Olivet v. Whitworth

Boyd, J., delivered the opinion of the Court. From the record in this case we find that William Charles Whitworth and his wife, Sophia Matilda Whitworth, died in September, 1873, in London, England, leaving surviving ²⁷⁵ them five children. The youngest of these, Sophia Matilda, who was about two years of age when her parents died, was taken charge of by an uncle, who shortly after placed her in an orphan asylum in London. Not long afterwards Mrs. Ann P. Pleasants, an American lady who was traveling abroad, adopted her.

She assumed the name of Aimée Page'Pleasants and lived with Mrs. Pleasants until the death of the latter, who left her a very handsome estate by her last will and testament, in which she appointed George H. Fisher and Ludovic C. Cleeman, of Philadelphia, Pa., executors and trustees of her estate and guardian of this child,, who was then about sixteen years of age. Mr. Cleeman brought her to this country where she resided for several' years, and then returned to Geneva, Switzerland, where she subsequently engaged herself to be married to Mr. Olivet. They were married in June, 1892, in the city of Washington, D. C. On the 8th day of that month Miss Pleasants executed, in the city of Baltimore, a deed of trust to the Safe Deposit and Trust Company of Baltimore, with the knowledge and approbation of Mr. Olivet (as was evidenced by his uniting in the instrument), by which she directed fifty thousand dollars of her property, which was still held by Mr. Cleeman, as guardian and trustee under the will ot Mrs. Pleasants, to be paid over and delivered to the Safe Deposit and Trust Company of Baltimore upon her arrival at the age of twenty-one years, and as soon as it was freed from the trust created by the will of Mrs. Pleasants, to be held by said company in trust for her during her life, and, after providing for her receipt of the income from the property so held in trust and for changes of the investments, etc., made the following provision: “And from and after the death of the said Aimée Page Pleasants, to convey, assign and deliver the same to such person or persons as the said Aimée may by last will and testament, or by instrument in the nature of a will executed in the presence of two witnesses, limit, nominate and appoint her coverture, notwithstanding. And finally, in case she shall die without execut ²⁷⁶ ing a will or instrument of writing in the nature of a will as aforesaid, to convey and assign the same to the heirs at law and next of kin of the said Aimeé Page Pleasants, ■exclusive of any marital rights.” On the 9th day of January, 1893, she made a holographic will at Geneva, by which she made her husband her sole legatee of everything, in case she should die without posterity, and on the 12th day of February, 1893, she made a holographic codicil by which she confirmed her will, and ■after making pecuniary legacies amounting to twenty-five thousand francs, stated: “ I desire that all my fortune, as well — that placed in the Safe Deposit and Trust Company, Baltimore, Maryland, U. S. of America, as the rest thereof, be handed over at my death to my husband, Alfred Olivet, my sole legatee.” It is satisfactorily proven that the will and codicil were made according to the forms required by the laws of the places where they were executed, and therefore under section 319 of Art. 93 of the Code of Public General Laws of this State, they are valid and sufficient to pass the title to her property in the hands of the Safe Deposit and Trust Company of Baltimore — provided the power reserved in the deed of trust above quoted, was legally executed.

The question, therefore, to be determined by us is, whether that power required her will to be “ executed in the presence of two witnesses” — the appellees, as her next of kin, contending that it did, whilst the appellant claims that this clause ■only applied to an “ instrument in the nature of a will.” In considering this question it is proper to constantly Bear in mind the fact that the power of disposition was not given by a third person, but was reserved in the deed of trust by the testatrix herself. Had she not executed the deed, her right to dispose of the property in question by this will and codicil was absolute and free from doubt. The question presented is so narrow that, if punctuation be entirely disregarded, the language used- is capable of being interpreted to meet the views of either side. As ²⁷⁷ was well said in argument, if it be read aloud, different meanings may be given it by the tone of the voice or the accentuation of the several clauses.

If the term “or by instrument in the nature of a will ” be used parenthetically, then the phrase “ executed in the presence of two witnesses,” would apply to “ last will and testament ” as well as to “instrument in the nature of a will,” whilst if we pause after reading “last will and testament” and then read “ or by instrumeut in the nature of a will executed in the presence of two witnesses,” as one unbroken sentence, a proper grammatical construction would confine the limitation to the “ instrument in the nature of a will.” The expressions used being so nearly poised as to have their meaning thus affected, it is manifestly proper to so construe them as to give effect to the will, rather than to make it nugatory so far as this property is concerned, if that can be done without running counter to their natural meaning, their grammatical construction, or to controlling legal authorities. That punctuation alone is not necessarily conclusive must be conceded, as it is well known that draughtsmen of legal instruments frequently ignore all the rules on that subject, to which grammarians and rhetoricians attach great importance. The most learned and accomplished lawyers oftentimes pay but little attention to it in their preparation of legal documents. This may be because the copyist or the writer to whom the paper is dictated has not followed the directions or intonations of the author, or it may be because it is known that the cases are few that are determined by punctuation, or for other reasons.

But when there is an ambiguity which may be wholly or partially solved by it, provided the punctuation itself has not created the ambiguity, it can be considered (Weatherly v. Mister, 39 Md. 629 ; Black v. Herring, 79 Md. 149 ), but it can never be permitted to overturn what seems the plain meaning of the whole instrument. If we make any use of it in this case, it must inure to the a-dvantage of the appellant. There is' in the original deed, which was brought before us by agree ²⁷⁸ ment, a comma after “ last will and testament,” and also after the word “witnesses,” so that if we follow the punctuation the phrase “ executed in the presence of two witnesses,” does not properly apply to “ last will and testament.” Although punctuation alone is not a safe standard by which to interpret a writing, yet if there be an ambiguity it may shed light on the' meaning of the language to be interpreted, and in this case we must ignore it if we adopt the construction contended for on behalf of the appellees. If Miss Pleasants intended to reserve the right to dispose of this property either by a duly executed will, or by some instrument in the nature of a will, provided she executed the latter in the presence of two witnesses, the draughtsmen of the deed of trust used language that was so punctuated as to be capable of that meaning.

Therefore, without relying on the position of these commas as at all conclusive, in our search for the intention of the donor of this power, we can at least borrow from them such light as they are permitted under the law to give. In determining whether the mode of execution prescribed by the deed is applicable to “ last will and testament” as well as to an “ instrument in the nature of a will,” we will first consider those terms for the purpose of ascertaining whether they are synonymous or practically the same. To say that they are of “the same nature,” as argued by.the appellees, is but to do little more than to repeat the language used in the power, as one is a “ will ” and the other an instrument “ in the nature of a will." But are they such equivalent terms as to make the mode prescribed for executing the one necessailry applicable to the other ? It is true that both are testamentary papers — taking effect only after the death of the maker — and there are undoubtedly cases in which instruments have been called wills and yet have not had testamentary forms.

For example, in Carey v. Dennis, 13 Md. 1 , bonds, not intended to constitute any binding obligation on the obligor, or to confer any right on the obligees, or to have any effect until after the death of ²⁷⁹ the obligor, were held, not to be evidences of debt, but in the nature of testamentary papers. The Court quoted from Justice Buller, in Habergham v. Vincent, 2 Ves. Jr. 231; that “The cases have established that an instrument in any form, whether a deed-poll, or indenture, if the object of this purpose is not to take place till after the death of the person making it, shall operate as a will.” But a “ will ” must be made by one having capacity to make it, and must be executed in one of the modes fixed by law, and many papers that were prior to 1884 held in this State to be wills for the purpose of passing personal property, would not now be valid, as the Act of the Assembly passed in that year required all wills executed in this State to be attested and subscribed in the presence of the testator by two or more credible witnesses. Whilst an “ instrument in the nature of a will,” if executed in pursuance of a valid power, may be made by one not having testamentary capacity and in a different form from that prescribed by the laws governing the execution of wills, and yet have the effect of a will.

The two instruments may accomplish the same result, but may not be in the same form. It is the mode of execution and not the effect of these instruments we are now considering. In Schley v. McCeney, 36 Md. 275 , Judge Alvey quoted from Chance on Powers, where it is said: “ Where a party directs a power to be executed by 'will’ simply, it may be a reasonable presumption that he means such a will as would be requisite to dispose of the like species of prop'erty; but when he prescribes certain formalties, the presumption ceases; it seems fair then to conclude that all which he means, is a testamentary act, attended with the formalities prescribed by himself.” In that case the distinction was clearly recognized when the Court said: “ Here there are two modes prescribed, the one to be by will duly executed according to law, which fairly means the general law, regulating the execution of wills, the disability of coverture of the donee being in this respect dispensed with; the other ²⁸⁰ by a testamentary paper in the nature of a will, to be executed in the presence of two witnesses, without anything more.” In Southby v. Stonehouse, 2 Ves. Sr. 610, Lord Chancellor Hardwicke said that a writing in the nature of a will, by a feme covert, in virtue of the power reserved to her, in two deeds of settlement, was not a proper will, although it had the effect of a will to three intents; the words have the same liberal construction, it is ambulatory until the testator’s death whom appointee must survive, and can only take effect from the testator’s death.

See also 2 Perry on Trusts, sec. 511 When a donor gives the donee power to dispose of property by will, there is no necessity to prescribe the ceremonies and formalities by which it is to be executed, for the law has already done that, but when the power is to be exercised by an "instrument in the nature of a will,” then he should determine the mode of its execution, and having done so, it must be complied with. In this case if the grantor had only reserved the power of disposing of this property by her'“ last will and testament,” the formalities by which that could be done were settled by law. If she had then executed her will in this State it was required to be attested and subscribed in her presence by two or more credible witnesses, or else, in the language of the statute, " be utterly void and of none effect.” Or she could, under section 319 of Art. 93 of our Code, execute it out of the State “ according to the forms required by the law of the place where the same was made, or by the law of the place where such person was residing when the same was made.” But in order to dispose of the property by some instrument that was to take effect after her death, though not technically a will, if she saw , proper to do so she reserved the additional power of disposition by “ an instrument in the nature of a will.” There is, then, a manifest distinction between a " will ” and an "instrument in the nature of a will,” especially as to the manner in which they may be executed, although the latter ²⁸¹ may operate as a will, and to avoid an attempted execution of a power being declared invalid, by reason of a defective execution of a will, it may be a wise precaution for the donor, who desires to give the donee power of disposition of the property, to take effect at the latter’s death, to supplement the power of disposition by “will” by “an instrument in the nature of a will.” It is perfectly certain that the two instruments