Hoover v. Smith

Boyd, J., delivered the opinion of the Court. This is an appeal from a decree of the Circuit Court for Frederick County construing the will of Gideon Hoover. The portion of the will involved in this controversy is as follows : “ Item ist. I devise and bequeath to my beloved wife, Elizabeth, all my property, real, personal and mixed, to have and to hold the same during her natural life, or as long as she shall continue to be my widow. “ After either of the above events the property to be sold and divided equally among my lawful heirs. “ The children of deceased heirs shall inherit the full portion as their parents would have done if living.” The testator died September 6th, 1874, the day after his will was executed, leaving surviving him a' widow, two sons, a daughter, two grandchildren, who were the children of a deceased daughter, Eliza Stottlemyer, and a granddaughter who was the child of another deceased daughter, Olive Wolf.

Elizabeth Wolf the daughter of Olive, died December 7th, 1890, and Elizabeth Hoover the widow of Gideon died in October, 1901, without having remarried. Annie M. Maugans, one of the daughters of the testator, and her husband, made a deed for their interests in the “ Gideon Hoover farm,” which the bill prays may be construed, but it was stated at the argument that that was no longer necessary and the only question for us to determine is whether Elizabeth Wolf had such interest in the estate of her grandfather as to pass at her death to her representatives. She never married and Jacob Wolf, her father, claims the interest in the estate which it is admitted she would have been entitled to if she had lived until the period of the distribution of her grandfather’s estate. The law favors the early vesting of estates and “Courts ³⁹⁵ will, in the absence of plain expressions, or an intent plainly inferrible from the terms of the will, adopt the earliest time for the vesting where there is more than one period mentioned.” Straus v. Rost, 67 Md. 476 .

It is a well recognized rule of construction that in doubtful cases the interest shall be deemed to be vested in the first instance, rather than contingent, unless the instrument under consideration does not admit of such construction. When a testator has employed terms in his will' which in their ordinary signification are in accord with such familiar and fixed rules of law, it should require very clear expressions elsewhere in the will to justify the Court in giving such terms some other and unusual meaning. When, therefore, a testator directs that after his wife’s death or marriage his property is to be sold and divided equally among his “lawful heirs” and makes no other disposition of the remainder after his wife’s death or marriage, when and in whom does such remainder vest ? At common law an heir is “he who is born or begotten in lawful wedlock and upon whom the law casts the estate in lands, tenements or hereditaments immediately upon the death of his ancestor.” In 15 Ency. of Law, (2 ed.) 322, it is said : “A devise to heirs, whether to one’s own heirs or to the heirs of a third person, designates not only the persons who are to take, but the manner and proportion in which they are to take.

Where there are no words to control the presumption, the law presumes the intention to be that they take as heirs would take by the rules of descent,” and again it is there said “It is well settled that a gift to the heirs of one will be construed as referring to those who are such at the time of the ancestor’s death.” If then we adopt the ordinary meaning of the term used by the testator (lawful heirs), we find that he presumably intended that those who would be entitled to his real estate at the time of his death should get the benefit of the proceeds of the sale. It cannot be successfully contended that merely because he gave his wife an estate for life, or as long as she continued to be his widow, the vesting of the estate given the heirs should be postponed until the widow’s interest ceased. If he had ³⁹⁶ said ‘ ‘After either of the above events the property to be sold and divided equally among those who are entitled to it by the rules of descent at the time of my death,” there could be no question about it. And when he used a term which has that meaning, in the absence of some intention expressed to the contrary, must it not be given to it ?

It is true that this will speaks of real and personal property and the record does not show how much there was of either, but the word “heirs” has been held to include “next of kin,” when used in such connection as it could be seen such was the intention, and as this testator left three children and three grandchildren, who were children of his deceased daughters, if he had died intestate, the same persons who would have inherited his real estate would have been entitled to distribution of his personal property. Those who were his heirs were also his next of kin, and we are now considering the class of persons who were to receive his property. His children and grandchildren were not named in the will, but instead of naming them he described them by the term we have mentioned. So reading the will thus far, we find that the testator left his property to his wife for life, or as long as she remained unmarried, and after her death or marriage, to a class of persons whom he designated by the term which the law says means those upon whom the law casts his real estate immediately upon his death,