Hammond v. Hammond

Bowie, J., prepared the following opinion in his life- ■ time, and the same being concurred in after his decease by the Judges who participated in the hearing, it was filed as the opinion of the Court. The appellants filed their hill of complaint in the Circuit Court of Baltimore City against the appellees, for the purpose of ascertaining and establishing the true, construction of the will of William B. Hammond, late of said city, deceased. They allege that the testator died on or about the 23rd day of May, 1877, leaving a last will, which has been duly admitted to probate in the Orphans’ Court of Baltimore City, and Charles Lewis Hammond, (one of the appellees,) executor named therein, has duly qualified as executor, and obtained letters testamentary thereon. ⁵⁷⁷ It is further charged, that hy one of the clauses of the will, the testator bequeathed to his brother, the said Charles Lewis Hammond, ££the sum of twenty-five hundred dollars, secured by a mortgage from William Huddleson of Montgomery County, for that he the said C. Lewis Hammond, shall look after and take care of our beloved brother Rezin, while he shall live, and bury him at his death.” They allege, “that the brother Rezin mentioned in said clause, died before the testator, and they are advised, and claim that hy the true construction of the above recited clause of said will, which was intended to make provision for said Rezin, the sum of twenty-five hundred dollars is not bequeathed in trust for said Rezin, hut that it is a certain sum left to the said Charles Lewis Hammond, as the consideration of the assumption hy him of the care of said Rezin while living, and burying him when dead; and that the said C. Lewis Hammond, would not he entitled to said legacy, unless he should, after the death of the testator assume said duties, and in case he should accept said legacy, his obligation to perform said offices in favor of said Rezin, would be entirely independent of the amount of said bequest, and would he co-extensive with the life of said Rezin, without reference to the amount that might have to be expended in discharging said offices.” The complainants claim, therefore, that by the death of said Rezin, before the testator, the said C. Lewis Hammond was prevented from performing the condition on which he was to have said legacy, and is no more entitled to the same than he would have been had said Rezin survived the testator, and the said C. Lewis Hammond refused to assume the performance of the duties towards said Rezin, mentioned in said will. It is further charged that Charles Lewis Hammond has collected the money mentioned in said above cited ⁵⁷⁸ clause of the will, and refuses to distribute the same among the persons entitled thereto, although all the deb s of the estate have been paid, and more than a year elapsed since the granting of the letters testamentary.

That although there is no general residuary clause in the will, there is a special residuary clause which includes all dioses in action, and they are advised that by failure of the above bequest, the said sum of $2500 passed to the persons named in said residuary clause, viz., the complainants, brothers and sisters of the testator. The bill prays that the construction of the will set forth therein, may be declared the true construction, and the executor required to charge himself accordingly with the $2500 and interest, and pay over to the complainants their respective shares. A copy of the will, duly authenticated, is filed with the bill, marked Exhibit A. The answer of Charles Lewis Hammond, in his own right, and as executor, was filed, admitting 1st. The execution of the will, the death of William B. Hammond, the granting of letters testamentary to him, the respondent, and the collection of the money. 2nd.

That the will contains the clause specifically set forth in the bill of complaint, but denies that the true intent and meaning of the language of said clause is set forth in the hill. Further answering the respondent says, “ that at the time the testator was preparing to have said will written, he asked the respondent, for what sum of money he would agree to look after and take care of Rezin Hamrnond as long as the said Rezin should live, and bury him at his death, and the respondent in answer thereto, and in. the presence of witnesses, agreed to pérform said services for such sum of money as the said William B. Hammond would devise to the respondent for that purpose. That at the time of this conversation the said Rezin Hammond ⁵⁷⁹ was sick and very feeble, all of which was well-known to the said William B. Hammond, and it was also known to the said deceased, that this respondent was a poor man with a large family of young children upon his hands, and he knew at the time of making said will, that the said Rezin was at the house of the respondent confined to his bed. And the respondent further says, he knew of the devise to him of said $2500 mentioned in the bill and of the conditions connected therewith, and that under and by virtue of said devise he looked after and took care of the said Rezin Hammond as long as he lived, and buried him at his death, and that he did agree with the said William B. Hammond to look after and take care of the said Rezin, and bury him at his death in consideration of said devise, and if said devise had not been made he was not able to, and could not have maintained said Rezin.” The respondent further contends that the testator survived the said Rezin, and although, he was in possession of his faculties and had ample opportunity to revoke said bequest, never did so, and never contemplated it, and it was not in his power to make a valid revocation of said bequest.

That apart from the agreement aforesaid, the devise took effect at the time of the execution of the will, and the respondent was to receive the sum of $2500 irrespective of the time said Rezin Hammond should die, provided the respondent from the execution of said will should look after, take care of and bury said Rezin, which he avers he did. These citations from the bill and answer foreshadow and present substantially the conflicting views of the appellants and appellees, which are set out more in detail in the briefs, and arguments of the counsel for the