Reeside v. Annex Building Ass'n

Digges, J., delivered the opinion of the Court. The question in this case is one of title, and arises from the following facts: Ida M. Reeside was the owner in fee simple at the time of her death of property located in Baltimore City known as No. 2011 Smallwood Street. By her last will and testament, executed November 2nd, 1916, and duly probated by the Orphans’ Court of Baltimore City on November 19th, 1925, she devised and bequeathed as follows: “After the payment of my just debts and funeral expenses, I hereby give, devise and bequeath all of my property, real, personal and mixed of whatsoever kind and character and wheresoever situate or being, to which I may be entitled at the time of my death, to my husband, Oliver H. Reéside, and to be held by him during the term of his natural life with full power to sell and convey absolutely or by way of mortgage or lease, any or all of my estate, real or personal, and reinvest the proceeds thereof in his own discretion; and from and after the death of my said husband, then to the child or children by my said husband, then living, and to the issue then living, of my child or ²⁰² children by iny said husband, which may then be deceased, share and share alike per stirpes and not per capita, only the share or respective shares which the parents or the respective parents, if living, would have taken. I hereby constitute and appoint my husband, Oliver H. Reeside, to be the executor of this my last will and testament, hereby revoking all other wills or codicils by me heretofore made, and it is my wish and order that he be excused from giving bond.” On March 23rd, 1926, Oliver H. Reeside executed to the Annex Building Association of Baltimore City, the appellee, a mortgage on the Smallwood Street property to secure the loan of $2,500 made by the appellee to him, wherein, after reciting that he was a member of the appellee and had subscribed twenty-five shares of its capital stock of the par value of $100 each, it proceeded as follows: “Xow therefore this mortgage witnesseth that in consideration of the premises and one dollar the said mortgagor does grant unto the Annex Building Association of Baltimore City, its successors and assigns, all that lot of ground in Baltimore the improvements whereon are now known as number 2011 Smallwood Street, and described as follows.” (There then follows a description of the property.) “Being the same lot of ground which by deed dated the tenth day of March 1916, and recorded prior hereto, was conveyed by Safe Deposit and Trust Company of Baltimore, trustee, to Ida M. Reeside.” (The description in both the mortgage and deed being identical.) “To have and to hold the said lot of ground and premises unto and to the use of the said Annex Building Association of Baltimore City, its successors and assigns, for ever in fee simple.” The mortgage further provides, on default of any of its covenants, for the sale of the mortgaged premises, and the distribution of the proceeds in accordance with the law and terms of the mortgage. ²⁰³ On June 15th, 1932, the mortgage being in default, a petition was filed in the Circuit Court of Baltimore City, praying that a decree be passed for the sale of the property in accordance with the terms of the mortgage; upon which petition an order was on the same day signed by the chancellor, decreeing and ordering the sale of the property and prescribing the manner and terms of sale.

The mortgage sale was had on July 5th, 1932; and thereafter, on July 13th, the trustee reported the sale to the court, showing that the purchasers at said sale were Oliver H. Beeside, Jr., and Florence X. Beeside, his wife, at and for the sum of $2,875. On August 9th, 1932, the purchasers filed exceptions to the ratification of the sale, in which it is alleged: “That the trustee appointed by this Court cannot convey a good and marketable fee simple title of the said property to^ these purchasers which he purports to sell them, in that Oliver H. Beeside, the defendant herein, did not convey to the said The Annex Building Association of Baltimore City, the plaintiff herein, by the mortgage filed in these proceedings, a fee simple title to the said property.” After the taking of testimony, and argument, the chancellor passed orders overruling the exceptions and ratifying the sale. The appeal here is from those orders. There are three questions raised on this appeal: First.

Under the terms of Ida hi. Beeside’s will, did the husband, Oliver H. Beeside, have the power and authority to dispose of or mortgage the property in question in fee? Second. Did Oliver H. Beeside, in making the mortgage foreclosed in these proceedings, exercise the power given him in the will of Ida M. Beeside, so as to create an incumbrance upon the fee simple estate in said property, which upon foreclosure of the mortgage would carry the fee to the purchaser at such sale?

Third. Was there an obligation on the part of the mortgagee to- see to the application by the mortgagor of the proceeds of the mortgage ? ²⁰⁴ Considering these questions in the order stated, we are of the opinion that, under the terms of the will of Ida M. Reeside, her husband, Oliver IT. Reeside, took a life estate in all of the decedent’s, property, with full power and authority to sell and convey absolutely or by way of mortgage the property here in question. In this, as in the construction of all wills, the effort must be to ascertain and give effect to the intention of the testator, to be gathered from the language employed throughout the will, together with the conditions and circumstances surrounding the testator at the time of its execution.

Mrs. Reeside’s will is brief and clear in its expression. It contains only two clauses, by the second of which she constitutes her husband, Oliver H. Reeside, her executor, and relieves him from giving’ bond for the faithful execution of the trust. We have no concern with this clause, other than to note that it demonstrates full and complete confidence by the testatrix in the executor therein named -to carry out her wishes as expressed in the will. By the first clause the testatrix, after providing for the payment of debts and funeral expenses, gives, devises, and bequeaths all her property, of whatever kind and wheresoever situate, to her husband, Oliver H. Reeside, to be held by him during the term of his natural life.

Considering the language to this point, there can be no possible construction other than that Oliver H. Reeside was given a life estate in all of the property of the testatrix. The will then continues without punctuation: “With full power to sell and convey absolutely or by the way of mortgage or lease, any or all of my estate, real or personal, and reinvest the proceeds thereof in his own discretion,” with remainder over, after the death of the husband, to the testatrix’ children or issue of children, per stirpes and not 'per capita. The contention of the appellants on this point is that the intention of the testatrix, as shown by this language, was to permit her husband, the life tenant, to dispose of, by sale or mortgage, only his life estate in the property. Every logical interpretation requires the rejection of such a contention, whether we consider it exclu ²⁰⁵ sively from the language employed, or in connection with the evident intent of the testatrix.

Analyzing the language, it is seen, as above stated, that the testatrix gives to her husband a life estate in “all of my property”; and when we consider the property in respect to Avhieh he is given the power to sell or mortgage, the testatrix employs language of identical meaning when she says, “with full power to sell and convey absolutely or by way of mortgage or lease, any or all of my estate,” and reinvest the proceeds thereof in his own discretion. These expressions are about as clear and unequivocal a declaration of purpose and intent as language can be, and no words in an attempted elucidation of the testatrix’ meaning would add to or make clearer her purpose than those employed in the will. Therefore, if the husband is given a life estate in all of the testatrix’ property, which is not and cannot be denied, it must follow that when the testatrix says, “with full power to sell and convey absolutely or by way of mortgage or lease,” the subject upon which the power is to operate is all of the testatrix’ property, and cannot be confined or construed to mean that the life tenant can sell or dispose of only his life estate. Neither can such a construction be held to be the intention of the testatrix, because without any power of disposition at all given to the husband, he did have the unquestioned right to sell and mortgage or otherwise dispose of his life estate.

There would be no' necessity for the grant by the testatrix of any power for that purpose; and such a construction would disregard and exclude from consideration all that portion of the will which confers the power. In other words, by such construction we are asked to effectually delete language usel by the testatrix, and as effectually in part destroy her evident intent and purpose. The husband, the donee of the power, is definitely authorized and directed to reinvest in his own discretion the proceeds arising from any sale, mortgage or lease of the testatrix’ property or any part thereof. If, according to the construction urged by the appellants, such proceeds are only ²⁰⁶ •those which may be derived from the sale or mortgage of the life estate, it inevitably follows that by such act the testatrix in one clause would be giving to her husband a life estate, and in the next, depriving him of the fruits of such a gift; because if he disposed of only his life estate, and was bound to reinvest such proceeds for the benefit of the remaindermen, the estate of the life tenant would be greatly impaired, if not destroyed, and at his death the remaindermen would not only get the whole property in fee simple, but ■would also be entitled to the investment made by the life tenant of the proceeds arising from the sale of his life estate.

To impute such an intention to the testatrix would be wholly ■unreasonable, and cannot be adopted or sustained. The appellants rely strongly upon the case of Bachtell v. Bachtell, 135 Md. 474 , 109 A. 198 , and, it must be admitted, with apparent justification. It needs no citation of authority for the proposition that the intention of the testator is controlling in the construction of wills, or, as has been tersely expressed, is the “law of wills,” and when properly ascertained must be made effectual, unless constrained by some positive rule of law or property. In Bachtell v. Bachtell, supra, this court found the intention- of the testator to be that his wife should have a life estate, with remainder to his children; and although there was a power given the life tenant to dispose of the property, it was held that the power only referred to the life estate.

The language of the will in that case was: “After the payment of all my just debts and funeral expenses, I give, devise and bequeath all my estate, AVhet-her real, personal or mixed and wheresoever situated, to iny wife, Catherine Bachtell, for and during her natural life, with full power and authority to sell, mortgage, lease or -otherwise dispose of at such times and under such circumstances