Levering v. Riggs

Robinsoil, J., delivered the opinion of the Court. Clinton Levering, by last will and testament, gave his entire property to his wife for life, and upon her death he disposed of it as follows : By the third clause, he devised a house and lot on Howard street in trust for his wife’s niece, Louisa Childs, for life, and upon her death he directed the said house and lot should constitute a part of the general residuum of his estate, “tobe disposed of and pass as such.” By the fourth clause, he devised a house on Franklin street in trust for his sister Elizabeth Levering for life, and after her death in trust for her daughter, and should she die without leaving children, he directed it should constitute a part of the general residuum of his estate. By the 5th clause, he devised a store-house on South street, in trust for his sister Alice A. Levering for life, and after her death one-third of the same to each of three of her children, with provision that in case of death without children, each of said third parts of said property should go to and constitute part of the general residuum of his estate. By the sixth clause, he devised a second store on South street in trust for his sister Virginia Latimer for life, and after her death to her children.

By the seventh clause, he bequeathed a legacy of forty thousand dollars in trust for his nephew, Robert Levering, one-half to be paid to him when twenty-five years of age, the other half when thirty years of age, with a provision that in case of his death without wife or children the said legacy or all parts or portions thereof not previously paid to him, should constitute a part of the general residuum of his estate. ⁴³⁵ By the eighth clause a legacy of twenty-five thousand dollars is given in trust for his nephew, Charles Ferguson, Jr., with a provision that in the event of his death before attaining the age of thirty years without leaving wife or •children the said legacy or so much thereof as may not have been paid to him, should go to and constitute a part of the general residuum of his estate. By the ninth clause, he directed certain trustees therein named to sell all the rest and residue of his estate, real, personal and mixed, as soon as practicable after the death of his wife, and out of the proceeds of sale to pay:— 1st. The legacies of $40,000 and $25,000 bequeathed to Robert Levering and Charles Ferguson, Jr., and secondly, sundry other legacies mentioned in said clause; and then the rest and residue of said net proceeds of sales, if any there should remain after the payment of all the above legacies, he gives to certain nieces and nephews. And then at the close of his will, he says: — ‘ ‘ If there should remain any portion of the residuum of my estate in the hands of my said trustees, or either of them, I order and direct and hereby bequeath the same to my next of kin according to the laws of the State of Maryland.” Charles Ferguson, Jr., died in the life-time of the testator’s widow, and the legacy of $25,000 bequeathed to him is claimed on the one hand by the appellants, the nieces and nephews of the testator, named as legatees in the ninth clause, and on the other by the appellees, as next of kin under the general residuary clause of the will.

Before determining the rights of the respective parties to the legacy of $25,000, it is necessary to understand precisely what property passed to the trustees under the ninth •clause, and which the testator directed should be sold upon the death of his wife. By the third, fourth, fifth and sixth clauses, the testator specifically devised and bequeathed all his property, except ⁴³⁶ the house on Garden street, valued at $47,000, the house on Monument street, valued at $18,000, and certain stocks and furniture of the value of about $30,000. Now the appellants contend that “the rest and residue of his estate” which the trustees by the ninth clause were directed to sell, embraces not only the houses on Garden and Monument streets, and the stocks and furniture, not disposed of by the previous clauses of the will, hut also “ the residuum,” which the testator in the third, fourth, fifth, seventh and eighth clauses directed should upon the happening of certain contingencies constitute-part of his estate. The appellees insist that by “ the rest and residue” the testator meant only such property as he had not specifically devised and bequeathed in the previous clauses of the will, and that the residuum referred to in said clauses, passes to them as next of kin under the general