Lyon v. Safe Deposit & Trust Co.

Boyd, C. J., delivered the opinion of the Court. The Safe Deposit and Trust Company of Baltimore, executor of the will of James Crawford Lyon, filed a bill against the next of kin, and heirs of the testator praying: (1) That a decree be passed construing the will and determining who are the parties entitled to receive the estate; (2) that jurisdiction over the settlement of the estate be assumed by the Court below, and that the settlement be completed by plaintiff under the supervision and direction of that Court. All of the defendants answered and from a decree passed appeals were taken by William A. Lyon, by Grace, Elizabeth L. and Mary A. Lyon, and by Mr. and Mrs. May, and Earnest Crawford May, but that of the Mays has been dismissed by them. The entire will, with the exception of the formal beginning and ending and the appointment of the executor, is as follows: “(1) After the payment of all my just debts and funeral expenses, I give, devise and bequeath my estate as follows: To my brother, William A. Lyon, $1,-000.00/100; to my sisters Elizabeth L. Lyon, Mary A. Lyon and Grace Lyon, three-fourths of the income, share and share alike, and to my mother Elizabeth ⁵¹⁷ Lyon, one-fourth of the income for life, and at her death to my sister Virginia May, at present a resident of Pasadena, Cal., after her death to her heirs.

If she should die without issue, the one-fourth interest devised to her to go to my surviving sisters, share and share alike. (2) The income is to he derived from the investment by my executor, the Safe Deposit and Trust Co. of Baltimore, of my money deposited with the Maryland Trust Company — as shown by my account there-— the securities belonging to me in a box in the vault of my firm, Lyon Bros. & Co., and boxes in the vault of the Maryland Trust Co., my interest in the firm of Lyon Bros. & Co., as may appear from the books; the rental of my tract of land at Herring Bun, Baltimore County, Md., containing twenty-four acres, and the proceeds of my life insurance policies, which aggregate thirty-two thousand five hundred dollars, in the Mutual Life Insurance Co. of Hew York, Provident Life and Trust Co., Philadelphia, and Maryland Life Ins. Co., Baltimore. (3) My securities in the boxes referred to exceed one hundred thousand dollars in value; my interest in the firm of Lyon Bros. & Co., July 1st, 1902, was by the balance sheet shown to be $48,715.76, and the land at Herring Bun has been appraised at six thousand dollars.

(4) I do not leave my brother more than one thousand dollars, which is to be paid to him in- cash in the settlement of my interest in the firm of Lyon Bros. & Co. (5) My sisters are free to devise their interest in the income of the property disposed of under this will as they see fit.” Mrs. Elizabeth Lyon, the mother of the testator, predeceased him. Mrs. May has one child living, Earnest Crawford May, who is of age. Although not so appearing in the will we have for convenience of reference numbered the ⁵¹⁸ paragraphs (1) to (5), inclusive. The will was executed in September, 1902, and the testator died on the 30th of January, 1912, without having married, and leaving his brother and four sisters as his next of kin and heirs.

An inventory of the stocks and bonds, cash in the house, and in bank, and several trust companies, amounting to $167,366.94”was filed in the Orphans’ Court of Baltimore City, and a list of debts due the deceased amounting to $196,909.70 was filed with the bill. The latter included $69,359.70 capital in the firm of Lyon Bros. & Co., per statement of December 31st, 1911. There was also an inventory of the real estate appraised at $6,000.00, filed with the Orphans’ Court. The money deposited with the Maryland Trust Company at his death was $1,003.12, the securities in the vault of Lyon Bros. & Co., exclusive of cheeks hereinafter referred to, amounted to $14,-247.00, those in three boxes in the vault of the Maryland Trust Co. $85,054.00, his interest in the firm $69,359.70, the land $6,000.00, and insurance policies $20,000.00, being a total of $195,663.82.

The assets not included in the above classifications amounted to $185,599.92. These are the figures given in the record and although there may be some errors, for our purposes they are sufficiently accurate. The record shows that the insurance policies in the Mutual Life and Maryland Life Companies were paid to deceased in his lifetime, and the amount mentioned above was realized from his policies in the Provident Life & Trust Co. The above figures when taken in connection" with'paragraph (2) will at once suggest the foundation for the controversy. The Court below decreed that by the true construction of the will William A. Lyon was entitled to. a legacy of $1,000.00 and the three unmarried sisters were each entitled to a life estate (subject to the duties of the executor as to the holding and investing as therein stated) in one-fourth of the entire estate, after payment of debts, expenses and the legacy, with power to each to devise and bequeath by will the interest in remainder after her life estate in the share she takes for life, and in the event of any of them dying ⁵¹⁹ without leaving a valid will the testator died intestate as to the remainder in any such share, and it will pass to all of the sisters and the brother; that as to the remaining fourth (the mother being dead) Virginia May is entitled to a life estate (subject to the duties of the executor, etc.) and that upon her death, if she dies without leaving a child or descendant, the remainder in such share will upon her death vest absolutely in such of her three sisters as may then be living, or if all die before her then to those entitled by reason of partial intestacy, but if she leaves surviving her a child or descendent the said share will vest in such child or deseendent — the said Virginia not having power to will her share.

Directions are given the executor and some terms of the decree, we have not set out as they are not particularly involved in this controversy. The will was written in the handwriting of the testator, excepting the formal beginning and ending which were printed — a blank form having been used. It is dated the 16th day of September, 1902. At the time of his death the testator had on deposit in the Union Trust Company of Maryland $44,085.81, in the First National Bank $4,143.91, in the Continental Trust Company $14,621.11, and in the Baltimore Trust Company $11,-252.08, making $74,102.91.

There were also checks payable to the order of the deceased and not cashed by him amounting to $10,232.10, and coupons due in his life time and not cashed by him amounting to $755.00, besides $10.91 found on his person. First. We will first determine what property the will disposes of. Paragraph 1 states: “After the payment of all my just debts and funeral expenses I give, devise and bequeath my estate as follows.” It is argued on behalf of the Misses Lyon that that indicates an intention of the testator to dispose of all of his estate.

That of itself, without any qualification in other parts of the will, might be conceded to be indicative of such intention, but it is qualified by subsequent provisions in the will which go on to say: “To my brother William A. Lyon, $1,000.00; to my sisters * * * ⁵²⁰ three-fourths of the income share and share alike and to my mother Elizabeth Lyon one-fourth of the income for life, and .at her death to my sister Virginia May,” etc. Then after making some provisions for the fourth of the income after Mrs. May’s death, the testator went on to say: “The income is to be derived from the investment by my executor” of the money, securities, etc., set out in paragraph (2). After stating in paragraph (3) the value of his “securities in the boxes referred to,” his interest in the firm July 1st, 1902, which was the last six months period prior to the making of his will, and of the land at Herring Hun, and saying in paragraph (4) that he did not leave his brother more than $1,000.00, which was to be paid to him in the settlement of his interest in the firm, he added paragraph (5) : “My sisters are free to devise their interests in the income of the property disposed of under this will as they see fit.” Whatever meaning must be given to the expression “the income” in determining whether the sisters took an absolute estate or simply the revenue derived from the investment of it, as we will later do, the property out of which the revenue is to be derived, or which the sisters are to take absolutely, is definately and specifically mentioned in paragraph (2). If in paragraph (1) the testator had said: “To my sisters * * * three-fourths of the income, and to my mother one-fourth of the income for life * * * derived from the investment by my executor of my money deposited with the Maryland Trust Company,” etc., etc., — using the precise language of the balance of paragraph (2)- — could it be doubted that he had limited the devise and bequest to them to the money, securities and property therein mentioned? And yet is not that what he in effect did?

By paragraph (1) he left “the income” as therein stated and by paragraph (2) he directed from what property “the income” was to be derived. He was undoubtedly speaking of the same “income” in both paragraphs. Suppose immediately following the bequest to his brother the will had read: “To my sisters Elizabeth, Mary A. and Grace Lyon three-fourths, share and share ⁵²¹ alike, and to my mother one-fourth for life, and at her death to my sister, Virginia May, and after her death to her heirs * * * of my money deposited with the Maryland Trust Company, as shown by my account there,” and then continued just as paragraph (2) reads, could it be said that he left anything not included in the description thus specifically given ? We can not see how it could he seriously so contended, and yet the description of the property is just as specific, — just as inclusive and exclusive — in the will as he wrote it, as it would have been in the case suggested.

The Misses Lyon rely on the beginning of paragraph (1) as sufficient to include all of the testator’s estate, but the •difficulty is that it is limited by the subsequent provisions. In Chamberlain v. Owings, 30 Md. 447 , cited in their brief, the Court said: “When the intention of the testator does not clearly appear from the words used in a clause of a will which is to he construed, then a resort may be had to the introductory clause, if there be one, to explain their meaning, and if, by it is manifested an intention upon the part of the testator to dispose of the whole of his estate, the words in the clause to be construed, which otherwise would he of doubtful meaning, and consequently not sufficient to pass the fee, shall be taken in that sense which -accords with the intention, expressed in the introductory clause, and will pass the inheritance and give effect to all parts of the will.” That is undoubtedly correct, although the rule has perhaps most frequently been applied to such cases as Chamberlain v. Owings where the question was whether the devisee took a life estate or fee in the property devised. In Beall v. Holmes, 6 H. & J. 205 , the case principally relied on in Chamberlain v. Owings, Chief Judge Buchanaw reviewed many cases in his usual thorough and able manner, but concluded that that introductory clause which was “As touching my worldlv estate wherewith it has pleased God to bless me in this life, I give, devise and dispose of in the following form and manner, vizdid not authorize the Court to hold that the estate ⁵²² there under consideration was in fee and held the devisee took a life interest only. In Bourke v. Boone, 94 Md. 472 , we had occasion to pass on several questions which have been raised in this case.

In reference to the introductory clause in that will, which was, “What property it hath pleased God to bless me with in this life, I give and bequeath in manner and form following, to wit,” Judge Page said: “But it is well settled upon authority, and in reason, that it is only when the intention of the testator does not clearly appear from the words used in a clause of the will to be construed, that resort may be had to the introductory clause. Chamberlain v. Owings, 30 Md. 447 . And even if these words would indicate an intention not to die intestate, yet they would be ineffective to pass the estate and thereby disinherit the heir, unless the will plainly, or by necessary implication, directed to whom the. estate should go.” In that case the clause of the will in controversy was: “I give and bequeath to my brother, John Linstid, all of the land belonging to me; being my part which I obtained from my father, and adjoining the lands of Thomas Robinson’s heirs and James Stalling’s heirs, to have and to hold so long as he may live, and at his death, then the said land I give and bequeath to my niece, Alice Y. Boone, and her heirs forever.” The will of the testatrix was made in 1875 and the same day her brother, John Linstid, made a will by which he left her all the land on which he lived and some personal property. He died in 1880, and the testatrix died in 1900, having in addition to the property she had at the time of the execution of her will the real estate'left her by her brother.

She left as her heirs at law and next of kin four nephews and one niece — the latter being the Alice Y. Boone, mentioned in her will. The question was whether she died intestate as to the tract of land which she took under the will of her brother, or whether it passed to Alice V. Boone. The Court, after quoting from Rizer v. Perry, 58 Md. 121 , as to the effect of the statute making a will speak as of the time of the death of the testator, and stating that it said ⁵²³ the effect of the decision in Rea v. Twilley, 35 Md. 409 , “is to reassert the presumption in favor of the heir, and to restate the doctrine, that the intention is the main object of search in the construction of wills,” went on to say: “We take it to be clear (notwithstanding anything in the statute) that what we must ascertain in this case, as in all others from the construction of wills, is to learn what the testator intended ; such intention to be collected from her own words; and if we can not find she has given the estate to some one else, it must go to her heirs. Zimmerman v. Hafer, 81 Md. 357 .” And the Court concluded by saying: “Hence we think it clear from the terms of the will, when read in the light of the circumstances under which it was executed, or without such aid, that the testatrix intended to dispose of only such property as she specifically described, and that therefore the real estate devised to her by John Linstid does not pass under the will, and that she died intestate thereof.” There was in that case an introductory clause certainly quite as strong as the one in this will, and the devise was “all the land belonging to me” which under the statute would ordinarily have included that belonging to her at the time of her death, yet inasmuch as she followed that up by saying “being my part which I obtained from my father,” etc., the Court said: “We can not regard this as a general devise or equivalent thereto, for she proceeds to declare specifically and particularly what it is she intends shall pass.” In this case the testator only said: “To my sisters * * * three-fourths of the income,” and then in the next paragraph, as soon as he provided for 'the other fourth of the income, proceeded to say specifically from what the income was to be derived.

There was more reason for giving the introductory clause in Bourke v. Boone the effect contended for than there is in -this case. The only provision in the will that can be said to place the Misses Lyon in a stronger position than Miss Boone was is the fact that the testator said he did not leave his brother more than $1,000.00, but that may be answered in several ways. In the first place, the next para ⁵²⁴ graph (5), is “My sisters are free to devise their interest in the income of the property disposed of under this will as they see fit.” That is very sugg’estive of a belief on the part of the testator that at his death he might have property which would not he disposed of under this will. Then in Zimmerman v. Hafer, 81 Md. 353 , the testator, after giving as reasons for leaving all of his property to the devisee, that he had married his niece, that he had been living with them for many years, and had a high regard and affection for them, added: “and desire that they shall enjoy the same to the exclusion of my other relatives.” Judge McSherry said on page 357: “Nor is the appellant’s contention strengthened by the expressed desire that the testator’s other relatives should be excluded from participating in the distribution of his estate.

And this is so, because, as said by Lord Mansfield in Denn v. Gaskin, 2 Cowper, 657, Though the intention to disinherit the heir be ever so apparent, he must, of course, inherit, unless the estate is given to somebody else; and the reason is that the law provides how a man’s estate at his death shall go, unless he, by his will, plainly directs that it shall be disposed of differently.’ See Coffman v. Heatnole, 2 L. R. A. 848 and notes. An explicit and unequivocal declaration, therefore, that the heir shall not inherit will be wholly ineffectual to defeat his right, unless the estate be given by the will to some one else.” The case of Cole v. Ensor, 3 Md. 446 , is also very applicable. The testatrix gave to her grandson “my negro girl Beck, together with the rest and residue of my estate, consisting of household furniture, cattle, horses, farming utensils, all and singular; of whatever kind, named or intended to be named,” etc. At the time of her death she owned ten negro slaves, which were not particularly mentioned or referred to in the will. The Oourt said, if the clause “had terminated with the expression The rest and residue of my estate’ it might doubtless have passed all the property owned by the testatrix at the time of her death, and which had not been specifically devised, but these words are qualified, and restricted by the ⁵²⁵ words immediately succeeding, namely, ‘consisting- of.’ The effect of these last named words is to indicate that