Murray v. Willett

Gilbert, C. J., delivered the opinion of the Court. A fundamental ingrained principle of the testamentary law of Maryland is that when a will contains a residuary clause, the courts will employ every intendment against general or partial intestacy. Crawford v. Crawford, 266 Md. 711 , 296 A. 2d 388 (1972); McElroy v. Mercantile-Safe Deposit and Trust Co., 229 Md. 276 , 182 A. 2d 775 (1962); Ball v. Townsend, 145 Md. 589 , 125 A. 758 (1924); Holmes v. Mackenzie, 118 Md. 210 , 84 A. 340 (1912); Lavender v. Rosenheim, 110 Md. 150 , 72 A. 669 (1909); Dulany v. Middleton, 72 Md. 67 , 19 A. 146 (1890); Barnum v. Barnum, 42 Md. 251 (1875). In this appeal from a decree of the Circuit Court for Montgomery County (Frosh, J.), construing the Last Will and Testament of Edward A. Murray, the appellants, Paul Murray et al., 1 recognize the cardinal rule but assert its non-application to this particular case.

When the testator made his will on August 30, 1964, by completing a printed form, his four brothers were all dead. One died in infancy, one in his teens, and the other two, Thomas F. Murray and Stephen J. Murray, Sr., the fathers of the appellants, passed away in 1957 and 1941, ⁵⁵³ respectively. At the time of the execution of his will, the testator had two living sisters, Mary M. Willett, the mother of the testator’s personal representative, the appellee in this case, and Isabel M. Sweeney, the mother of Edward A. Sweeney. After a formal recital and the revocation of “all other and former Wills,” the testator provided: “First, after my lawful debts are paid, I give devise and bequeath in equal shares all of my estate of whatsoever nature and wherever situated to my belove [sic] sister, Isabel and Mary.

In the event of the prior decease of Isabel, her share is to go to Mary. In the event of the prior decease Mary, her share isto [sic] go Iasber [sic].” Mary died in June 1971, leaving Francis M. Willett, Jr., as her only heir. Isabel died in 1973, leaving Edward Sweeney as her only heir. Murray is, of course, survived also by other nephews and nieces who constitute the appellants.

Following the filing of the “Bill of Complaint for the Construction of Will,” two groups of heirs answered. Francis Willett, Jr., in his individual capacity, as distinguished from his being the Personal Representative of Edward Murray, and Sweeney asserted that they should divide the estate, or, in the alternative, it should all devolve upon Sweeney. The other group, consisting of the appellants, contended that the Will is so vague and ambiguous that it is inoperative, and, therefore, the estate should pass by way of distribution under the intestacy law. Md. Est. & Trusts Code Ann. § 3-104 (b).

We agree with Judge Frosh that the clause of the will upon which the appellants focus their attack is clearly a residuary clause, defined in Black’s Law Dictionary 1473 (4th ed. 1968) as that “[cjlause in will by which that part of property is disposed of which remains after satisfying bequests and devises.” The particular clause in the case sub judice is lacking any unmistakable verbiage such as “all the rest and residue of my estate” or “the residue of my estate” or “the balance of my estate,” but there is no requirement ⁵⁵⁴ that those stylistic forms be utilized. In this State, “[n]o particular form of expression is required to constitute a residuary clause, it being sufficient if the intent to dispose of the residue appears.” McElroy v. Mercantile-Safe Deposit and Trust Co., supra at 284, 182 A. 2d at 779 . The difficulty with the clause in the instant case is occasioned by the phrase “of the prior decease.” Those words give rise to two distinct inferences. The phrase could be argued to mean, first, that each sister must survive the other in order to take under the will, or, second, that each sister must survive the testator before she may take under the will.

Had the testator been cognizant of and heeded the message in the “Minutes and Advices of the Yearly Meeting of Friends Held in London” (1802), that “[fjriends are earnestly recommended to employ persons skilful in law, and of good repute, to make their wills; as great inconvenience and loss, and sometimes the ruin of families, have happened through the unskilfulness of some who have taken upon them [selves] to make wills .. .”, it is likely that this litigation would never have arisen.