Dorsey v. Dorsey

Le Grand, C. J., delivered the opinion of this court. This is an appeal from an order of the oiphans court of Baltimore city, passed the 6th day of October 1855, directing the appellant, as executor of the last will and testament of William H. Dorsey, deceased, to pay over to the appellee a certain sum of money which he has in hand, and also “hereafter from time to time pay in like manner over to said Arabella Dorsey, as her absolute property, the balances which he may hereafter have in hand belonging to the estate of said William H. Dorsey, after deducting proper charges, expenses, and any debts which may be due by said estate, if any there should be.” The questions involved in the case arise under the following letter of William H. Dorsey, which was admitted to probate as a testamentary paper: “ Balto.. April 5th, 1854. R. B. Dorsey, Esq’r, Dear Sir: — In case of my death, I desire you to act as my executor, and wind up my affairs according to the following directions: All of my property, both real and personal, I. bequeath to my wife, with the following exceptions, viz: — To my mother and each of my sisters I leave §1250 cash, to be invested for their benefit in some safe and productive stock; six hundred dollars to be applied to the payment of a note for §600 to Johnston & Bros., due August 12, and §110 to pay a note to G. D. Clarke, the jeweller, for a watch: these are all the debts I owe, except small accounts about town.

My effects consist of an interest in the houses of Duval, Keighler and Dorsey, and Duval, Rogers & Co., of eight and-a-half per cent, of the profits of each house; the proceeds of two policies of insurance in the New York Mutual, for §7500 and §2500; the furniture of the room in Courtiand street, and some 450 acres of land in Olay, Clinton and De Kalb, counties, Missouri. The furniture my wife may dispose of as she sees fit, and also all the rest of the property. By the articles of co-partner ³⁸ ship, upon the death of a partner, those who remain are bound to wind up the concern as speedily as possible. In the case of the death of both myself and wife, all the property and effects before mentioned, as belonging to my wife, shall revert to my mother, after paying Mr. Arthur $4000, being the amount, principal and interest, I have received from him.

Yours, truly, W. H. Dorsey.” On the part of the appellant it is insisted, that the property given by this paper only conferred on the appellee a life estate, whilst on the part of tire appellee, (and as was adjudged by the orphans court by the order appealed from,) it is held that the bequest was absolute without remainder over to any one. In the view of the case which we have, it is unnecessary we should discuss the two other questions presented in the argument, namely, the right of the appellee to introduce parol evidence to show the circumstances attending and surrounding the testator; and the obligation devolving on the orphans court to invest in some safe and productive fund the interest bequeathed, provided the appellee only takes a life estate. The case principally relied upon by the counsel for the appellant to support his theory of the case, is that of Smith vs. Bell, 6 Peters,,68. It is a case, in some particulars, analagous to the one now under consideration.

The clause in the will which gave rise to the controversy, and which was discussed and decided by the court, was in these words: “1 give to my wife, Elizabeth Goodwin, all my personal estate whatsoever and wheresoever, and of what nature, kind and quality soever, after payment of my debts, legacies and funeral expenses, which personal estate I give and bequeath unto my said wife, Elizabeth Goodwin, to and for her own use and disposal absolutely; the remainder after her decease to be for the use of the said Jesse Goodwin.” There, as here, the question was, what kind of estate did the wife of the testator take ? The first part of the clause gave her absolutely the property; but the difficulty of interpretation arose from the use of the words, “the remainder after her decease to be for the use of the said Jesse Goodwin.” To ³⁹ reconcile these inconsistent members of a sentence, and, at the same time, to give efficacy to the intention of the testator, was the office of the court. This was accomplished by giving some meaning to every member of it. If Jesse Goodwin was to enjoy “the remainder after her decease,” then the first part of the clause must be so construed as to limit the estate of the wife to that of her life.

This Chief Justice Marshall considered to be the true meaning of the language employed by the testator, deducing the