Hill v. Safe Deposit & Trust Co.

⁶¹ McSherry, C. J., delivered the opinion of the Court. Martha E. Tyson, who departed this life sometime in the year 1883; left a last will and testament and by the residuary clause she gave the rest and residue of her estate to her two daughters, Isabella and Lucy, and the survivor of them so long as they or the survivor respectively remained single and unmarried; and after making other dispositions which will be alluded to later on the residuary clause proceeds to declare: “Whereas my daughters, Isabella and Lucy Tyson, or the survivor of them being single and unmarried may wish during their lives to sell or dispose of all or a portion of the residue of my estate for the purpose of changing the investment thereof, I hereby authorize them to do so. * * * The proceeds of sale, however, in such case to be received by my executors hereinafter named and to be by them reinvested in the name of my said daughters or the survivor of them being unmarried and to be held subject to the provisions and for the purpose herein expressed in relation to the residue of my estate. * * * And I further direct, in the event, that both of my said daughters, Isabella and Lucy Tyson, shall choose to marry that my executors hereinafter named the survivors and survivor of them, shall afterthe marriage of both of my said daughters sell and dispose of the entire residue and remiander of my estate * * * And it is further my will that the survivor of my said daughters, Isabella and Lucy Tyson, being single and unmarried until the time of her death shall have full power and authority to dispose of the'property herein given to her or of any reinvestment thereof, by her last will and testament absolutely in her discretion and that if she fail or neglect thus to^ dispose of it, the same shall, after her death, belong to her heirs at law." The daughter Lucy married before the death of her mother, but after the date of her mother’s will. In 1897, the other daughter, Isabella, executed a last will and testament to which are appended two codicils, one made in 1900 and one made in 1901. Isabella died on the 1st of February, 1903, without ever having married.

By the provisions of her will, she constituted the Safe Deposit and Trust Company of ⁶² Baltimore, executor, and gave to it the power to divide her estate and the estate over which she had a power of appointment into three equal parts, and to effect that end', the executor so named was authorized to make sale of all the property which passed under her will. In the exercise of that authority, the Safe Deposit and Trust Company sold a dwelling house situated on Madison avenue in Baltimore to the appellant, Henry F. Hill, and reported the sale to the Orphans’ Court of Baltimore City. This house was part of the property devised by the residuary clause of her mother’s will and formed part of the property to which the power of appointment applied. Thereafter the purchaser filed objections to the ratification of the sale, alleging that the executor of Isabella’s will was unable to convey a good and marketable title, because Isabella had no power under the terms and provisions of her mother’s will to dispose of the property in the manner that she did, inasmuch as she had not survived her sister, Lucy, who was then, and still is, living.

These objections were overruled, and on the 22nd of December, 1904, the Orphans’ Court of Baltimore City ratified and confirmed the sale. From that order the appeal now before us was taken. The pending controversy has grown out of that provision in the will of Martha E. Tyson, which we will cause to be printed in italics? It will be observed that by the provision just indicated, the survivor of the two daughters, Isabella and Lucy Tyson, being single and unmarried, was given full power and authority to dispose of ‘the property therein referred to, and to dispose of it by last will and testament, upon the concurrence of the two conditions that are there named.

The daughter who was clothed with this power was the one who would answer the description given in the will, that is, the one who was, at the time of her decease, the survivor of the two and who was also then single and unmarried; otherwise the power could not be exerted by her, unless other provisions of the will show that the word survivor was used in some different sense from that of the longer liver. The contention on the part of the appellees is, that Isabella, the one of the sisters, who died first, ⁶³ is to be treated as the survivor of the two, notwithstanding Lucy is still living; and it is insisted that she must be regarded as the survivor because when she died she was single and her sister was married. That is to say, the one whq is dead is to be treated as the survivor of the one who is living, though in fact the latter is alive; and the one who is living must be considered as having died when she married simply because she did marry, although she is still living. Without ascribing to the term, “survivor of my said daughters, Isabella and Lucy,” a meaning different from its ordinary signification, it is impossible to hold that the one dying first had the power to make a testamentary disposition of the property, merely because at the time she executed her will, and at the time she died, she was single and unmarried.

It would, in the absence of controlling circumstances, require a forced and unnatural meaning to be given to the word survivor if it were held to signify, not the longer liver of the two, but the one who departed this life first. In 27 Am. & Eng. Ency. L.

(2 ed.), 555, it is said: “To survive means simply to remain in life after the death of another, or after a particular date or the happening of a particular event. The primary meaning of the word ‘survive’ is to live beyond the life or existence of; to outlive; but it has according to some lexicographers, a secondary meaning, viz: to live after. In its ordinary as well as its legal signification, the word ‘survivor’ means one who outlives another; one of two or more persons who lived after the other or others have died.” The mere inconveniences which may result from giving to the word ‘survivor’ its ordinary and its legal meaning cannot be permitted to override that meaning, and cannot warrant an interpretation or definition of it which attributes to it a distinctly opposite signification. Such considerations would not be sufficient to justify that course.

No matter how unfortunate a situation may become in consequence of the application of the usual and ordinary meaning of the term survivor, Courts are obviously not justified in judicially declaring that the survivor of two persons is the one who has died first; unless it clearly appears either by an expressed declaration or ⁶⁴ by a strong and controlling inference, that the testator employed the word to convey a meaning different from that which it usually bears. It is stated in 3 Jarman on Wills (5 Am. ed.), 538, that whether the word “Survivor” is to receive a construction ac-^ cordant with its strict and proper acceptation, or is, by a liberal interpretation to be changed into other, is a point which has been often discussed and variously decided. On more than one occasion expressions have fallen from eminent Judges calculated to create an impression that the term survivor might by its own inherent force, and without one single ray of light from the surrounding context, be read as synonymous with other. In particular Sir W. Grant in Barlow v. Salter, 17 Ves. 479, seems to have assumed this point; and the construction recommends itself so forcibly, as carrying into effect the probable intention of the testator, and as supplying a defect or inaccuracy of expression very commonly to be found in testamentary instruments, that it. appears to have obtained too ready an acceptance in the profession, for we are now taught by a series of decisions, which outweigh any opposing dicta or opinions, that the word “survivor,” like every other term, when unexplained byother parts of the will, is to be interpreted according to its strict and literal meaning.

It may not be out of place to cite a few cases by way of illustration. Thus, in Aiton v. Brooks, 7 Sim. 204, it appeared that a testator had bequeathed fifteen hundred pounds in stock to A and B during their lives, in equal shares, and immediately on the death of either he directed his trustees to pay the share of such deceasing legatee to her children who should be living at their mother’s decease, and who should attain the age of twenty-one years, the interest in the meantime to be applied for maintenance; but in case any of such' children should die before they should attain the age of twenty-one years, the testator gave the share of such deceasing child to the survivor; provided, always, that in case- either of them, the said A and B, should leave any child living at their respective deceases, but which should all die before they ⁶⁵ attained the age of twenty-one years, then the trustees were to assign the share of such legatee so dying unto the survivor of them the said A and B, her executors or administrators. A died in the lifetime of B, leaving a child who attained twenty-one; B afterwards died without issue. Sir L. Shad-well, V. C, held A to be entitled to B’s moiety, observing,, “the word survivor must of necessity be taken to mean other, for the testator contemplated the event, not of one of the legatees dying in the lifetime of the other, but of one of them dying childless.” So in Wilmot v. Wilmot, 8 Ves. 10, a testator bequeathed one-third part of his property to each of his three children, payable at a certain age, and if either of them died before that age his share to be divided between the two surviving children; and in case of two dying before attaining the said age respectively, then the whole to go to the 'surviving child; but if all his children should die .before they should attain their said respective ages, then over.

One child attained th,e age and died; then another died under age; and the personal representative of the first was held by Lord Eldon to be entitled to share with the survivor the portion which went over on the death of the second. The Lord Chancellor said: “It must be argued that the word survivors means the same as others, or' living at the age aforesaid. In the clause in which the gift over is made it was never meant that any portion should be taken; it was to be either the whole or none.” It was held by Sir R. Malins, V. G, In re Arnold’s Trusts, L. R. 10 Eq. 252, that the ultimate gift over was not indispensable in these cases to the construing of “survivors” as others; and that Milson v. Awdry, 5 Ves. 465, which decided the contrary was, in