Hemsley v. Hollingsworth

Boyd, C. J., delivered the opinion of the Court. Mrs. Mary Hemsley Sterett, widow of Samuel Sterett, died on September 10th, 1911, leaving a last will and testament which was executed on January 16, 1897, by which she left all her estate to her executors, whom she directed by the first clause, to pay her just debts, funeral expenses and costs of the administration and to erect a tombstone over her grave, and by the second clause she directed them to divide the residue of her estate as therein stated between those we will designate as the McKims and the Hemsleys. Walter Hemsley, individually, and he and John Hemsley Johnson, executors of the will of Mrs. Sterett, filed a bill in equity in Circuit Court No. 2-of Baltimore City against those interested in the will and asked that the Court would assume jurisdiction over the further administration and settlement of the estate, construe the will and direct and protect the executors in the discharge of their ⁴³⁴ duties. That Oourt assumed jurisdiction and determined a number of questions which are the subjects of these three appeals, the first of which was taken by the Hemsleys, the second by S. Sterett McKim and the third by Walter Hemsley, one of the plaintiffs.

We will consider the various questions in the order they were passed on by the lower Oourt. 1. The second clause of the will gives rise to the controversy over the construction of the will. It is not divided into paragraphs, but is printed in the record as one paragraph. For convenience of reference, however, and to emphasize certain portions, we will divide it, will italicize parts of it, and will insert in brackets the numbers which do not appear in the will.

It is as follows: (1) “The residue of my estate I empower and direct my executors to divide into two equal parts. (2) In the first part they are to put my interest in my house and lot On Saint Paul Street and my shares in coal companies and interest in coal mines in Schuylkill County, Pennsylvania. (3) Into the second part they are to put all the balance of my estate and property except my household furniture and silverware and my articles of personal use that I may not dispose of during my life, all of which they are to divide equally among my four brothers and my nieces, Maria Kerr and Elizabeth Tilghman Hemsley, who are to take one-fifth thereof, the share of their father, Tilton Hemsley, deceased. (4) The first mentioned of the two above described equal parts of the residue of my estate my executors are to assign, pay over or convey as follows: One-half thereof or one-quarter of the residue to my friend and cousin, Hollins McKim, and one-quarter to the following descendants of Isaac McKim, and their heirs in such manner that one-half of the said one-qnarter shall go to S. Sterett McKim, who bears my husband’s name, and the other half of the said one-quarter in two equal parts * * * ⁴³⁵ (5) The remaining one-half of my estate constituted as above described my executors will pay over, assign and convey as follows”: leaving one-fifth to each of her half-brothers, Oswald T. and Walter, and three-fifths to the Safe Deposit and Trust Company in trust as therein provided for.

The important question raised as to the construction of the above is, whether by the will the McKims only took the interest of the testatrix in the Saint Paul street property and in the coal companies and mines, as the Hemsleys contend, or whether they took one-half of the residue of the estate, after the payment of debts, etc., provided for in the first clause, as the McKims claim. The question becomes important because the Saint Paul street property and the interest in the coal properties are together worth probably less than a fourth of the residue of the estate. Samuel Sterett, the husband of the testatrix, left all of his estate to her by his will admitted to probate in 1879, and he was a relative of the McKims, while Mrs. Sterett was a Hemsley. Ho shares in coal companies were found by the executors, but the testatrix had an interest in coal land in Schuylkill county.

In our judgment the learned Judge below, who filed an able and clear opinion indicating the reasons for the conclusions reached by him, was correct in holding that it was the intention of the testatrix to leave the McKims one-half and the Hemsleys the other half of the residue of her estate, and that she did not intend to confine the McKim interest to the Saint Paul street property and the coal companies. She distinctly empowered and directed her executors to divide the residue 'of her estate into two equal parts — no* simply into two parts. If she had intended to only leave the McKims the Saint Paul street and coal properties, the usual, natural and simple way would have been to have said, “I give, devise and bequeath” those properties as described in the will to those named, in the proportions they were to take them. But she not only did not do that but, after ⁴³⁶ directing the residue of her estate (which consisted of everything left after the payment of her just debts, funeral expenses, etc.), to be divided by her executors into two equal parts, she simply said: “In the first part they are to put my interest in my house and lot,” etc. But that is not all, for after referring" to the second part she said: “The first mentioned of the two above described equal parts of the residue of my estate, my executors are to assign, pay over, or convey as follows,” — thus again speaking of the two equal parts.

Then when she had provided for the McKims and was about to make provision for the Hemsleys she said: “The remaining one-half of my estate constituted as above described, my executors will pay, assign and convey as follows” to the Hemsleys. But as paragraph (3), which immediately follows (2), reads: “Into the second part they are to put all the balance, of my estate and property,” except the household furniture, etc., “all of which they are to divide equally among my four brothers and my nieces,” it is contended that the testatrix thus left to the Hemsleys all of her estate and property excepting the Saint Paul street house and lot and her interest in the coal properties, after payment of the debts, etc. But such construction would ignore and render meaningless not only the express directions to divide the residue of the estate into two equal parts, but the distinctly expressed intention of the testatrix, when she named the beneficiaries of the first part, where she said, “The first mentioned of the two above described equal parts.” It seems clear "to us that she only meant by paragraph (3) to say, all of the balance of her estate and property which remained after taking out for the first part the Saint Paul street property and the coal properties, and so much more as was necessary to carry out her intention that there should be two equal parts, and that she used the expression, which it must be admitted is an awkward one, in connection with the exception following, that is to say, the household furniture, etc., which she gave absolutely to the six Hemsleys mentioned. There is much ⁴³⁷ more reason for holding that the household furniture, silverware and articles of personal use were to be regarded as part of the second part in the division of the residue, but as those articles were distributed in the account passed by the Orphans’ Court of Baltimore before this bill was filed and that account has not been disturbed, we will not discuss that question further, but will sustain the decree of the lower Court in regard to this branch of the case. We do not think that the cases cited by the appellants, Cole, Executor, v. Ensor, 3 Md. 446 ; Douglass v. Blackford, 7 Md. 8 ; Mims v. Armstrong, 31 Md. 87 ; Zittle v. Weller, 63 Md. 190 ; Needy v. Middlekauff, 102 Md. 181 , and Cochrane v. Harris, 84 At.

Rep. 499 , are in any way in conflict with that conclusion. When we read this will in the light of the circumstances in which the testatrix was placed, we are convinced that her intention was to leave one-half of her estate to the McKims and the other half to the Hemsleys, and there is nothing in any of the authorities cited to prevent her intention being canned out. The general rule in the construction of wills is that, “where there is a general and particular intent, apparent upon the face, the general intent, although first expressed, shall control and overrule the particular, if there be a conflict between ihem.” Chase v. Lockerman, 11 G. & J. 185 ; Thompson v. Young, 25 Md. 450 , and Taylor v. Watson, 35 Md. 519 . In this will, as we have seen, the general intent that the two parts should be equal was not only expressed in the first part of the will, but was repeated, after what is claimed to be a particular intent was indicated, ■ — -thus removing, as it seems to us, any possible doubt of the intention of the testatrix. 2.

The next question to be determined is whether the devise or legacy to Hollins McBum lapsed by reason of Ch. 37 of the Act of 1910 (p. 323) (sec. 326 of Art. 93 of Code of 1912). The original statute to prevent the lapsing of devises, legacies and bequests had been in force one hundred years when the Act of 1910 was passed — being Chapter 34 ⁴³⁸ of Act of 1810. It was amended by Chap. 295 of Acts of 1832, wbicb was passed to remove doubts which- existed as to whether it extended to devisees or legatees, unless they were specially named. Young v. Robinson, 11 G. & J. 328 .

Those two acts were codified in the Code of 1860 in language which was repeated in the Codes of 1888 and 1904, and the Act of 1910 adopted the same language and then added, “provided, however, that this Act shall not apply to the last will, testament or codicil of any person dying after the passage of this Act, where the maker of said last will, testament or codicil, after the execution thereof and before the death of such devisee or legatee, shall become insane or Otherwise incompetent .to cancel, revoke, annul, obligate or alter said last will, testament or codicil.” That Act was passed March 31st, 1910, and took effect the same day. Most of the testimony before us relates to the question of the ability, ml non, of Mrs. Sterett to revoke or change her will. It is shown that on November 3rd, 1909, she was paralyzed, and on the 16th of that month J. Hemsley Johnson was, on the petition of two of her brothers, appointed trustee of a fund deposited in the Colonial Trust Company to her credit, with authority to withdraw said fund under the direction of the Court, in order to apply the same to her care, maintenance and support. The validity of that order has not been called into question in this case, but Mr. Johnson continued to act as such trustee until about the 17th of November, 1910, when Mrs. Sterett was adjudged insane.

Mr. Johnson was appointed committee and continued to act as such until her death. The jury found that she was “of unsound mind and a lunatic, with lucid intervals, so that she is not capable of the government of herself or the management of her estate, and that she had been in such state of mind for more than one year past.” The language of the proviso in the Act of 1910 is very broad, but it certainly can not be contended that it means that if a testator becomes insane, or incompetent to act, between the execution of the will and the death of the devisee ⁴³⁹ or legatee, but recovers or has lucid intervals in wbieb he could have cancelled, revoked or altered his will, the devise or legacy must lapse. Such a construction would be within the letter of the proviso, but surely not within its spirit and would be too unreasonable to be adopted by a Court. It is by no means certain that under the testimony in this case the testatrix could not have executed a valid deed or contract during a considerable part of the time between the death of the devisee and her death, and if that had been clearly shown we are not prepared to say that this proviso would apply, as in our judgment the expression, “shall become insane or otherwise incompetent” must be construed to mean, shall become insane or otherwise incompetent, and so continue to be, that the testator is unable to change his will.

But that question would involve a discussion of a great deal of evidence and a number of questions, and as we are of the opinion that Judge Hablan reached a proper conclusion as to the construction of the Act, although we have carefully considered the evidence, we will base our decision on the ground he relied on. The will was made in 1891, Mr. McKim died May 17, 1911, and Mrs. Sterett died September 10th, 1911. If it be conceded that the testimony shows that the testatrix became incompetent to alter or revoke her will before the death of Mr. McKim, then we think it must likewise be conceded that she became so before the passage of the Act of 1910— that is to say, when she received the stroke of apoplexy, which resulted in paralysis. The evidence is stronger as to her lack of competency at that time and for some time after-wards, than it is of a more recent date.

As shown by the Acts referred to above, it had been the policy of this State for one hundred years to prevent a devise, legacy or bequest, from lapsing merely because the devisee or legatee had predeceased the testator, and our statute was originally much broader than most of those passed elsewhere on the subject. A lawyer of this State when called upon to draw a will would necessarily have been influenced by this well known pro ⁴⁴⁰ vision of law that had been in force nearly ever since Maryland had been a State, and had been passed upon in many decisions of this Oonrt, in which various questions had arisen. In providing for making devises or bequests to cal-lateral relations, or to those not related at all to the testator, a careful lawyer would have advised his client of the result in case such a devisee or legatee died before the testator, so that he could provide for such a contingency if he did not want the property devised or bequeathed to pass to the heirs or next of kin of the devisee or legatee. In Vogel v. Turnt, 110 Md. 197 , we quoted with approval from 18 Am. & Eng.

Ency. of Law, 758, that “It must be presumed that the testator made the will in view of the statute and that he intended to have the statute prevail, unless the contrary appeared. The burden of showing the contrary is on the party claiming that the statute does not apply, and this burden is not lifted when it is made to appear that the legacies were prompted by personal regard for the legatees, for the fact that they were so prompted is not at all inconsistent with an intent to-have them go to the descendants of the legatees in case the legatees themselves die before the testator.” It had been decided as early as 1835, in Glenn v. Belt, 7 G. & J. 362 , that a legacy protected by the statute went directly to persons in esse entitled to the distribution of the deceased legatee’s estate, did not pass as assets to the executor or administrator of the deceased legatee and was not liable for his debts. Such is still the law of this State.