Hinkley v. House of Refuge

Alvey, J., delivered the opinion of the Court. Whether the appellees, the charitable legatees mentioned in the will of Edward Evatt, deceased, are entitled to receive at once and without delay, the legacies bequeathed to them, or -whether payment is to be delayed until the death of the widow of the testator, is the sole question presented on this appeal. By the will the testator bequeathed to his wife, absolutely, all his furniture and stock in trade, and authorized her to receive to her own use, during life, the interest on all the Baltimore city stock which he might oAvn at the time of his death; and he also gave and devised in trust certain property, consisting of houses, in the city of Baltimore, and United States bonds to the amount of ten thousand dollars, with directions that the net income therefrom, that is to say, the rents, dividends and interest, should be paid over to his wife, for her sole and separate use, during her life; and after various devises and bequests, all the residue of his estate, of every kind, after payment of debts and expenses of administration, the testator gave and devised in trust, for the sole and separate use of his wife, ⁴⁶⁸ during lier life. And from and after the death of his wife, as to all the property held in trust for her use for life, the testator directed the trustee to pay out of the principal thereof the several legacies to the charitable institutions named, the present appellees; and, after the payment of these legacies, the rest of the property, so devised and bequeathed, to be held for the use of his wife for life, is directed to be held in trust, as to one-half part thereof, for the use of all the children of the testator’s daughter, who may be living at the decease of his wife, equally to be divided between them ; and as to the other half part thereof, for the use of all the children of the testator’s sister, who may be living at the decease of his wife, equally to be divided between them.

And in order that the estate should be advantageously administered, and distributed according to the directions of the will, the trustee was fully empowered to sell and dispose of- all or any part of the estate. The other portions of the will are not material to be noticed. The widow of the testator renounced all benefit under the will, and made her election to take dower and distribution under the law. The widow is still living.

After her renunciation the real estate was sold by the trustee, and the proceeds of the whole estate were brought into equity for distribution, under the direction of the Court. In this state of the administration of the estate, the appellees made application to have their legacies paid at once, upon the theory, that as the widow had renounced all devises and bequests under the will, the time of payment of such legacies had been thus accelerated, and that they were entitled to receive them presently, notwithstanding, by the terms of the bequests, the legacies were payable only on the death of the widow of the testator. Now, it is certainly true, that at law, if a party devise to A for life, with remainder to B, and A renounce the devise, or the first devise be void, the remainder is good, ⁴⁶⁹ and will take effect immediately. Shelley’s Case, 1 Co., 101 a: The Rector of Chedington’s Case, 1 Co., 154: Plowd., 344.

Thus in Fuller vs. Fuller, Cro. Eliz., 423, it was said, as to the second point resolved in that case, that, as the first devise was void, lie in remainder was entitled to take the estate presently; for the first devise being void, it was as if it had never been made; and so if the first devisee refuse, he in remainder shall take the estate presently. The same principle was affirmed in Hodgson vs. Ambrose, Douglas, 331, where it was held, that, if the first estate devised never takes effect, the remainder vests in possession