Lavender v. Rosenheim

Pearce, J., delivered the opinion of the Court. This appeal involves the construction of the will of Mrs. Elizabeth Whalen, executed December 19th, 1889, and probated February 18th, 1891. The particular clause which we are required to interpret is the following: “J give, devise and bequeath all the rest and residue of my estate, after the payment of the above-mentioned legacies, unto the wife of my said son, Oliver E. Whalen, absolutely.” The preceding provisions' of the will need not be transcribed; it will be sufficient to state their substance and effect. The testatrix devised and bequeathed all of her estate, of every kind and nature, to Benjamin Eosenheim, in trust to collect the rents, issues and profits thereof, and to pay over such part as he should think proper, to her son, Oliver E- Whalen, during his life, and upon his death the corpus of said estate to become the property of the child or children of said son surviving him.

In event of his death without such surviving child or children, she directed the payment of four legacies of $200 each to certain nieces and nephews, and then immediately follows the residuary devise and bequest above transcribed. The case originated in a bill filed by the trustee under the will to obtain the direction of the Court as to the distribution of the trust estate, the son having died without surviving child or children. The heirs at law and distributees of the testatrix and the appellants, Mary A. Lavender and Frank J. Lavender, her husband, were parties defendants in that proceeding, Mary A. Lavender being the same person who was the wife of the son at the date of said will, but who was afterwards divorced’ from the said Oliver E. Whalen. Some of the defendants wei’e summoned and some were brought' in under order of publication; all those answering admitted all the allegations ¹⁵² of fact of the bill; a decree pro confesso was entered against those not appearing under the order of publication, and the general replication was filed to the answers of those who did answer, and the case was heard upon the following agreed statement of facts filed in the cause by.counsel for the plaintiff and the counsel for the defendants: “That Mary A. Whalen was manned to Oliver R. AVhalen, Oct. 31st, 1889; that she knew testatrix; lived in the same house with her, and was present at time testatrix made, her will, which will was executed Dec. 19th, 1889; that thereafter on Dec. 13th, 1891, testatrix died, and at the time of her death Mary A. Whalen, now Lavender, was the wife of Oliver R. Whalen, son of testatrix; that on March 4th, 1898, said Mary A. Whalen, upon her application, was granted a .divorce a vinculo matrimonii from said Oliver R. Whalen on grounds of abandonment; that on or about March 19th, 1899, said Mary A. Whalen married Erahk J. Lavender; that said Mary A. Whalen was the only wife said Oliver R. Whalen ever had, and that said Oliver R. Whalen at time of his death had no child, or children, or descendants of children, nor did he ever have any children. “It is further agreed that all of the material allegations of the bill of complaint, save and except such allegations as may affect the legal construction of the will of Elizabeth "Whalen are hereby admitted to be true.” The Circuit Court' of Baltimore City decreed that said residuary clause of said will is inoperative and void as to the residuary estate in the hands of the trustee, and therefore had descended to, and should be distributed among, the heirs at law and distributees of the testatrix, and that the same should be sold by said Benjamin Rosenheim for the purpose of such distribution, he being appointed trustee for that purpose by said decree, and from that decree Mr. and Mrs. Lavender have appealed.

The effect of this decree is to establish the Intestacy of Mrs. Whalen as to all of her estate except the four legacies of $200 each, aggregating, as far as the value of the estate can be ¹⁵³ estimated from the averments of the hill, less than one-fifth of the estate; and this result is worked in spite of the emphatic manifestation in the language of the will of a contrary purpose on her part. Such a result is sometimes forced upon Courts by the necessary application of established rules of construction to the plain language of a will, but it is never reached if it can be avoided without violation of clearly controlling legal principles. The abhorrence of Courts to intestacy, under a will, may be likened to the abhorrence of nature to a vacuum, and that “axiom in the physical sciences may be appropriately transferred to a judicial question of this nature,” as was said by Judge Yellott in Johnson v. Hines, 61 Md. 131 , in speaking of a somewhat similar axiom. The purpose of the testatrix to dispose of the whole of her estate appears in the first clause of the will, in which she devises and bequeathes “all my estate, real, personal and mixed of which I may die seised and possessed” to the trustee therein named, “subject, however, to the conditions, uses, limitations and trusts hereinafter mentioned;” and this purpose is again declared in the last clause relating to the disposition of her estate, wherein she devises and bequeathes “to the wife of my son, Oliver R. Whalen, absolutely,” “all the rest and residue of my estate, after the payment of the above legacies.” The repugnance of Courts to construe wills so as to declare an intestacy is expressed by the highest Courts in England and America and by all the standard text-books upon wdlls.' Mr. Jarman, Vol. 1, star page 809, says: “It has been generally thought that a very clear intention must be indicated, in order .to postpone the vesting under a residuary bequest, since intestacy is often the consequence of holding it to be contingent, or at least (and this is the material consideration) such may be its effect; for in construing wills we must look indifferently at actual and possible events.” In Booth v. Booth, 4 Vesey, 407, the Master of the Rolls said: “That there is a difference between a bequest of a legacy and a residue with reference to this point cannot be denied ¹⁵⁴ either -upan principle or precedent.” And in West v. West, 4 Giffard, 202, the Court said; “There is certainly a strong disposition in the Court to construe a residuary clause so as to prevent an intestacy with regard to any part of the testator’s property.” And in Lett v. Randall, 10 Simons, 115, the same Court said: “One does not like to construe a will so as to make the testator die intestate, unless it is impossible so to construe it as to give effect to what may be fairly collected to have been his intention.” In Dulany v. Middleton, 72 Md. 15 , Judge Alvey said: “It is very clear, from all the provisions of the will, that the testator intended to dispose of all his estate, and that he did not contemplate the possibility of a state of intestacy as to any part of his estate, with respect to any event or for any interval of time.

Besides this, the law favors the vesting of estates at the earliest moment that is consistent with the apparent intent of the testator or the general scheme of his will. The general principle is that any devise or bequest in favor of a person or persons in esse, whether such persons be individualized or treated as a class, unless there be some clearly expressed desire or some manifest reason for suspending or deferring the time of vesting confers an immediate vested interest, though the'time of possession or enjoyment may be postponed. This principle is especially enforced in regard to residuary bequests, since intestacy is generally the consequence of holding them to be contingent. As said by Lord Alvahxey, M. R., in Booth v. Booth, 4 Vesey, 407: ‘Every intendment is to be made against holding a man to die intestate, who sits down to dispose of the residue of his property. ’ ” Mr. Jarman, in discussing the period from which a will speaks since the Act of 1 Vict., Ch. 26, enacted in 1831, says, on star page 302, of Vol. 1: “It is clear that if a testator, under the old law, gave an estate or- a sum -of money to his son John, the gift took effect in favor of his son of that name (if any) at the date of the will, and of him only.” The language-of-that Act was: “Every will shall be construed, with ¹⁵⁵ reference to the real estate and personal estate comprised in it to speak and take effect as if it had been executed immediately before the death of the testator, unless a contrary intention shall appear by the will.” Mr. Jarman then adds: “It will be observed that this enactment relates to the subject-matter of the disposition, and does not in any manner interfere with the construction in regard to the objects of gift, as to whom, therefore, the doctrines