Gordon v. Smith

McSherry, C. J., delivered the opinion of the Court. The will of Thomas A. Smith, late of Baltimore City, contains, amongst others, the following provisions: “To my son Robert A. Smith if living one thousand dollars ($i,ooo), or if dead to go to his wife or widow Elizabeth Smith. “Eight hundred dollars to Elizabeth Smith, one hundred dollars to her son Foster G. Smith, one hundred dollars to her daughter Maud.” The question before us is, did the testator intend by these provisions to dispose of two thousand dollars or only the sum of one thousand dollars which, in the event of the death of his son Robert, was to be divided between Elizabeth and her two ³¹⁶ children in the proportion of eight hundred to the former and one hundred to each of the latter? Treating the above provisions as one clause divided into two paragraphs, as it is in the original will, is the second paragraph to be regarded as a mere direction for the payment on the contingency of'Robert’s death of the one thousand dollars mentioned m the first paragraph; or does the second paragraph contain a distinct and unconditional gift of an additional one thousand dollars? The answer to the inquiries must be found in the will itself taken as a whole when viewed in the light of the circumstances which surrounded and were known by the testator at the time he executed it.

The undisputed facts show that the testator had at the time he made his will and at the time of his death, which occurred a little more than three years afterwards, one daughter and three sons who were all adults. He made no attempt to divide his estate equally between his children. To one son he gave five hundred dollars; to his daughter he gave six thousand dollars and made her residuary legatee; then came the clause herein above quoted, and to his son Elmer he gave four thousand dollars to be invested, and with a limitation over to the children of his daughter if Elmer should die without children. The son Robert abandoned his wife Elizabeth more than nineteen years ago and it was not known whether he was dead or alive.

The two children of his son Robert were infants when they and their mother were deserted, and she reared them and supported them herself, receiving occasional aid from the testator during their minority. With these circumstances the testator was familiar, and he doubtless knew that these two grandchildren and their mother were the most dependent and the poorest members of his family, for such is the undisputed fact. It is conceded that the assets of the estate are fully sufficient to pay all the legacies including the one thousand dollars claimed by Elizabeth Smith and her two children in addition to the sum given to the son Robert. With these facts in view can it be said that it was the intention of the testator to give by the clause we have quoted, to his wayward son Robert, if living, the sum of one thousand ³¹⁷ dollars to the entire exclusion of that son’s neglected family?

The natural meaning of the language he has used does not indicate such an intention; and if every word in the clause is to be given effect, and none of them is to be rejected and words not there now are not to be added, such an intention cannot be implied. The clause is distinctly divided into two paragraphs, each one of which is complete in itself. One gives to Elizabeth Smith a thousand dollars in the contingency that the testator’s son Robert is dead. The other gives her eight hundred dollars absolutely and without any condition whatever.

Not only is one a contingent and the other an absolute legacy, but the amounts of the two are different. To make the su.ms named in the second paragraph identical with, and a distribution of, the sum stated in the first, there must be some words eliminated from, or other words added to, the first paragraph, whereby the absolute gift in the second paragraph will be converted into, or cut down to, a contingent legacy. To sustain the contention that the second paragraph does not give an absolute legacy, one or the other of two inadmissible alternatives must be adopted, viz., either, first,.the words “to his wife or widow Elizabeth Smith” must be