Littig v. Hance

McSherry, J., delivered the opinion-of the Court. The will of Eliza G. Hance, dated June the twentieth, 1891, contains the following clause: “And whereas the estate of my late husband, Seth S. Hance, is indebted to me in a large sum of money for dividends, etc., to which I am entitled under the terms of his will, and also all moneys that may be due and owing to me from his estate and my late son, Franklin I.' Hance, after the payment of the money legacies hereinbefore mentioned, I give and devise the same absolutely to my sister-in-law, Cassandra A. Kirk.” What is the meaning of this clause; or what did the testatrix intend to dispose of by it ? This is the question now before us. As the decision of the case necessarily turns upon the meaning of the words used by the testatrix when viewed in connection with all the circumstances that surrounded her, it may not be amiss to quote at the threshold an observation made by Lord Wensleydale, in Grey v. Pearson, 6 H. L. C. 108, to the effect “ when the decision js * * * * * UpQn the meaning of words in instruments which differ so much from each other, and when the proper construction is so varied by the peculiar circumstances of each case, it seldom happens that the words of one will are a sure guide for the construction of words resembling them in another.” To settled legal principles and established rules of construction ⁴²⁵ applicable to all written instruments-, rather than to mere verbal analogies or accidental resemblances of language, must resort be had in solving the question before us.

Now, it is a familiar and unvarying doctrine that the intention of the testator, as gathered from the four corners of the instrument, is to prevail, if there be apt words used to effectuate it, unless it contravenes some positive principle of law or be frustrated by some unbending rule of construction assigning an inflexible meaning to particular words. And to aid in showing, not what the testator meant apart from what his words express, but what the meaning of his words really is, the circumstances surrounding him at the time he executed his will, including an inquiry into the condition and the nature and extent of his property, may always be considered and weighed. For the purpose of ascertaining the. testator’s intention, as expressed in his words and not as an independent fact, “ you may,” as remarked by Lord Justice James, “ place yourself, so to speak, in his armchair, and consider the circumstances by which he was surrounded when he made his will, to assist you in arriving at his intention.” Boyes v. Cook, L. R. 14, Ch. D. 56.

You may, in a word, surround yourself with -the circumstances which surrounded him, and from that standpoint, when thus informed, you may, with more accuracy, interpret the words he has used, precisely as you may do in construing a written contract. Nash v. Towne, 5 Wall. 689 ; Shore v. Wilson, 9 Clark & Fin. 569. . Apart from the funds and money alluded to in the clause quoted from the will and apart from a few trifling and insignificant articles of household furniture disposed of by prior clauses of the same will, it is not shown that the testatrix possessed, at the time she made her will or at the date of her death, any other property whatever. The value of what she did have is approximately five thousand dollars.

That she did not design to die intestate as to any of her property is a presumption which the law raises, from the mere fact of a will having been made. State, use of Dittman ⁴²⁶ v. Robinson & Campbell, 57 Md. 500 . And when a will has been executed it is the settled policy of the Courts that they will struggle against a partial intestacy, especially when resort must be had to a forced and unnatural construction of the words used to produce such an intestacy. Booth v. Booth, 4 Ves. 403 ; Johnson v. Safe Deposit Co., 79 Md. 18 .

When the will was executed the testatrix was a childless widow and was entitled from her husband’s and her son’s estates to the several sums of money which will be alluded to in a moment; and these constituted the bulk of her estate. Her son had died some months before the date of her will, leaving three children, to whom he bequeathed his entire property, valued at over two hundred thousand dollars. These three children of her deceased son were her only descendants, and they were fully and amply provided for by their father’s will. Under her husband’s will she was entitled to a life-estate in one-third of his property and the residue of that property was given absolutely to the son.

Mrs. Kirk, the legatee claiming under Mrs. Hance’s will, was the latter’s sister-in-law, a widow herself, with seven children and in very destitute circumstances. Between the testatrix and this sister-in-law the most cordial and affectionate relations existed. Her grandchildren and Mrs. Kirk were nearest to her. The grandchildren were amply provided for; the sister-in-law was poor, and the testatrix’s whole estate was small and of comparatively trifling value.

The acquisition of the whole 'of it by the grandchildren would have been of slight consequence to them; the possession of it by the sister-in-law would be of great moment to her. This was all obviously known to the testatrix and was fully appreciated by her, and accordingly in her will she gave to the granddaughters some small articles of household furniture; then to other parties seventeen hundred dollars in pecuniary legacies, and then to Mrs. Kirk that which is described in the clause heretofore transcribed, and which in fact constituted the entire residuum of her property. ⁴²⁷ Seth S. Hance, the husband of the testatrix, died in May, 1884. By his will, to which allusion has been made, he appointed his son executor and his widow executrix of his estate. They assumed the duties pertaining to that office.

In his lifetime Seth S. Hance had been engaged in the manufacture of patent medicine, and after his death the business was continued by the son. During the course of the administration of Seth S. Hance’s estate the executors deposited at interest in several banks various sums belonging to the estate, and aggregating something over twenty-five thousand dollars. Upon these sums, at the date of Mrs. Hance’s will, the interest accrued amounted to over three thousand dollars, and to the one-third of this earned interest she was then entitled, as subsequently determined by a decree of Circuit Court No. 2 of Baltimore City, passed on November the eleventh, 1892, in a case then depending therein. Besides the aforegoing income there had been collected by the executors over five thousand dollars of other income from the estate of Seth S. Hance, but it had been improperly capitalized, and not distributed as interest in the account stated by the executors in the Orphans’ Court.

By the same decree of November the eleventh, 1892, Mrs. Hance was awarded the one-third of this sum. It was due to her from her husband’s estate at the date of her will. These two items make up the sum of twenty-nine hundred and thirty-three dollars and fifty-seven cents. By the same decree of November the eleventh she was directed to pay to herself, out of her husband’s estate’ the sum of sixteen hundred and ten dollars and thirty-eight cents for her share of the net commissions allowed to executors upon the assets of Seth S. Hance’s estate.

This sum was due to her when her will was executed. After the death of her son, and down to December the twenty-eighth, 1892; as surviving executrix, Mrs. Hance collected a large amount of income, her one-third of which was the sum of three thousand nine hundred dollars and fifty-six cents. This was a sum of money which became due and owing to her, ⁴²⁸ not in the sense of an indebtedness, but as an interest in her husband’s estate; but what proportion of it accrued to her after the date of her will and what proportion before, does not appear, and is not material. After Mrs. Hance’s death there came to the hands of her executor the s.um of seven hundred and eighty-six dollars and two cents, as her share of the proceeds of sale of the patent medicine business conducted by her son after the decease of her husband, and it is obviously this money to which she refers in her will as owing to her from her late son.

There are tw;o other items, one amounting to four hundred and ninety-one dollars and eighty-eight cents, which is not in controversy, and the second, amounting to forty-one dollars and seventy-seven cents, collected by Mrs. Hance’s executor from the executors of her son, it being one-third of the income derived from her husband’s estate, and which accrued up to the time of her death and long after the date of her will. The whole of the twenty-nine hundred and thirty-three dollars and fifty-seven cents of income, the whole of the sixteen hundred and ten dollars and thirty-eight cents of commissions, and part of the thirty-nine hundred dollars of income above referred to were undoubtedly the “ sums of money” in which, as she described it, “the estate of” 'her husbandwas indebted to her ’ “ for dividends, etc.,” and to which she “ was entitled under the terms of his will,” at the time she executed and published her own will. But, under the decree of November the eleventh, 1892, passed in a proceeding involving the construction of her husband’s will and affecting the distribution of his estate, she was ordered, as surviving executrix, to draw her check in her own favor individually for these sums of twenty-nine hundred and thirty-three dollars, and sixteen hundred and ten dollars, and by a supplementary order of January the thirteenth, 1893, she was authorized to retain for her own use the other sum of thirty-nine hundred dollars. Accordingly, on November the nineteenth, 1892, she deposited to her credit, in the National Marine Bank, two checks drawn on the National ⁴²⁹ Bank of Commerce, the one for sixteen hundred and ten dollars and thirty-eight cents, which stated on its face that it was for the one-half of the net commissions allowed, the other for twenty-nine hundred and thirty-three dollars and fifty-seven cents, which stated in its face that it was for the one-third of the income.

As credited to her on the books of the Marine Bank, the identity of these sums is preserved, for the entries expressly state that the one item is for one-half the commissions, and the other is for one-third of the income included in the administration account and collected from the bank deposits heretofore spoken of. On January the seventeenth, 1893, there is a deposit credited to her of thirty-nine hundred dollars and fifty-six cents, and this is clearly the same sum apportioned to her under the supplementary order of January the thirteenth, 1893. When these deposits were made, Mrs. Hance was indebted to the Marine Bank on overdrafts, and the payment of these latter, and the checking out of some other amounts, reduced the balance to her credit at the time of her death to about five thousand dollars. The learned Judge of the Circuit Court of Baltimore City, by a