Pocock v. Gladden

Digges, J., delivered the opinion of the Court. Mrs. Mary E. Gladden died in Harford County, Maryland, on the 25th of December, 1924, leaving a last will and testament dated the 21st of June, 1913. The testatrix made two codicils to her will, the first dated in 1916 and the second in 1921. This will and the codicils thereto- were duly executed so as to pass real and personal property.

John H. Pocock, the grandson of the testatrix, was substituted for J. Merry-man Gladden, her son, as executor of the will by the first codicil. The will and codicils were duly admitted to probate by the Orphans’ Court of Harford County, and the executor entered upon the duties of his office; he has passed a first and final administration account in said court, whereby it appears that he has paid all the debts of the testatrix, and showing a balance distributable of $9,4J4.63. At the time of the making of the will the testatrix had a husband, John H. Gladden, living, and three sons and one daughter, J. Merryman Gladden, J. Edgar Gladden, Leon B. Gladden, and Mary P. Pocock. All of these were living at the time of the execution of the first codicil, but at the time of the execution of the second codicil her son Leon B. Gladden had died unmarried and without issue.

At the time of the testatrix’ death her husband and all of her children with ²⁵¹ the exception of Leon. B. Gladden were living. The husband died on March 5th, 1925. The final administration account was passed oh. the 29th of April, 1926, and on September 30th, 1926, J. Merryman Gladden filed a bill of complaint in the Circuit Oourt for Harford County, which, after stating the facts as above set forth, alleges certain constructions of the terms of said will and codicils to be the correct ones, filing the will and codicils as exhibits, and praying that the court take jurisdiction in the premises and construe the said will of Mary E. Gladden, deceased, and the codicils thereto.

In said bill John II. Pocock, the executor, J. Edgar Gladden, and Mary P. Pocock are made defendants. .The defendants answered, admitting the allegations of the bill, but denying the correctness of the construction of the last will and testament of Mary E. Gladden as claimed by the cotaplainant. The case having been heard on the bill, exhibits, and answer, the court below, on April 4th, 1927, filed an opinion and the following decree: “For the reasons stated, it is this 2d day of April, 1927, by the Circuit Court for Harford County, adjudged, ordered and decreed (1) that J. Merryman Gladden is entitled to one-fourth of the net proceeds of the personal property of which Mary E. Gladden died possessed, absolutely; (2) that said J. Merryman Gladden is entitled to one-fourth of the net proceeds of the real estate of which the said testatrix died seised absolutely upon the payment of $800 to the representatives of Leon B. Gladden; (3) that J. Merryman Gladden is entitled to the use and possession of the $1,000 in bonds referred to in the second codicil of the will of Mary E. Gladden during, and only during, his lifetime, and should he die without descendants said bonds are to be distributed equally to J. Edgar Gladden and Mary P. Pocock, or to their respective representatives; (4) that J. Edgar Gladden and Mary P. Pocock each is entitled to three-eighths of the real and personal property of which Mary E. Gladden died seised and possessed, less the $1,000 in bonds referred to in the second codicil of the will of said testatrix; and (5) that the costs of this proceeding be paid from the fund in the ²⁵² hands of John. EL Pocock, executor of the will of the said Mary E. Gladden for distribution.” From this decree the two appeals contained in this record were taken.

The provisions of the will and the two codicils involved in this proceeding are as follows: “I give, devise and bequeath to my husband, John J. Gladden, for and during his life, all the rest and residue of my personal property and all the real estate to which I may in any manner be entitled at the time of my death. “After the death of my said husband, I give, devise and bequeath all the personal property and real estate given, devised and bequeathed to him as aforesaid, as follows: “I give and bequeath the personal property to my son, J. Edgar Gladden, if he is living with my said husband, at the time of his, my said husband’s death, but if he is not so living I give and bequeath the same to the said J. Edgar Gladden and three other children, namely, J. Merryman Gladden, Mary P. Pocock, and Leon B. Gladden, but, if my said son, Leon, shall die without leaving descendants, I give and 'bequeath the property given and bequeathed to him as aforesaid,- to my said children, Mary P. Pocock and J. Edgar Gladden. “I give and devise the real estate to my said four children, namely, J. Merryman Gladden, Mary P. Po-cock, J. Edgar Gladden and Leon B. Gladden, but, if my said son, Leon, shall die without leaving descendants I give and devise the real estate so given and devised to him as aforesaid, to my -said children Mary P. Pocock and J. Edgar Gladden. “In case of the death of the said Mary P. Pocock, J. Merrymán Gladden or J. Edgar Gladden, without leaving descendants, then I give, devise and bequeath the real and personal estate so given, devised and bequeathed to them, as aforesaid, and what they may be entitled to receive under any provision of this my last will and testament, to my surviving children and the descendants of any deceased child, the descendants of ²⁵³ any deceased child to he entitled to receive only such part thereof as said deceased child would have been entitled to, if alive.” Pirst codicil: “After the death of my husband, John J. Gladden, to whom I devised by said will, all the real estate to which I may be entitled at the time of my death for and during his life, I do hereby authorize and direct my said executor, John H. Pocook, to sell and convey said real estate and divide the proceeds of sale among those to whom I devised said real estate by my said will, hereby giving and bequeathing said proceeds to them in the same way as said real estate was devised to them, except that in the division of said proceeds my son, J. Merryman Gladden, is only to receive the one-fourth part thereof less the sum of eight hundred dollars, which sum is to be paid to my son, Leon B. Gladden, in addition to one-fourth part of the whole of said proceeds.” Second codicil: “One thousand dollars which I hold in United States bonds, I will to my son, J. Merryman Gladden, his lifetime. If he dies without heirs, I will it back to J. Edgar Gladden and Mary P. Pocock equally.” J. Merryman Gladden contends that the appeal by the defendants below was not within the time prescribed by law, and should be dismissed. The decree was signed by the judge on April 2nd, 1927, but was not filed in the clerk’s office until April 4th, 1927. The order for the appeal was filed June 3rd, 1927.

If the time is reckoned from April 2nd, the appeal was taken too late, but, if it is to be reckoned from April 4th, it is within the time allowed. This contention is not seriously pressed; but in order that the question may be set at rest for the future, it is our opinion that the date of a decree, in contemplation of section 36 of article 5 of the -Code, relating* to the time within which appeals from decrees ²⁵⁴ or orders of courts of equity shall be taken, is that date upon which the decree becomes effective and binding, which can only be that date upon which it is filed and becomes a part of the public record of the case. It requires no authority to support this conclusion, as otherwise a court could sign, a decree, and by inadvertence retain it in his possession until after the time allowed for appeal therefrom had passed. There is nothing binding in the decree of the court until it is filed, for the simple reason that until it is filed the court could alter or destroy it entirely and substitute some other in its place.

By the will the testatrix disposed of personal and real property, different dispositions being made of each of these species of property. In disposing of her. personal property, she first bequeathes to a granddaughter, Prances Elizabeth Pocock, all of her silver and chinaware, mahogany table, and oil painting in the parlor of her residence. She then devised and bequeathed to her husband all the rest and residue of her property, both personal and real, for and during his life. After the death of her husband, which, as stated, occurred shortly after that of the testatrix, she bequeathed all of the personal property and real estate given, devised and bequeathed to him, as follows: “I give and bequeath the personal property to my son, J. Edgar Gladden, if he is living with my said husband, at the time of his, my said husband’s death, but if he is not so living I give and bequeath the same to the said J. Edgar Gladden and my three other children, namely, J. Merryman Gladden, Mary P. Pocock, and Leon B. Gladden, but, if my son, Leon, shall die without leaving descendants, I give and bequeath the property given and bequeathed to him as aforesaid, to my said children, Mary P. Pocock and J. Edgar Gladden.” The record is silent as to whether or not J".

Edgar Gladden was living with his father, the husband of the testatrix, at the time of the husband’s death, but we assume that he was not so living, as the opinion of the lower court and the briefs of counsel treat that as being a fact. Therefore we will deal with the personal property upon the assumption ²⁵⁵ that J. Edgar Gladden was not living with his father at the time of his father’s death, and that the personal property must go in the manner provided by the testatrix in snch event. At the time of the testatrix’ death her son Leon was dead and did not leave descendants, and, by the plain terms of this paragraph of the will in such event, that is to say, the event of Leon dying without leaving descendants, the one-fourth part of the personal property which was bequeathed to him was directed to go to the testatrix’ children, Mary P. Pocock .and J. Edgar Gladden. We, therefore, conclude that the personal property, exclusive of the $1,000 Liberty bonds mentioned in the second codicil of the will, and exclusive of the proceeds from the sale of the real estate, should be divided as follows: One-fourth thereof to J. Merryman Gladden, three-eighths to Mary P. Pocock and three-eighths to J. Edgar Gladden.

In dealing with the real estate, in the body of the will the testatrix gave and devised the same to her four children, namely, J. Merryman Gladden, Mary P. Pocock, <T. Edgar Gladden and Leon B. Gladden, but if her son Leon should die without leaving descendants, she gave and devised the real estate, so given and devised to him as aforesaid, to her said children, Mary P. Pocock and .1. Edgar Gladden; and further provided that in ease of the death of either Mary P. Pocock, J. Merryman Gladden, or J. Edgar Gladden, without leaving descendants, “then I