valid and operative the questions- put by the case stated have a material importance and must be answerable in detail.

If on the other hand that paragraph be inoperative or void the questions have no foundation on which to rest and will require no further notice at our hands. It therefore becomes necessary to determine in limine the legal character and effect of the second paragraph. There is no obscurity in the language employed by the testatrix in the fourth clause of her will. By the first paragraph she gives in adequate and unmistakable terms the entire legal and beneficial estate in the residue of her property real and personal to her seven children absolutely with the provision that the issue of any deceased child should take the share to which its parent if living would have been entitled.

The gift of the entire fee-simple estate is made directly and immediately to the beneficiaries with no suggestion of the custody or control of the property for their use by any trustee or other intermediary. The second paragragh of the clause does not in fact attempt to cut down this absolute estate of the children to a life or other less estate or to affix to it any condition upon the breach of which it will terminate or pass to other persons, the attempt is simply to fetter the alienation and restrict the method of enjoyment by the children of the confessedly absolute estate given to them by, the first paragraph. The desire expressed by the testatrix is merely that they shall not otherwise than by unanimous consent sell the property for purposes of partition for ten years and that for such time they should continue to live together, and jointly use the income of the estate. This provision of the will if effective would' practically amount to a restraint for