Gosnell v. Leibman

⁵⁴³ Adkins, J., delivered the opinion of the Court. This appeal is from a decree for specific performance of an agreement by appellant to purchase from appellees a lot of ground in Baltimore City, title to which was derived by appellee Anna Lacey Leibman under the will of her former husband, Anderson B. Lacey. The contention of appellant is that Mrs. Leibman- did not take under the will a fee simple estate. The will, so far as it is pertinent to the present inquiry, is as follows: “I give, devise and bequeath to my wife, Anna W. Lacey my entire estate, real and personal, said estate consisting, at this time, mainly of my Eorestglen Park property, in Baltimore, Maryland, comprising 108 (one hundred and eight) acres * * The testator in the same clause devises and bequeathes to his wife certain other property, which he regarded as valuable, in Baltimore and Washington, and his interest in the business or patent practice of the firm of Lacey & Lacey of Washington, D. C., which interest he estimated to be worth $100,000; and then proceeds as follows: “Furthermore, as this will is only made to serve the emergency of sudden or early demise * * * it is sufficient to say herein that it is my wish that when my dear wife arranges for the disposition of the estate hereby left to her she shall be exceedingly careful to seek the counsel and guidance of a capable and trusted person or capable and trusted or trustworthy persons, to the end that her will may be properly drawn and that she shall see to it that after all her own wants and needs shall have been carefully and very amply provided for, the residue shall descend accordingly as she may see fit to apportion it among her sisters, Lucy, Ellen and Cora, and among my own several brothers’ children (except such thereof as she may have good reason to deem unworthy), and my sister Sallie’s children (except such thereof as she may have reason to deem unworthy) ; and furthermore, as I have aimed to be liked and charitable with those with whom ⁵⁴⁴ I have come in contact as I have gone along in life, I desire that not more than $1,000.00 in all shall go to the church or charity or to any person or persons other than as hereinafter specified, and except that within eighteen months following probate of this will the sum of $5,000.00 shall be paid to Miss Evelyn B. Mills, now residing at Wo. 226 E Street, W. W.; Washington, D. C., in recognition of her many years’ faithful and efficient service in my office.

And it is my desire that in an apportionment of my estate among my relations and my wife as hereinabove mentioned, she (my wife) shall deal most liberally with my brother John’s children.” The wife is made executrix with the request that she be not required to give bond. The contention of appellant is that, while in the first instance the testator gave his wife an absolute estate, by the later clause he intended to cut down the absolute estate, and that she took a life or less interest with the power of appointment by will. Wow there is no doubt that an absolute devise or bequest may be cut down, if it “appear, by devise over or by words of limitation or otherwise, that the testator intended to devise a less estate and interest.” Code, art. 93, sec. 336. Schlotzhauer v. Kummer, 149 Md. 583 , 132 A. 53 , illustrates this principle.

There the estate first given absolutely was clearly restricted to a life interest by subsequent provisions of the will. There is no such clear restriction in the present ease, and tile result of so holding would be that, upon the life tenant’s failure to make a will, there would be an intestacy as to the remainder; and every