Reiff v. Strite

Alvey, J., delivered the opinion of the Court. This appeal is brought to this Court from a pro forma decree of the Circuit Court for Washington County, and the question for decision is, what is the proper construction of certain clauses in the last will and testament of Abraham Strite, deceased. The testator died in the fall of 1863, without children, hut left a widow surviving him. He was seized of a farm and some mountain land, and was also possessed at the time of his death of certain stocks and other personal property.

By his will he authorized and empowered his executors to sell his mountain land at any time after his death, hut his farm and his stocks and certain other personal property he devised and bequeathed to his wife for ³⁰⁰ life, and after the death of his widow he authorized and directed his executors to sell the farm, and also the stocks and any other property then belonging to his estate. He gave certain pecuniary legacies to parties other than those now claiming as legatees, and then directed that the proceeds of the sales thus authorized to be made by his executors, and all the residue of his estate, should be distributed and paid over as follows : “ I further order and direct that the residue of my estate shall be divided into three equal shares, one of which shares, which is one-third, I bequeath to the children of my brother John Strite, deceased, or to their heirs, to be equally divided among them, share and share alike. I give and bequeath one equal share, being also one-third, to the children of my brother Joseph Strite, deceased, or their heirs, to be equally divided among them, share and share alike. I give and bequeath unto my brother Samuel Strite, or Ms heirs, one equal share, it being also the one-third.

It is. further ordered, that when any money shall be in the hands of my executors, they shall pay it in equal distributions among the foregoing bequests.” The executors named in the will proceeded with the administration of the estate, and settled several accounts ; and, after paying the expenses of the administration, and the pecuniary legacies, distributed about $600 to each of the three equal shares mentioned in the will, from assets realized from property not devised or bequeathed to the widow for life. After the last of these distributions, Samuel Strite, the legatee of one of the three equal shares of the residue of the estate, made a general assignment of all his property and estate to the appellants, as trustees for the benefit of his creditors ; and in May, 1878, he died, the widow of the testator still surviving. In May, 1879, the widow died; and the contention now arises as between the trustees under the deed of trust of Samuel Strite, and those who claim to be entitled under and by the designation of “ his heirs.” ³⁰¹ With respect to the real estate, that being directed to he sold for the purpose of distribution, its conversion-into personalty is to he regarded as complete from the death of the testator, so far as the residuary legatees are concerned. Those therefore claiming the property under the residuary bequests of the will must take it in the character which the testator, by directing the conversion, has impressed upon it; and its subsequent disposition is governed by the rules applicable to property of the character into which the conversion is directed to he made.

Therefore the bequest to Samuel Strite or his heirs must he construed as of personal estate alone, though the farm devised to the widow for life, and which constituted a considerable part of the residuary estate, was not to he sold until after her death. The authorities are uniform in holding this to he an established principle of equity. Hurtt vs. Fisher, 1 H. & G., 88 ; Smithers vs. Hooper, 23 Md., 273, 285 ; Thomas vs. Wood, 1 Md. Ch. Dec., 296; Carr vs. Ireland, 4 Md. Ch.

Dec., 251; 1 Jarm. on Wills, 473, and the cases there cited. Samuel Strite, the legatee, having survived the testator, hut died before the devisee and legatee for life of part of the estate, leaving several children, the question is, what meaning and effect are we to give to the words “ or his heirs ” in the bequest, as to that part of the estate given in remainder ? If the words are to he taken in a sense to indicate simply an absolute estate and right of property in Samuel Strite, the first legatee named, and not substitution for the first legatee in the event of his death before the time of distribution or payment, it is quite clear, there could he no right in those now claiming by virtue of the bequest to the “ heirs,” hut the right would he in the appellants as assignees of Samuel Strite. But is that the construction of this residuary bequest to Samuel Strite, “ or his heirs,” according to the authorities ?

It is conceded that if Samuel Strite had died in the life-time of the testator, the person or class of persons ³⁰² claiming under the description of “heirs” would have been entitled by way of substitution. Such certainly is the settled rule of construction where, as in this case, there is nothing on the face of the will to indicate a different intention; that construction, therefore, could not be controverted. And it being conceded that