Russell v. Werntz

Page, J., delivered the opinion of the Court. Jesse Russell, being seized and possessed of real and personal property, died in the year 1894. He left a will, in which, after providing for debts and funeral expenses, he makes “ distribution ” of his estate by two paragraphs : first, he bequeaths to his son George W. Russell, the sum of $800, to be paid out of a certain policy of life insurance; the second is as follows: “ Item second. I bequeath unto my present wife, Virginia Russell, all the residue of my estate, including all my property, both real, personal or mixed, to have and to hold and dispose off (sic) as she may see fit, while she remains single, and at her death or marriage, the remaining property is to be equally divided between my two daughters, Grace A. Russell and Jessie V. Russell.” His wife was named executrix and acted as such.

Grace Russell, having intermarried with Joseph Schmidt, died childless, a few days before her father. George, a child by his first marriage, and Jessie V. survivéd him, and are yet living. The appellees contend that Virginia Russell, under the second clause of the will, acquired only a life estate in the realty, with power to dispose of that interest and no more; and that the daughters took a vested interest in the remainder. The contention of the appellant is, that the power of disposition being without limitation, the widow took a fee; or, if it be held she acquired only ²¹² a life estate, the full exercise of the power conferred on her would be effectual to convey a fee simple title in the reversion.

It is needless for us to say that in determining these questions, as in all other cases where the construction of wills is involved, the primary object is to discover the intention of the testator, and give it effect, if possible. If the language employed by the testator be such as to render it impossible, with any degree of precision, to fix what that intention is, the doubt must be resolved by invoking the aid of well-settled rules of construction. Tayloe v. Mosher, 29 Md. 451 . So far, as to what estate he intended his widow to take, the words of the will leave no room for doubt.

As was said by this Court in Clark v. Tennison, 33 Md. 93 , where the devise was to the wife, “ so long as she remains my widow; at her death to be, etc.”, “ the plain intent of the testator was that the widow should have the property no longer than widowhood. It is equally clear that the limitation over is in favor of the testator’s children, who were the primary objects of his bounty after giving her the preceding estate.” He failed in that case to limit it over to them after her marriage, but the court held .it to be necessary to carry out the plain intent, to - construe the will as giving the estate to the children on the termination of the wife’s estate, whether that be by- her marriage or her death. In the case at bar, the limitation is in express words: “ at her death or marriage, etc.”, the property is to go to the two daughters. If the words just referred to were all the devise contained, there could be no question as to the proper construction of the paragraph.

But there are others; the language is: “I bequeath — all the residue of my estate, real, personal or mixed, to have and to hold and dispose of as she may see fit, while she remains single, and at her death or marriage, etc.” These words are very broad, but they are not clear; do they confer upon the widow a power to dispose of the property for the period she should remain single; or a power while she remained single to dispose of the whole estate, including the ²¹³ reversion? The language employed may imply the one or the other, and that being so, we must inquire what were the purposes the testator had in mind when he wrote his will, and from his language, when considered in the light of these purposes, ascertain his intention; for after all upon his intention, legally and properly ascertained, must depend the scope and extent of the power. At the time of making his will the testator had three children, one a son by a former marriage, the others, two daughters by the last marriage. One of the daughters dies a short while before her father, leaving a husband but no children.

Her death caused him to make no alteration in his will. There is an evident purpose on the part of the testator to remember and provide for each member of his family. By the first paragraph he bequeaths to his son a sum of money, and explains why he had not left him more of his estate. The entire residue he devotes to the uses of his wife and her two children.

As to them, his primary object was to provide for the wife during her life, provided she remained his