Redwood v. Howison

Thomas, J., delivered the opinion of the Court. It appears from the bill of complaint in this case that Dr. R. Dorsey Coale, of Baltimore City, died in May, 1915, leaving the following last will and testament: “I, R. Dorsey Coale, do hereby make and declare this as my last will and testament. 1. I desire my executor and administrator to pay, from my estate, all of my just debts, and to properly adjust my accounts with the University of Maryland. 2. The above provision having been complied with, all the rest and residue of my estate, in property of every kind, and all sums of money due me, as fees uncollected or unpaid, or as salary due, from the University of Maryland, or from any other person or persons, I give and bequeath absolutely to my beloved wife, Minna Howison Coale. 3.

I constitute and appoint Francis T. Redwood as my administrator and executor under this will, and I desire that no bond be required of him for the fulfillment of this duty. ⁵⁷⁹ In the event of the occurrence of my death before that of my mother, I commend to the love and care of my dear mother, my beloved wife, with earnest request, that should such provision be needful, she will, so far as may be possible, and from the legacy which she may have intended to bequeath to me, in the event of her death preceding mine, provide for my wife until her remarriage. Signed, sealed, published and declared by me as my last will and testament, revoking all previous wills, this second day of April, nineteen hundred and one. R. Dorsey Coale. (Seal)” The executor named in the will having died before the testator, letters of administration, with the will annexed, were granted to Mrs. Mary 33.

Redwood, the widow of Erancis T. Redwood and sister of Dr. Ooale, who, on the 22nd day of June, 1915, returned to the Orphans’ Court of Baltimore City an inventory of the personal estate of the testator, valued at $55,014.54, and made up of the following items: Household furniture, $262.75; bonds, $22,257.00; stocks, $24,802.00; cash in the National Bank of Baltimore, $2,-692.79, and proceeds of policy upon the life of the decedent in The Eenn Mutual Life Insurance Company, $5,000.00. The administratrix paid all the debts of Dr. Coale and settled her first account in the Orphans’ Court, by which it appears that the balance for distribution, consisting of furniture, bonds, stocks and cash, is $57,383.80, subject to the collateral inheritance tax. Dr. Coale’s wife, Minna Howison Coale, died in October, 1911, leaving a will, executed in December, 1910, by which she left him all her property and appointed him executor. Letters testamentary were granted to him, and he returned an inventory of the estate amounting to $9,519,00, and consisting of bonds valued at $6,358.00, and stocks valued at $3,-161.00.

Dr. Coale, as executor, filed an account in the Orphans’ Court of Baltimore City on the 22nd of October, ⁵⁸⁰ 1913, by which, it appears that the income received from the bonds and stocks was sufficient to pay Mrs. Coale’s debts and the cost of administration, and that the bonds and stocks were distributed to him in accordance with the terms of the will. After his wife’s death, Dr. Coale found with her will the following letter, and also a list of articles which she described as “heirlooms in Coale family,” and which she stated were “to go to Mary B. Bedwood”: “January third 1911 My dear Dorsey, here is my letter of bequests & if you do not object to any of them, I would like very much to have you carry them out at your convenience. I want Mother to have my fur coat. Aside from that I will leave her only her bed room- furniture if she wishes it, as I know you will look out for her & after your death, Kell will continue to take care of her.

I would like Kell to have all my jewelry, silver and clothes & a pair of ‘Palm leaf cut’ decanters. They are my own and are on the lowest shelf of the glass closet. I want her to give Lida K"aney and Gretchen a piece of my jewelry. At your death, I would like you to leave Kell my share of Aunt’s money, & all our furniture & silver & glass which were not heirlooms in your family.

I especially want Kell to have my Chinese and Japanese things & embroideries. I would like Gretchen to get $1000. Ellen to get $100. Henriette $50.

The rest to go to Kell at your death; Please don’t let Bhett want in her old age. I want Mary Bedwood to have my cameo bracelet that Aunts gave me the cameos for. I want George to have any of my books & $100. I want Erancis to have my little ivory rabbit & $100.

Please give Mr. Crosby the little cigarette holder on the mantel. And some book of mine. Give Aunt Bess a piece of glass or china. T think that is all & hope I have not left out anyone.

Thank you Dorsey & God keep you my dear. You were always so good and patient with me. ■ Your loving wife Minna Coale.” ⁵⁸¹ The bill states that Dr. Ooale gave Margaret Rohe, referred to in the letter as “Gretchen,” a $1,000.00 bond, and that all his wife’s requests were complied with, “with possibly one or two exceptions,” during his life, except the request in regard to1 the heirlooms, which were not received by Mrs. Redwoood until after Dr. Coale’s death because they largely furnished the house in which he resided, and the request in regard to Eleanor Howison Witherspoon, spoken of in the letter as “Hell.” Mrs. Ooale’s mother, who was .living with Mrs. Coale at the time of her death, continued to live with Dr. Coale as his guest until his death. Dr. Coale kept the bonds and stocks received by him under his wife’s will in his box in the Safe Deposit and Trust Company of Baltimore iu a package by themselves and separate from other securities owned by him, and each certificate of stock and each bond was marked in his handwriting in pencil either “From Minna H. Coale” or “M. H. C.” Mrs. Caroline Donaldson Ooale, mother of Dr. Ooale, died in January, 1902, leaving a, will executed in October, 1900, and Dr. Coale received from her estate $17,563.11. The policy of life insurance for $5,000.00 was issued in 1896, and was made payable, in accordance, with Dr. Ooale’s application, to his wife, “if she survive him otherwise to his executors, administrators or assigns.” In December, 1912, the Aetna Life Insurance 'Company, of Hartford, issued an “Accumulative Disability Policy” to Dr. Coale, which was in force at the time of his death, by the terms of which, in case of his death by accident, the amount therein specified was payable to his estate.

At the time of her death, Dr. Coale’s wife was thirty-eight years of age, and he was fifty-seven years of age when he died, and the bill alleges that at the time Dr. Coale made his will “he was without property or estate of any pecuniary value and that he was in receipt of no income except his salary as professor of chemistry at the University of Maryland and as Dean for a number of years of the Medical School of the University, which salary * * * ⁵⁸² was no more than sufficient to defray” his living expenses, and that at the time of his death his ©state consisted almost exclusively of the property he acquired after the execution of his will from his wife’s estate, from his mother’s estate, and from the estates of his two aunts, Elizabeth B. Coale and Josephine R, Coal©, and the estate of his cousin, Robert M. Proud, “and the investments of income arising therefrom, together with $5,000.00 proceeds of the above mentioned policy of insurance.” Dr. Coale left as his only heirs at law and next of kin his sister, Mrs. Mary B. Redwood, and a nephew, George B. Goal©, the son of a deceased brother, and the bill of complaint, which was filed by Mrs. Redwood, in her own right and as administratrix c. t. a. of Dr. Coale, against Mrs. Ride M. Howison and Mrs. Eleanor Howison Witherspoon, the mother and sister of Dr. Coale’s wife, and her next of kin at the time of his death, and the said George B. Coale, alleges that the plaintiff for a time after the death of Dr. Coal© was.advised that notwithstanding. Mrs. Coale died be- ‘ fore Dr. Coal© his will was operative to pass all his property and estate to the defendants, Mrs. Howison and Mrs. Witherspooon, as the next of kin of his wife at the time of his death, but that “she has recently been advised that upon a proper construction of the will” it was “only to take effect in the event that his wife * * * survived him, and that she having predeceased him,” Dr. Coale died intestate, and that his estate is distributable to the plaintiff and Dr. Ooale’s> nephew, “who are his sole heirs at law and next of kin and distributees”; “that claim has been made upon her for the estate * * * upon the one hand by the defendants,” Mrs. Howison and Mrs. Witherspoon, “and upon the other on her half of the infant defendant, George Buchanan Coale”; and that she is further advised that it would not be safe for her to pay over the estate of Dr. Coale “or any part thereof to either of the defendants without the protection of a decree” of the Court below. The bill prayed the Court to construe ⁵⁸³ the will and to assume jurisdiction over the further administration of the estate, etc. The defendants, Mrs. Ilowison and Mrs. Witherspoon, demurred to the hill upon the following grounds: “1st. The plaintiff has not stated in her said bill of complaint such a case as entitles her to any relief in equity against these defendants. 2nd.

It is apparent upon the face of the hill that the language of the will of R. Dorsey Coale, deceased, and the intent of the testator thereunder are plain, unambiguous and free from doubt, and that therefore the Court is without jurisdiction to construe said will. 3rd. The hill of complaint discloses no special circumstances, nor alleges any facts legally sufficient to confer upon this Court jurisdiction over the further administration of the estate of the said R. Dorsey Ooale, deceased, by the plaintiff as his administratrix, c. t. a- 4th. It is apparent upon the face of the hill itself that these defendants are the persons legally entitled to receive the estate of the said R. Dprsey Ooale, deceased, from the plaintiff as his administratrix to the exclusion of all other persons.” The Court below held that the will was too clear and positive to admit of a construction “that would qualify the bequest,” and this appeal is from its decree sustaining the demurrer and dismissing the bill. The appellant contends that the decree should he reversed for the following reasons: “1st.

Because upon the face of the will and from such surrounding circumstances as may be properly resorted to, it clearly appears that Dr. Coale did not mean that the bequest to his wife should he operative unless she survived him. 2nd. Because the provision made by Dr. Coale for his wife is by statute conclusively presumed to have been in lien of her distributive share of his estate and was conditioned under1 the statute upon her becoming his widow; and that she having predeceased him the will failed to take effect npon any part of his estate. 3rd. Because the prior death of Dr. Ooale’s wife brought about a complete change in his family, and with it an implied revoca ⁵⁸⁴ tion of his will. * * * 4th. Because under no circumstances could the property which Dr. Ooale acquired under his wife’s will pass under his will hack through the wife to her relatives. 5th.

Because clearly it was not Dr. Ooale’s intention that the $5,000, proceeds of the policy upon his life * * * should pass under his will to the mother and sister of his wife, his intention having been clearly expressed in the policy and in his application therefor that his wife was not to become entitled to the same unless she survived him.” 'Section 326 of Article 93 of the Code of 1912, provides.: “bio devise, legacy or bequest shall lapse or fail to take effect by reason of the death of any devisee or legatee (.actually and specifically named as devisee or legatee, or who is or shall be mentioned, described or in any manner referred to, or designated or identified as devisee or legatee in any will, testament or codicil) in the lifetime of the testator, except as hereinafter provided, but every such devise, legacy or bequest shall have the same effect and operation in law to transfer the right, estate and interest in the property mentioned in such devise or bequest as if such devisee or legatee had survived the testator,” etc. In Vogel v. Turnt, 110 Md. 192 , the Court quotes the statement in 18 Am. & Eng. Ency. of Law, 758, that: “Statutes for the prevention of lapses are intended, not to defeat the will, but to supplement it, and ought not to control if it be inconsistent with the will to have them control,” and after referring to Maryland cases in accord with that view, says further: “But it was also said in 18 Am. & Eng. Ency. of Law, 758, immediately following the above quotation: ‘But it must be presumed that the testator made the will in view of the statute and that he intended to have the statute prevail, unless the contrary appeared. The burden of showing the contrary is on the party claiming that the statute does not apply, and this burden is not lifted when it is made to appear that the legacies were prompted by a personal regard for the legatees, for the fact that they were so prompted is not at all inconsistent with an ⁵⁸⁵ intent to have them, go to the descendants of the legatees in case the legatees themselves die before the testator.’ ” In that case the Court held that the language of the will relied on was by no moans sufficient to overcome the effect of the statute, and after discussing the provisions of the will, said in conclusion: “The terms of the will strengthen, rather than weahen, the position taken by the appellee.

If the testator had desired to exclude his daughter’s husband from the enjoyment of what he devised and bequeathed to her, he could have left her share for life, or could have put it in trust, and very easily have accomplished such purpose. But he not only did not adopt that course, but he forgave his daughter and her husband the debt they owed him, and the evidence, taken by the appellants, shows that he knew that his daughter was dead and that he was gratified when he heard that her body had been taken to Baltimore and buried in bis lot. So if we make use of the evidence offered by them, it rather tends to show the very opposite of their contention, in so far as it has any effect on the question. Indeed the will itself indicates a clear intention to give the testator’s daughter the ground rents referred to, and to make her one of the residuary legatees and devisees, and there is an entire absence of a desire to exclude her husband, or any other person who might by law or otherwise become interested in the property left her.” In the case of Hemsley v. Hollingsworth, 119 Md. 431 , the 'Court calls attention to' the fact that it had been the policy in this State for one hundred years to prevent the lapsing of legacies and devisees merely because the legatee or devisee had predeceased the testator, and to the presumption that the testator was advised of the result of a legatee dying before him, and after referring to the statement in 18 Am. & Eng.

Ency. of Law which we have quoted above, said: “When this will was executed in 1897, it must be presumed, in the absence of something to the contrary, that the testatrix intended that the devise or bequest left to Mr. McKim should go to him, if living at the time of her death, and if not then ⁵⁸⁶ living to those in esse entitled to his estate. The provision had so remained in her will for ’twelve years before she was stricken, and McKim & Company had failed more than two years before it is claimed she became incompetent to change her will, but she made no change in it.” Again in Duering v. Brill, 127 Md. 104 , the Court refers to the fact that the testator lived fourteen years after the death of his daughter and made no change in his will, as reflecting upon the intention of the testator. By the terms of his will, Dr. Ooale, after providing for the payment of his debts and the adjustment of his accounts with the University of Maryland, gave all the rest and residue of his estate, “in property of every kind, and all sums of money due him, as fees uncollected or unpaid, or as salary due him by the University of Maryland, or from any other person or persons,” absolutely to his wife. Mow it is presumed that he made this will in view of the provisions of the statute, and that he intended, in the event his wife was not living at the time of his death, that his estate should go to those who were her heirs or next of kin at his death, unless a contrary intention appears.

The appellant insists that the directions in the will for the payment of his debts and the adjustment of his accounts with the University of Maryland, followed by the provision: “The above provision having been complied with, all the rest and residue,” etc., indicate