Osborne v. McTavish

Bowie, J., delivered the opinion of the Court. The Marchioness of Wellesley, by her last will and testament duly executed to pass real estate, dated the 24-th of September, 1852, and admitted to probate in the Orphans' Court of Baltimore City, in 1854, among other clauses therein contained, devised and bequeathed, as follows: “I give and devise all my farms and other land, situate in Frederick County, in the State of Maryland, to General George Stewart, his brother, Doctor Richard Stewart, and to my nephew, Charles Carroll McTavish, in trust, to rent from year to year, to sue for and receive the rents thereof, and to divide them annually, or oftener, if possible, in equal portions between my surviving sisters. After the death of all my sisters, I leave the whole of the said lands and farms to my nephew, Charles Carroll McTavish, and his lawful issue, except the portion I intend to give, which is close to the Catholic chapel, which is built near my land. I also give all my houses and lots, and ground rents in the City of Baltimore, except the house in Mount Yernon Place, to General George Stewart, his brother, Richard Stewart, and my nephew; 'Charles Carroll McTavish, in trust, to receive the rents thereof, and first pay to William Carroll (whose land in the Alleghanies my mother bought) two hundred dollars a year during his life, and after his death, to pay the same to his daughter Henrietta, during her life, all the rest of the rents, etc., I wish them ¹⁸⁵ to divide equally between my sisters during their lives, and when Mrs. McTavish dies, I wish her portion of all my income to be divided equally between her two sons; at the death of either of my other sisters, I wish the portion of the deceased to be divided among the surviving sisters ; and after the death of all my sisters, I leave all the said property in the City of Baltimore, equally between my two nephews, but subject to the annuity of two hundred dollars a year to the said William Carroll, du'ring his life, and after Ins death to his daughter Henrietta, during her life, the same sum, half of which annuity I charge each of my nephews, and their heirs, executors and assigns to pay.” The testatrix left three sisters, the Duchess of Leeds, Lady Stafford and Mrs. Emily McTavish.

Lady Stafford died in 1862; Mrs. McTavish, in 1867, leaving Charles Carroll McTavish surviving her. The Duchess of Leeds filed lier bill in the Circuit Court of Baltimore City, on the 14th of'August, 1869, “inter alia,” setting forth the will, alleging the death of her sisters, and claiming, that upon the death of Mrs. McTavish, she, (the oratrix,) as sole surviving sister of the testatrix, under the dispositions of the will, was entitled to the whole of the rents of the farms and property devised to the trustees aforesaid. That Mrs. Marcella McTavish, the executrix of Charles Carroll McTavish, who since the death of her testator had assumed the administration of the trust, refuses to account for and pay over to her more than a moiety of said rents, insisting that, according to a true construction of the will, the heirs and representatives of Emily McTavish, deceased, are entitled to the other moiety. The answers of Mrs. McTavish, widow and executrix of Charles C. McTavish, and the other respondents, (wdio are parties in interest,) set up their claim to a moiety of the rents, as alleged in the bill, and the only question arising on this appeal is, whether the devises are to be construed separately and independently, or conjointly, and as one ¹⁸⁶ entire devise and bequest, embracing several particular subjects.

Tbe appellant maintains tbe former is the correct rule of construction, and contends it was error in the Court below, to construe the two clauses of the will together : That «the subjects of the several clauses are separate and distinct properties^ with ultimate remainders in different persons, and there is no propriety in importing the language of the one into the other.* It is contended that the legal operation of the phrase “between my surviving sisters” in the first clause, taken alone, ’is to vest in the complainant, as the sole survivor, a right to the whole of the rents ; and if the two clauses are construed together, the legal effect is, to vest the original portion of Mrs. McTavish only in her sons, and that portion is one-third. Without referring to authorities for the rules of construction of wills and other