Phillips v. Heilengenstadt

Urner, J., delivered the opinion of the Court. In the will of Mary Hetzell, of Baltimore City, is the following residuary clause: “All the rest and residue of my estate, of every kind ²⁹² and description, including any property over which I have the power of disposition, I give and bequeath to my brothers and sisters living at the time of my death, the child or children then living of any deceased brother or sister to take the share or portion to which the parent would have been entitled, if living, per stirpes and not per capita.” The will was executed on January 9th, 1935, and Mrs. Hetzell, the testatrix, died on November 30th in that year. Two of her brothers and one of her sisters had died before the execution of her will. At that time, and when she died, there were living a brother and a sister of the testatrix, eight nephews and nieces, five of whom were children of a deceased sister, Fannie Schultz, two of whom were children of a deceased brother, Lee Phillips, and one of whom was a son of Harry Phillips, a deceased brother; and there were three grandnieces, of whom two were daughters of Betty Oats, a deceased daughter of Mrs. Schultz, and one was a daughter of Frank Phillips, Jr., a deceased son of Frank Phillips, one of Mrs. Hetzell’s brothers who died, as did his son, before her will was executed.

The question to be determined is whether the three grandnieces of the testatrix are entitled to share in her residuary estate under the terms of the clause which we have quoted. As they are not children, but are grandchildren, of the deceased brothers and sisters, they could not be admitted to participation in the estate unless the context of the clause, or of the will, may give a broader than ordinary meaning to its designating terms. It has been definitely and repeatedly held by this court that when there are persons answering to the description of “children” in a devise or bequest, grandchildren are not to be included in that classification unless the will plainly manifests such an intention. Cowman v. Classen, 156 Md. 428 , 144 A. 367 ; Billingsley v. Bradley, 166 Md. 412 , 171 A. 351 ; Stahl v. Emery, 147 Md. 123 , 127 A. 760 ; Merowitz v. Whitby, 138 Md. 222 , 113 A. 651 ; Burden v. Burden, 130 Md. 551 , 100 A. 776 .

The effect of the ²⁹³ Maryland decisions on the subject is thus stated in Miller, Construction of Wills, p. 234, as follows : “The legal construction of the word ‘children’ accords with its popular signification, designating immediate offspring and not more distant descendants. In • all cases in which it has been extended to a wider range of objects, it was used synonymously with a word of larger import, such as the word ‘issue’ or ‘heirs’ or ‘descendants.’ The words ‘child or children’, in their usual sense, are words of purchase, and not of limitation, and are always so regarded, unless the testator has unmistakably used them as descriptive of the extent of the estate given, and not to designate the donees. It is only in special and peculiar cases, where such construction is necessary to effectuate the manifest intention of the testator, that they will be taken as words of limitation and construed to be equivalent to the words ‘issue’ or ‘heirs of the body.’ ” In this case, therefore, we are limited to the inquiry whether it is apparent from Mrs. Hetzell’s will that she intended the three grandnieces to have the shares of her estate to which their parents would have been entitled if they had