Henderson v. Henderson

Yellott, J., delivered the "opinion of the Court. This record discloses the following facts: Eliza C. Henderson, late of Baltimore City, on the eighth day of November, 1876, executed her last will and testament; in the second clause of which, she says: “I give, devise and bequeath unto my son, William Thomas Henderson, his heirs, executors and administrators, all those two lots of ground and improvements, situate on the north side of N. Gray street in the City of Baltimore, and known as Nos. 181 and 183, in trust and confidence nevertheless, to hold, have, receive and collect all the rents, issues and profits thereof, and use and dispose of the same as follows, that is to say, to pay all ground rents, taxes, water rents, repairs and other expenses that may be necessary to keep the said property in good, tenantable condition, and unincumbered, and to disburse the net proceeds that may remain as follows: to reimburse himself all proper expenses and commissions, and to divide the balance equally among and between my three children, Eobert Brown Henderson, Margaret Jane Lewis and himself, William Thomas Henderson, share and share alike, and in case of the death of any one or more of my said children, then the share or shares of such child or children to go to his or her lineal descendants, and in case either of my said children shall die without leaving issue, then the share of such child shall go to my surviving child or children equally, share and share alike.” ¹⁸⁸ This will, with its codicils, was admitted to probate on the 22d day of December, 1888. The said William Thomas Henderson, the trustee named in the will, died in the life-time of his mother, the testatrix, leaving two children, William Andrew Henderson and Robert Keen Henderson, infant defendants in the Court below, and appellees in this record. The other appellees, defendants below, are John Henderson Lewis, Albert Urband Lewis, and Margaret Lewis, who are the children of Margaret Jane Lewis, and grandchildren of the testatrix, and are infants residing in the State of Virginia.

The bill of complaint was filed by Robert Brown Henderson and Margaret Jane Lewis, surviving children of the testatrix, uniting therein with John A. Lewis, husband of said Margaret Jane, and David Henderson, executor of said will, for the purpose of obtaining a judicial construction of the clause which has been transcribed. In the construction of wills, the intention of the testator must be sought for and ascertained. If that intention is not in conflict with the settled policy of the law it will always be respected and allowed to operate. It is therefore apparent that the donor of property by a testamen-. tary disposition has an almost unlimited scope within which to exercise his judgment or to gratify his caprice.

Multitudes of wills are being brought into Courts for construction, and seldom do we find two of them exactly similar. Unlike deeds of conveyance in this respect they are as multiform and distinct in their structure, phraseology and purposes as are the mental operations, the motives and feelings of the different testators. Thus it is that, apart from the enunciation of some general principles applicable to all transmissions of property by last will and testament, the citation of authorities is of but little utility. The exercise of what seems to be sound judgment and common sense may,- however, be safely invoked and relied upon in the. ascertainment of intention.

The peculiar sit- ¹⁸⁹ nation of this testatrix and the relations subsisting between her and the recipients of her bounty, must therefore be considered in connection with the language of the document itself in order that we may bo fully enlightened in regard to the real motives and intent by which she was controlled in the execution of this will. At that time Eliza C. Henderson had three children. Two of these children are still living, and her son William Thomas died after the execution of the will, but before the decease of his mother. Eobert Brown Henderson and Margaret Jane Lewis, contend that on the death of their mother they each became entitled to, and they now claim an absolute estate in, one-third of the property in question.

Now it seems to be entirely consistent with the suggestions of reason and common sense to suppose that if Eliza C. Henderson intended that as soon as her death occurred, each of her three children should have an absolute estate in one-third of her property, she would not have made a will creating a trust which would have been wholly unnecessary and a mere work of supererogation, as by mere operation of law each of her three children or their heirs, would have become entitled to an equal distributive share of said property. We are thus led to inquire for what purpose was the will made and the trust created ? Evidently in order that her bounty might not fail to be extended to her grandchildren. If a third was left to a son or daughter as an absolute estate, he or she might subsequently to the death of the testatrix, dispose of his entire share and waste the proceeds in prodigal expenditures, and the grandchildren would be left destitute.

But by creating the trust, her children enjoyed the income during their lives, and the corpus of the estate was protected and kept intact for the benefit of her descendants in the second degree. This seems to have been the intention of the testatrix in so carefully protecting the property by the creation of a trust, and by requiring the active in ¹⁹⁰ tervention of a fiduciary agent. In regard to the construction of wills, this Court, adopting the language of Chancellor Kent, has said that “ though we are not to disregard the authority of decisions, even as to the interpretation of wills, yet it is certain that the construction of them' is so much governed by