Darden v. Bright

Parke, J., delivered the opinion of the Court. The will of James G. Darden, who died on November 18th, 1933, was duly executed on Septémber 14th, 1931, and was admitted to probate on November 24th, 1933. He had noi issue, but he was survived by his wife. Three of his brothers and a sister had died before the date of the will without leaving any descendants.

Another sister had died a number of years before the will was drawn, ⁵⁶⁶ and had left an only child who was alive at the date of the will. A brother of the testator had died on November 7th, 1923, and was survived by six children, all of whom were living at the time of the execution of the will and are now alive. The remaining brother was alive when the testator made his will, and at his death. This brother has nine children, all of whom were alive when the will was executed and when the testator died.

With this family relation in mind, the testator made a will which disposed of a large estate that, at his death, had become much less in value. The will provided for his burial and the payment of all his debts, and then devised and bequeathed to his wife only such portion of his estate as she would have received if he had died intestate. By the next paragraph he made bequests in language which has given rise to the controversy at bar. The exact words are these: “Fourth: I give and bequeath, free of tax, the sum of Five thousand dollars to each one of the children of my brother, provided they are living at the time of my decease. :If any of such children are then deceased the said legacy shall lapse and become part of my residuary estate.” By the fifth paragraph, the testator devised and bequeathed all the residue of his real and personal estate of every kind absolutely and in fee to four persons as tenants in common.

They were two daughters of an old friend, a former close and intimate business associate, and a friend who was his legal adviser. The legal adviser was made the sole executor. The other provisions relate to the details of the administration of the estate and the powers of the executor, and do not affect the questions at bar. Louis C. Darden is the name of the only brother who was alive at the execution of the will, and the chancellor construed the gifts to be to such of the nine children of this brother as might be surviving at the time of the testator’s death.

The construction, therefore, excluded the six children of the decedent’s brother, Samuel Dar ⁵⁶⁷ den, who was not alive at the time the will was written. These excluded nephews and nieces bring the present appeal. The appellants urge that the language used is susceptible of more than one interpretation, but, when construed in the light of circumstances, shows that the children intended are those of the dead brother. If this be held untenable, then, in further illustration of the danger of letting plain words yield to an intention drawn from indefinite circumstances, an alternative benevolent construction is advanced that the testator’s legatees embraced not only the surviving children of his dead brother, but also those of his living brother.

The circumstances, which it is contended, support these alternative constructions, are found in the extrinsic evidence offered of facts and declarations to show an alleged testamentary purpose and preponderant or equal affectipn and interest of the testator in the dead brother and his children, so that the inference is to be made that he intended :his gifts to be to the exclusion of the children of his living brother, or, at least, to include both classes of children as like beneficiaries. These efforts provoked countervailing extrinsic testimony to show that the construction of the chancellor is in harmony with the testator’s purpose. Thus the court is, in effect, solicited to construe the written, final expression of the decedent’s testamentary purpose in conformity with what may, on the conflicting testimony, be the court’s conclusion of what the testator intended, notwithstanding the plain meaning of .the words of the will and their clear and specific application to the subject and objects of the testator’s bounty. The aim of the construction of a testamentary document is to ascertain and declare the meaning of the testator in reference to the subjects and objects of his testamentary disposition.

The canons which control the court are well established. There is always the necessity of translating the words of the will into things and facts. The translation may be impossible because of some in ⁵⁶⁸ herent or patent defect of expression; or it may be so simple and clear of rendition as to make the application of the document to persons and objects immediately and directly apparent. Hawman v. Thomas, 44 Md. 30 ; Cassilly v. Devenny, 168 Md. 443, 450 , 177 A. 919 .

But whenever the language admits of construction, the sense in which the testator used the terms of the document is to be sought in association with all the circumstances which tend to make clear the sense in which the words were understood by the testator. Thayer on Evidence, p. 425. Ihe words of a will are to be taken in their primary and usual meaning, unless customarily used by the testator in a sense peculiar to himself. There is nothing on the record to indicate that the words of the will are to be taken in other than their ordinary and grammatical sense.

The document was drawn according to the instructions of the testator by a competent attorney, who employed clear, consistent and appropriate language, and it was read and approved by an intelligent business man as the satisfactory expression of his testamentary purpose. There is no patent ambiguity, and the general rule is that no expression of intention with reference to the subject of the document may be considered. The reason is that an extrinsic statement may not be received to modify or nullify the words of a document. Moreover, an oral utterance would not be a compliance with the statutory requirement that a will be in writing.

Miller on Construction of Wills, sec. 40. However, for the purpose of determining the objects of a testator’s bounty, or the subject of disposition, or the quantity of interest intended to be given by the will, the court may inquire into every material fact relating to the person who claims to be interested under the will, and to the property which is claimed as the subject of the disposition, and to the circumstances of the testator and of his family and affairs, for the purpose of enabling the court to identify the persons or things intended by the testator, or to determine the quantity of interest he has given by his will. ⁵⁶⁹ Wigram’s Extrinsic Evidence in Aid of the Interpretation of Wills, proposition V. West v. Sellmayer, 150 Md. 478, 481 , 133 A. 333 ; Hammond v. Hammond, 55 Md. 575, 581 ; Shipley v. Mercantile Trust & Deposit Co., 102 Md. 649, 659 , 62 A. 814 ; Marshall v. Haney, 4 Md. 498, 507 ; McCann v. Preston, 79 Md. 223, 229 , 28 A. 1102 ; Courtenay v. Courtenay, 138 Md. 204, 210 , 113 A. 717 ; Stahl v. Emery, 147 Md. 123, 128 , 127 A. 760 ; Safe Deposit & Trust Co. v. Hutton, 159 Md. 50, 59 , 149 A. 689 ; Suman v. Harvey, 114 Md. 241, 251, 252 , 79 A. 197 . Furthermore, if the language of the will is plain and single, yet is found to apply equally to two or more subjects or objects, extrinsic evidence and declarations of intention, also, are permitted to assist in the interpretation of this latent ambiguity or equivocation, on the theory that, since the terms of the will describe two persons or objects with equal accuracy when only one is meant, “there,” in the language of Wigmore, “can be no competition with the words of the document by declarations which merely expand and make more specific those words.” Wigmore on Evidence, 2nd Ed., sec. 2472. The declarations are admissible for the purpose of establishing what the testator understood was signified by the words employed in the will.

Farmer v. Quinn’s Trust Co., 133 Md. 558, 564 , 105 A. 763 ; Clarke v. Sandrock, 113 Md. 422 , 77 A. 644 ; Schapiro v. Howard, 113 Md. 360 , 78 A. 58 ; Board of Home Missions v. Lynch, 168 Md. 117 , 176 A. 619 ; Frick v. Frick, 82 Md. 218, 225 , 33 A. 462 ; Walston’s Lessee v. White, 5 Md. 297, 305 ; Stokeley v. Gordon, 8 Md. 496, 507 ; Hawman v. Thomas, 44 Md. 30, 43 ; Cassilly v. Devenny, 168 Md. 443, 448, 449 , 177 A. 919 . Miller on Construction of Wills, secs. 41-44. Should the terms of the document, when applied to facts and things, be found certain, so that the sense in which the words were used is clear, the office of construction is at an end. The language of the will at bar is plain and precise.

The subjects of the gifts are the several sums of $5,000, and its objects are, primarily, every one of the children of the testator’s brother, if ⁵⁷⁰ living at the death of the testator, and, secondarily, the four named residuary legatees, in the event that a legacy should lapse by an original legatee not surviving the death of the testator. These clear terms have reference to the qualifications, at two successive stages in time, of the legatees. The two stages are, first, the time of the execution of the will, and, secondly, the time of the testator’s death. At the date of the making of the will, the testator first defined the nephews and nieces with a potential right of legacy to be one of the then living or future born children of testator’s brother.

Miller on Equity Proc., sec. 9, pp. 41, 42, sec. 39, sec. 86; Benson v. Wright, 4 Md. Ch. 278, 279 ; Shotts v. Poe, 47 Md. 513, 519 . See Cowman v. Classen, 156 Md. 428 , 144 A. 367 . After prescribing the conditions for admission to the number of potential legatees, the testator made survivor-ship at the time of his death a condition precedent for the potential right of any legatee to become a vested right. None but a living legatee could take.

If death should intervene, the potential right of the legatee so dying would lapse, and the particular legacy would fall into and pass under the residuary clause. The necessity of a legatee being alive before and at the death of the testator demonstrates that the testator’s mind and langauge were addressed to persons who were and would be alive within the period from the date of the will to the death of the testator, and this circumstance gives weight to the conclusion that “brother,” in the clause “to each one of the children of my brother,” is used in its ordinary and natural meaning of a living brother. The text of the will is plain in its revelation of the testamentary design in other respects. It makes certain that the testator did not intend to die intestate, and that he had selected the particular objects of his favor.

Aside from the legacies given by the paragraph of the will now under review, the devises and bequests are to his wife, who survived him, and to his friends and the daughters of a friend. In addition to these beneficiaries, his next of kin at the time of the writing of the will were a brother ⁵⁷¹ and a sister, the son of a sister, who had died before the making of the will, and the six living children of a brother who had died seven years and ten months before the date of the will; and the nine living children of the brother who was then and is now alive. Other than his wife, who was provided for by the will, these relatives were the natural objects of his bounty.. The brother and sister, and the child of a dead sister, are excluded from participation in the estate by the terms of the document.

The remaining next of kin were the nephews and nieces who were the children of a then living and long since dead brother. Again, by express terms he unquestionably eliminated one group of these remaining nephews and nieces, and equally irrefutably his will establishes that his meaning was to give a legacy to every one of one group to the exclusion of all who constituted the other group. Unless the sense in which the words used permit, under all the material and relevant circumstances, certain application to ascertained persons, the bequests must fail for uncertainty. The circumstances are not those where the testator had but one brother, who had children who survived the death of the testator; nor those where there existed a plurality of brothers at the time of the execution of the will, and two or more of these had children surviving at the death of the testator.

Neither these nor other possible contingencies under varying circumstances are present problems, and, therefore, are excluded from consideration. The immediate inquiry is whether or not the language of the will may be, under all the circumstances, construed to apply to the surviving nephews and nieces of a brother, who was living at the date of the execution of the instrument by the testator, and at the death of the testator. When the testator made his will, he wrote as of the present, with reference to the future effectiveness of the document. At the date of the execution of the will, he had two sets of nephews and nieces.

The complete identification of either set was to name the father, or to ⁵⁷² describe Mm in terms which would indicate whether the father was the living or dead brother. The testator drew the line between the present and the past. In the ordinary and grammatical sense' a simple affirmation of a fact, relationship, or circumstance is of the present. So, when he made his gift “to each of the children of my brother,” the form adopted carried the implication that the brother was then in existence.

Louis C. Darden, his brother, was the only brother in being at that time, and, consequently, the language has definite and plain application to his children. On the other hand, Samuel Darden, a brother, was long since dead at the writing of the document. As by his death a brother ceased to be of the present, his relationship to the testator, as contrasted with that of a brother in being, is spoken of in terms of the past. So, to give to the children of the dead brother, in the form of bequest adopted, it was obviously necessary to designate their parent by name or by some descriptive term.

In not so doing the testator made clear his meaning that the several children of his then living brother were the legatees. The point