Frick v. Frick

Boyd, J., delivered the opinion of the Court. The bill was filed in this case for the construction of the will of John Frick, who died in May, 1893. It was executed on the 4th day of February, 1890, and by it, after directing ²²¹ all his just debts and funeral expenses to be paid by his executor out of his estate, as soon after his decease as be found.convenient, the testator gave to his wife, Mary Frick, for life, his house and lot in Smallwood, Carroll County, and after her death to his daughter, Lillian Frick, for life, and after her death to the Evangelical Lutheran Church, of which he was a member. Then follow the provisions which we are asked to pass upon, viz: “ I also give to my said daughter, Lillian Frick, all my personal property, to have and hold forever. “And as to the balance of my estate, my wife, Mary Frick, and my daughter, Lillian, are not to have any share in it.

But is to be divided as follows: To my son, John Frick and Rufus Frick, Amelia Hyson and Caroline Block, in consideration of what they have already received, each the sum of ten dollars, the balance to be equally divided, share- and share alike, between and among my other children, Philip Frick, Frank Frick, Louisa Baker and Sophia Nelson.” Testimony was taken as to the surrounding circumstances of the testator, and on some other matters, the legal effect of which we will have occasion to refer to. The record discloses that when the will was executed the testator owned the house and lot in Smallwood, furniture and other goods and chattels afterwards appraised at $25.90, two small notes returned desperate, and a farm containing forty-seven acres, which he had on December 18th, 1889, sold to his son Frank by an unrecorded written agreement. It was therein agreed that Frank was not to pay for the property until after the death of his father, but he was to pay him annually five per cent, interest on $1,600.00 — the consideration mentioned in the agreement — and “ after the decease of the said John Frick, Sr., the said Frank A. Frick agrees to pay the heirs according to the last will and testament of said John Frick, Sr.” Subsequently the senior Frick executed a deed to his son, and took a note for $1,200.00, payable one year after date (November 16th, 1891), with five per cent, inter ²²² est from date, signed by Frank and his wife. Mrs. Frick testified that the note was taken for $1,200.00, because Frank had improved the property with his own means.

Lillian Frick is the only child by Mary Frick, who was the second wife of John Frick, Sr., and the others named in the will were his children by a former marriage. We have thus referred to the testimony which shows what property Mr. Frick owned when he made the will, and explains the relationship of the beneficiaries under it to the testator, as it is not only the right but the duty of Judges, in construing wills, to put themselves in the place of the testators, as far as possible, for the purpose of ascertaining their intentions. We must discover such intention from the face of the will, but without knowing how the testator was situated, the meaning and application of his words would oftentimes be incomprehensible. We cannot, however, resort to. extrinsic evidence to ascertain from the scrivener what the testator instructed or intended him to say as was attempted in this case, nor can we accept the declarations of the testator to establish his intention or to aid in the interpretation of the will as was settled in Negro Caesar v. Chew, 7 G. & J. 127 ; Zimmerman v. Hafer, 81 Md. 347 , and other cases that might be cited.

Having before us therefore the facts and circumstances respecting the persons and property to which the will relates, we must seek to discover the meaning of the testator in the language used by him. The bequest to Lillian of “ all my personal property” is sufficiently broad to include all personal property which the testator could dispose of at the time of his death, unless there be something elsewhere in the will to qualify or limit it. It has always been the law of this State that a- will takes effect as of the death of the testator, so far as it affects personal property — and the statute many years ago adopted a similar rule for real estate. It was accordingly held in Dalrymple v. Gamble, 68 Md. 523 , that the term “all my personal property” as used in that'will passed the testator’s distributive share in ²²³ the estate of his brother, who died intestate twenty-three days before the death of the testator, which amounted to thirty thousand doliars, although when he made his will he only had about one hundred dollars worth of personal property in California where he lived.

That decision rested on the fact that there was nothing in the will to restrict the term used — “ all my personal property ” — and as the will spoke and took effect from the death of the testator, it included all personal property he owned at that time. In Stannard v. Barnum, 51 Md. 451 , it was said: “It would be a dangerous doctrine to establish, and one without precedent, that where the language of the will is plain, and the residuary clause, in terms, disposes of the whole estate, and there are no qualifying words in any part of the will, you may introduce extrinsic evidence to show that the testator did not know that certain property which he owned actually belonged to him, for the purpose of restricting the natural meaning and operation of the will; such evidence would clearly be inadmissible.” In State use of Dittman v. Robinson et al., 57. Md. 486, this Court in construing the will then under consideration held that where a testator gave to his wife, amongst other property, the bills receivable of which he should die possessed, absolutely, and two leas-hold lots, for life, and between the dates of the execution of the will and his death the testator sold the lots and died without collecting all of the purchase money, the uncollected purchase money passed to the wife absolutely under the gift “ bills receivable of which I should die possessed.” But the Court said in passing on the question, “ If there was anything in the will to indicate an intention to restrict the terms within a narrower compass, it might no doubt be done to carry out a manifest purpose of the testator.” We have thus selected a few of the many cases in this State to show that, in deciding this question, we.have not overlooked the general principle that such a bequest as that made to appellee is broad enough to include all personal property of which the testator died possessed, if it stood ²²⁴ alone, but that we must also be guided by the further well established doctrine that if there be anything, in any part of the will which restricts or qualifies the general term, the latter must be so restricted and qualified, if it can be done without violating some other principle of law or the manifest intention of the testator. Let us then see whether this gift to Lillian of all the testator’s personal property in the one clause is restricted by any other part of the will.

It is perfectly apparent that if the appellee’s contention be correct, the eight children of John Frick by his first wife will take nothing. It is equally manifest from the face of his will, that he intended four Of them to have ten dollars each and the other four to have something. It is moreover perfectly certain that when he made that will he did not intend his wife and daughter Lillian to have all of his estate, for after giving them for life the house and lot in Smallwood and the personal property to Lillian, he distinctly said: “And as to the balance of my estate, my wife, Mary Frick, and my daughter, Lillian, are not to have any share in it.” If then Lillian, by our construction of the will, gets all or any part of what her father called “the balance of my estate,” she will receive what he expressly intended she should not have, and his other eight children will be deprived of what he manifestly designed they should have, so far as disclosed by the face of the will. The will is peculiar because it not only undertakes to give something to one set of his children, thus negativing the idea that the other child and her mother are to have that “ something” whatever it may be, but he affirmatively- said that his wife and daughter Lillian shall not have it.

We are convinced from a careful reading and study of the will, that the testator did intend, when he made it, not only to give these eight children some part of his estate, but to exclude Lillian from such part, and that such intention (to use the language of Judge Miller in Dalrymple v. Gamble, supra) “remained in the will, speaking from day to day .until the testator died.” We are then brought face to ²²⁵ face with