Moale v. Cutting

Iuvimu, J., delivered the opinion of the Court. The decision of the question presented hy this appeal involves the construction of the will of William A. Moale, and for convenience sake in reference we have numbered the several clauses of the will from one to seventeen inclusive. By the first clause of the will the testator gives to his daughter, Judith Carter Cutting, a lot of ground on the west side of Charles street, by particular description, “for and during her life, and at her death, to her child, or children, and default of child or children surviving, to my daughter, Evelyn Byrd Burden, and my son, William A. Moale, Jr., should they survive, and if not to their children.” By the second clause he gives another lot, on the west side of Charles street, by particular designation, to his daughter, Evelyn Byrd Burden for life, “ and at her death, to her child or children surviving, and default of child or ■children surviving, then to my daughter, Judith Carter Cutting, and my son, William A. Moale, Jr., should they survive, and if not, then to their child or children.” By the third clause he gave his son, William A. Moale, Junior, his “late ground situated on the west side of Washington Place, No. 152,” specially describing the same, “ subject to the life estate of my beloved wife, on the dwelling or lot bought of Robert A. Lytle and wife, and subject to an annuity of two hundred and ten dollars, now owned by Samuel H. Taggart, on twenty-five feet of ground, being part of the lot of ground described as aforesaid, with all the improvements,” &c. This devise was without limitation.

By the fourth and fifth clauses he disposes of his wines and liquors. By the sixth clause he gives his pew “in St. Paul’s Church,” and his “ vault in St. Thomas’ Church Yard in Baltimore County,” to his son, William A. Moale, Jr. ⁵¹⁴ The seventh clause is in the following-language: “I bequeath to my son, William A. Moale, Junior, all my household furniture, plate and glass of every description,, in my dwelling, at the time of my death, for and during his life, and at his death to his child or children, and, default of child or children, then to my daughter Judith Carter Cutting, and Evelyn Byrd Burden, should they survive him, and if not, to their child or children; the rest and residue of my estate, real, personal and mixed, no matter how constituted, I bequeath one-third part of the same to my beloved daughter, Judith Carter Cutting, during her life, and at her death to her child or children surviving, and in default of child or children surviving, then to my daughter Evelyn Byrd Burden, and my son William A. Moale, Junior, should they survive, and if not, then to their child or children.” The eighth clause is as follows: “ I bequeath to my beloved daughter, Evelyn Byrd Burden, one-third part of' the said estate, for and during her life, and at her death, to her child or children, surviving, and default of child or children surviving, to my daughter, Judith Carter Cutting, and my son, William A. Moale, Junior, should they survive, and if not then to their child or children.” By the ninth clause he bequeaths the remaining third of his estate to his son, William A. Moale, for life, and then to his surviving child or children, and in default of' such child or children, with remainder over to his sisters, and their children. The tenth clause reads thus: “ I charge my estate with an annuity of five thousand dollars, to be paid to my beloved wife, during life, out of the income of the estate after deducting taxes and expenses incident to the management of the same, in lieu of her dower in my real and personal estate.” The eleventh clause says: “ I further charge my estate with an annuity of one thousand dollars to be paid during; ⁵¹⁵ the life-time of his mother, to my son, William A. Moale, Junior, in lieu of commissions, and for the management of the estate during the life-time of my beloved wife.” The twelfth clause charges his son to keep the vault in repair at the expense of the estate; and the thirteenth appoints his son, William A. Moale, executor, and requests his sons-in-law to be the sureties on his bond. 14th. “ I direct that the deed from my daughters, Judith Carter Cutting, and Evelyn Byrd Burden, for their interest in the dwelling and lot, No. 152 Washington Place, shall be placed on record immediately after my death, they having received a full equivalent in the two lots on north Charles street.” 15th. “I authorize and empower my executor to lease any part or all of my estate, with the consent of my daughters, at its fair value, and where it is absolutely necessary, to sell the same, or where there is a covenant in the lease to redeem the lot of ground leased, provided, only, that the proceeds of such sale, or the lot of ground so redeemed, shall be invested in Government, State, or City stocks, or permanent ground rents of undoubted security, subject to the restrictive terms and tenor of this will, and the descent specified in the same for the benefit of the heirs aforesaid.” The sixteenth clause directs inscriptions on the tablets in his vault for his mother, brother and sons, and at the expense of his estate, and the seventeenth, and last clause, is as follows: “ I request my son to give his mother the free and unrestricted use of the furniture, plate, glass, &c, &c., during her life, or so long as she shall keep house.” This will was dated the 20th of November, 1877, and was witnessed on the 21st of November, 1877. On the 9th of August, 1880, the following codicil was made : “ Since making the foregoing will I have given to my son, William A. Moale, thirty thousand dollars in Virginia coupon bonds, and Peoples and Consumers’ Gas ⁵¹⁶ stock, which sum of thirty thousand dollars I direct shall he deducted from the said William A. Moale’s one-third share of my estate. “The furniture, silver, wines, &c., bequeathed to William A. Moale during his life, and his third share of my estate agreeably to the foregoing will, I give him absolutely and without any entail.” The bill, which is filed by the executor as such, and in his own right as a devisee, together with his wife, alleges the will and codicil to have been duly executed and published, and alleges the death of the testator.

It sets out the various provisions of the will, and alleges his qualification as executor, and files a copy of the inventory of the estate, and a schedule of the ground rents, and unimproved properties, of which the bill charges there is a large amount. It alleges that the personal estate and effects of the-testator are more than sufficient to pay all debts, and that he is desirous of applying the same to the payment of annuities. It charges that the widow has elected to abide by the will and take the annuity left her, and prays the direction and assistance of the Court in raising tlie annuity to her and to him, and to provide for the same so as to exonerate the residue of the estate therefrom, ^he bill sets up the right of the executor to sell when absolutely necessary, and avers it is necessary to sell a certain portion of the estate. It then describes a parcel of land on Charles street, which the bill alleges it is absolutely necessary to sell, but suggests that doubts have arisen as to his power under the will, and asks the Court for a decree for such sale.

It avers this parcel lies in a fashionable part of Baltimore, and is very desirable, and that he has had most eligible offers for it if he can give a good title to it; but charges that the defendants, his sisters, deny his power to sell under the will, and also deny that it is absolutely necsesary to sell it, and -insist it can be advantageously divided. The bill charges this parcel cannot be advantageously ⁵¹⁷ divided without loss or injury to the parties. As to the residue of the real estate .the hill charges that a partition can he made and is desirable, and asks for it. It alleges that Mrs. Cutting and Mrs. Burden, are only tenants for life, and that their children, presumptively entitled, are infants under the age of twenty-one years, and such partition cannot he had without the aid of a Court of equity.

He asks the direction of the Court with respect to the deduction of the thirty thousand dollars given him and hy the codicil directed tó he deducted from his share of the residue. The hill asks the construction of the Court with respect to his trust and powers under it, and assistance and direction in executing the same. The widow, Mrs. Cutting, Mrs. Burden and their children, with their husbands, are made defendants, being all the parties in being who are interested in the matter. Mrs. Moale, hy her answer, admits that she has elected to abide by the will, and submits that she is entitled to have the annuity to her, accounting from her husband's death, secured to her as a primary charge on the estate; she says she is advised that a sufficient amount of the productive estate should be set apart to raise her annuity, and submits to any order the Court may pass which will secure the prompt payment of her annuity.

The infant defendants answer ignorance, and submit their rights to the protection of the Court, hut their parents, Robert L. Cutting and wife, and J. Townsend Burden and wife answer, and without admitting or denying the execution and publication of the alleged will and codicil, leave the complainants to the proof of the same. They admit that the papers professing to he will and codicil, make the several bequests mentioned in the bill, and created the charges or annuities mentioned in the bill; they admit the real and personal estates, other than such as are specifically devised to he of considerable value ; and that a- large portion of the real estate is unimproved; but ⁵¹⁸ they deny it is not divisible, but expressly charge that it is divisible without loss or injury to any of the parties, and that such division is especially desirable; and that it is indispensable to the interests of Mrs. Cutting and Mrs. Burden. They deny that the complainant is authorized or empowered by the will to sell any of the estate, “ to meet any exigency which he may conceive to exist; ” and they deny that any “ absolute necessity ” does exist for such sale. They admit that they have not consented to the complainant’s leasing, because they think it will delay and embarrass the division of the residue of the estate.

They say that ’William A. Moale is not entitled to the assistance of the Court in respect to raising the annuities charged, or that he has any duty in respect to the same, except so far as his part of the estate is concerned, because the annuities are a general charge on the estate. For the purposes of this decision, further allusion to the averments of the bill and answer, we think needless. The will and codicil have been regularly proved by all the witnesses to them respectively, and the certificate of such probate, in the usual form, is attached to- the copy submitted in evidence, so that prima facie there should be no controversy over the validity of each. An'd although there is no direct issue made in the cause, the will and codicil simply not having been admitted in the answer as'valid testamentary papers, and the complainants left to the regular proof of the same; and although it is not ordinarily the province of a chancery Court to revise the probate of wills, yet, lest doubts may arise respecting their validity, by reason of the language of the answers, and the objections suggested in argument, which doubts, we think, have no real foundation upon which to rest, we will briefly advert to the proofs about the same.

The witnesses to the will are Otto Sutro, P. L. Perkins, and Henry McCaffrey. Below their names appear the words, “witnessed and signed in the presence of each ⁵¹⁹ other, Nov. 27, 1877.” Immediately above their names and after the word “ witness,” certain words are designated as having been first interlined. The fact that the witnesses have signed above instead of below the words designating attestation, cannot affect the validity of the attestation, when it is so clearly manifest that they signed for the purpose of attestation. At the probate each witness to the will and codicil swore that