Kuykendall v.

Page, J., delivered the opinion of the Court. The questions arising on these appeals grow out of the distribution of the estate of John S. Combs, whose last will was construed, and the rights of parties under it were determined, by this Court in Bevecmon, et al. vs. Shaw and Devries, Bx’rs, 70 Md., 219 . His daughter, Althea Louisa Combs, who has since intermarried with David F. Kuykendall, having arrived at the age of twenty-one years, has filed a petition, praying the Court to assume jurisdiction over the subject-matter of the will, and the estate of her father in the hands of the executors and trustees, appointed by the testator, and further to adjudicate the rights of the several legatees and distributees of his estate. Upon this petition all the parties interested answered, and the Court passed an order by which it assumed jurisdiction of the estate, ordered the executors and trustees to make a full report, that a final distribution might be made, and on the 4th of August, 1893, after the trustees and executors had made their several reports, and other proceedings were had, ordered the papers to be referred to the auditor, with the instructions set out in the record.

On the 28th of September, 1893, the auditor submitted his report, to the ratification of which Mrs. Kuykendall and Messrs. Shaw and Devries, and the Devecmons, objected upon various grounds, which will be stated hereafter. By the third clause of John S. Combs’ will he bequeathed to his daughter Althea Louisa, the balance of United States bonds invested in his name, amounting to $29,000; also fifteen shares of stock in the Second National Bank of Cumberland, twenty-five shares of stock in the National Bank of Baltimore, and also, all the money deposited in his daughter’s name in the following Savings Banks in Baltimore, viz., the Eutaw Savings Bank, the Central ⁵⁴⁰ Savings Bank, the Metropolitan Savings Bank and the Savings Bank, “in fee * * * subject to be defeated by the death of said Althea Louisa, without leaving a child or children at the time of her death, or, in case she shall die leaving a child or children surviving her, by the death of such child or of all such children under the age of twenty-one years," and in the event of such contingencies happening, this property is to pass to Mrs. Althea M. Devecmon and to her children and grandchildren, to stand in the place of their deceased parents. 70 Md., 229 . The money in the Savings Banks, amounting to the sum of $5,725.88, was deposited in the name of Althea Combs while she was a minor, and she claims, that it was her property at the time it was so deposited, and still is.

It is treated by the auditor as part of the estate of the testator and subject to the executory devise to Mrs. Devecmon, whereas she contends it should have been awarded to her absolutely. It is unnecessary to inquire whether the proof establishes her title to this property, because if she claims an interest under the will, she must give full effect to its provisions, as far as she is able. It is only carrying out the plain intent of the testator, that the funds in the Savings Banks should stand on the same footing with the other items of property mentioned in the same clause, and be subject, like them, to the executory devise to Mrs. Devecmon. “ The foundation of this doctrine " said this Court in Barbour and Daingerfield vs. Mitchell, 40 Md., 161 (citing from Spence’s Equity) “is the intention of the testator and its characteristic is that by equitable arrangement, effect is given to a donation of that, which is not the property of the donor * * . The intention being assumed, the conscience of the donee is affected by the condition, (though destitute of legal validity) not expressed, but implied, annexed to the benefit proposed to him.

To accept the benefit, while he declines the burden, is to ⁵⁴¹ defraud the design of the donor.” McElfresh vs. Schley and Barr, 2 Gill, 181 . 2-, Mrs. Kuykendall, also excepts to the report, because, “the sum of $6,521.28 being two-thirds of the residuum after paying debts, &c., is audited to her “subject to the devise to Mrs. Devecmon,” whereas she claims that it should have been awarded to her absolutely, free from any trust in the will, and also from the devise over to Mrs. Devecmon. The testator, having made certain devises and bequests, directed his executors to sell all his real and personal property, not otherwise disposed of in his will, and to divide the proceeds between his wife and daughter, one-third to his wife, and two-thirds to his daughter. Mrs. Combs renounced the will, aud in consequence the specific property intended to pass to the widow under the will, became subject to the power of sale vested in the executors as “part of the estate not otherwise disposed of,” and an intestacy resulted, “as to the one-third of the real and personal estate, embraced in and operated upon by the residuary clause of the will.” 70 Md., 227 . The Court below was of the opinion that the decree in the case in 70 Md. embraced the portion of the residuary fund bequeathed to the daughter, but we cannot concur with him.

The decree states that the adjudication was made “for the reasons set forth in the opinion of the Court filed in the case.” We are therefore at liberty to refer to the opinion to assist us in determining the scope of the decree, and to what portion of the will it was intended to apply. In his opinion, Judge Alvby, states that the case was submitted for the purpose of obtaining a judicial construction of the will “with respect to certain questions, supposed to be of doubtful solution;” and after citing the clause containing the limitation, proceeds to discuss the nature and effect of “this devise over.” There is not a word in reference to the property ⁵⁴² disposed of by the residuary clause, except in connection with the effect of the renunciation of the widow. When the decree, therefore, speaks of the real and personal estate bequeathed to the daughter by the testator, it must be held to refer to that only, which passed under the particular clause he was considering, and not to that covered by the residuary clause. Turning now to