Schapiro v. Howard

Pearce, J., delivered, the opinion of the Court. The two appeals embraced in this record are from a decree of the Circuit Court for Anne Arundel County in Equity, construing the will of John J. Hopkins, deceased, who was a resident of that county at the time of his death. The questions presented arise upon a petition filed in a case in said Court, of Mary M. Harding v. Elizabeth W. Howard et al., by the Safe Deposit and Trust Company of Baltimore as trustee under the will of said John J. Hopkins, and also as trustee under the will of Lavinia Hopkins, and as trustee under two deeds, one from Margaret W. Schapiro, and one from Samuel H. Mercer. By the decree passed March 10th,-1896, in the original cause above mentioned, the Safe Deposit and Trust Company of Baltimore was appointed trustee to receive from Lewis dST.

Hopkins, executor of said John J. Hopkins an invested fund of about $9,000 to hold the same for the use of Elizabeth W. Howard, the widow of John J. Hopkins, for her life, and for distribution after her death to those held to be entitled under his will, and since the passage of said decree the said trust has been administered in that Court. The will of John J. Hopkins is as follows being transcribed in full: “The last will and testament of me, John J. Hopkins, of Anne Arundel County, in the State of -Maryland: Eirst: I will and direct that all my just debts be paid and satisfied by my executor hereinafter named after my decease. Second: I will and bequeath unto Louis Hopkins, of Baltimore City, theosum of three thousand dollars, to be invested by him in such stocks or securities as in his discretion shall be most profitable, in trust, for the use and benefit of my wife’s sister, Mrs. Margaret E. Warfield, wife of Lot Warfield. The issues and profits thereof to be paid to the said Margaret E. Warfield during her natural life, and alter her death to be ³⁶³ applied to the use and benefit of her children now living, John B. Warfield and Clarence Warfield, and any other children she may have born to her in wedlock, and upon the arrival at age of each of said children above named, I will and bequeath their share, respectively, of the sum of three thousand dollars, to be paid to them by my said trustee, with the right of survivorship in the event of either of them dying during their minority.

And in the event of each and all of the children of said Margaret E. Warfield dying before their arrival at age, I bequeath the said sum to my heirs at law. Third: I will and bequeath to my nephew, John B. Warfield, my watch and chain that I now wear. Eourth: I will and direct that my executor hereinafter named, as soon after my decease as to him may seem practicable, sell all my real estate lying near Millersville, in Anne Arundel County, being the farm whereon I now reside, as also all other estate on said farm, and invest the proceeds thereof in such securities as to him may seem most judicious, in the name of my wife, Elizabeth ~W. Hopkins, to be held by her, my said wife, Elizabeth, during her natural life, without impeachment of waste, or let or hindrance, from any person whomsoever, during her natural life, with power to sell and reinvest the same as she may think advisable. And I further will and devise unto the said Elizabeth W. Hopkins all other estate, real, personal and mixed, that I may die possessed of or entitled to by devise or inheritance, or in any manner whatever the same may be obtained, to be held by her, my said wife, Elizabeth W. Hopkins, during her natural life, she to have sole control of my said estate without let or hindrance from any person or persons whomsoever; and in the event of my said wife having any child or children at the time of her death, I will and devise the whole of said estate to said child or children, equally to be divided if more than one.

But in the event of my said wife dying without issue living, then and in that .case I devise and bequeath all said estate to my heirs at law. Lastly: I do hereby appoint the aforesaid Louis Hopkins, of Baltimore City, sole executor of this my last will and testament, revoking and annulling all other wills by me made, and ³⁶⁴ ratifying and confirming this and none other to be my last will and testament. Witness my hand and seal this 14th day of June, in the year eighteen hundred and seventy-three. John J. Hopkins.

(Seal) Signed, sealed, published, pronounced and declared by John J. Hopkins, the within-named testator, as and for his last will and testament in the presence of us, the subscribers, who, at his request and in his presence, and in the presence of each other, have hereunto subscribed our names as witnesses thereto. Witnesses: A. S. Bkyan, E. O. Gantt, C. McCeney Clayton." Elizabeth W. Hopkins, after the death of her husband, remarried, and died, Elizabeth W. Howard, October 14th, 1909, without having had issue by either marriage, and the estate of John J. Hopkins, being the fund above mentioned, is now to be distributed to the parties entitled under his will. His heirs at law, answering to that description at the time of his death, were his brother, Mahlon Hopkins, and his sister Ella W. Mercer. Mahlon Hopkins died without issue in 18J9 leaving a will by which he devised and bequeathed all his estate to his mother, Lavinia Hopkins, who died in 1884 leaving a will by which she devised and bequeathed the residue of her estate to the Safe Deposit and Trust Company upon certain trusts declared in said will.

This will was construed by this Court in Marshall v. Safe Deposit and Trust Co., 101 Md. 1 , where it was held that one twelfth part of said residue vested in Marie Henriette Mercer, widow of Samuel H. Mercer; five twenty-fourths in Charles H. Harding, executor and residuary legatee of Mary M. Harding, and the remaining seventeen twenty-fourths in the Safe Deposit and Trust Company under a deed of trust made to it from Margaret W. Schapiro. ³⁶⁵ Ella W. Mercer died in 1879 leaving a will by which she did not attempt to dispose of any interest she might be supposed to have under the will of John J. Hopkins, and leaving two sons,' Samuel II. Mercer and George H. Mercer, and two daughters, Mary, wife of Charles H. Harding, and Margaret, now the widow of Salo Schapiro, all of whom except Margaret Schapiro died before Elizabeth W. Howard. George E. Mercer died without issue in 1887 leaving a will by which he devised and bequeathed all his property to his wife Jennie W. Mercer, now Jennie Mercer Lake. Samuel H. Mercer died in 1897 leaving a will by which he devised and bequeathed all his property to his wife Marie Ilenriette Mercer.

Before his death however he had executed a deed of trust to Lewis H. Hopkins, and on the death of Lewis H. Hopkins the Safe Deposit and Trust Company was duly appointed trustee in his place. Margaret Schapiro and her husband in 1899 made a deed of trust to the Safe Deposit and Trust Company of all her property and estate in Maryland “whether in possession, reversion or expectancy * * * including all of her right, title, interest and estate, both at law and in equity in and to that portion of the estate of John J. Hopkins, deceased, which under his will or otherwise, is now or may hereafter be vested in the said Margaret Schapiro as one of the heirs at law of said testator.” If the date of Mrs. Howard’s death without issue is the date at which the heirs entitled to this estate are to be ascertained, then Mrs. Schapiro is the only person answering that description, and is solely entitled. If however the date to be taken for that purpose is the death of John J. Hopkins, then Mahlon Hopkins and Ella W. Mercer were the only persons answering that description, if the words “heirs at law” are to be construed in their ordi’nary sense, or if they are to be construed as “next of l-in ” in consequence of the admitted conversion of the property into personalty under the will, then Mahlon Hopkins, Ella W. Mercer and Lavinia Hopkins, were the three persons ³⁶⁶ answering that description; the shares so vesting, in either aspect of the case, passing to the beneficiaries of the heirs at law, or next of kin, under the various wills, deeds and devolutions of title before mentioned. All persons possibly interested in the estate upon any theory were made parties, and have answered admitting the necessity of a construction of the will and the case was heard upon the petition and answers, and an agreed statement admitting all matters and facts alleged in the petition and not denied in the answers, without however admitting any statement as to the construction or legal effect of any instrument referred to.

The Court below was of opinion that the words “heirs at law” must be construed as next of kin, but no one prejudiced by the decision upon that point has appealed, and both the appellants agree that the question is not material. The Court below held that the estate vested immediately upon the death of John J. Hopkins, in equal shares in his mother Lavinia Hopkins and his brother and sister Mahlon Hopkins and Ella W. Mercer, as his next of kin, and that “by virtue of the operation of the deaths, wills, deeds and other facts and instruments recited in the proceedings, said shares in remainder should be distributed as follows: “To the Safe Deposit and Trust Company as trustee under the deed from Mrs. Schapiro 20/36; to Charles H. Harding 8/36.; to Jennie Mercer Lake 3/36; to Marie Henriette Mercer 2/36; and to the Safe Deposit and Trust Company under the deed from Samuel H. Mercer 3/36.” These appeals thus present two questions: (1) Did the remainder after death of Elizabeth W. Howard vest at the death of John J. Hopkins in those persons who then composed the class of heirs at law of the testator meaning in this case in the view of the Court, his next of kin, or did it vest at the death of Elizabeth W. Howard, in Mrs. Schapiro as the only living 'representative of that class. ³⁶⁷ (2) If this remainder vested in Mrs. Schapiro, at Mrs. Howard’s death, then was her deed of trust to the Safe Deposit and Trust Company effective to vest the estate in the trustee. Upon the first of these questions, the learned Judge of the Circuit Court reached his conclusion by adopting’ the view that notwithstanding the testator had said in unambiguous and unmistakeable language, that his estate, upon the death of his wife, should go to any child, or children of hers, that his intention was that it should only go to her children by him, and that this language, however contradictory of his apparent intention must he so construed as to give effect to his presumed intention. His actual language was, “I will and devise unto the said Elizabeth W. Hopkins all estate that I may die possessed of * * * to he held by her, my said wife, Elizabeth W. Hopkins, during her natural life, she to have sole control of my said éstate without let or hindrance from any person whatever; and in the event of my said wife having any child or children at the time of her death, I will and devise the whole of my said estate to said child or children, equally to he divided, if more than one.

But in the event of my said wife dying without issue living, then and in that case, I devise and bequeath all said estate to my heirs at law.” In support of this finding of the testator’s intention, the Court in its opinion cites no authority, nor is any cited by the able and diligent counsel of the appellees in their brief in this Court. If this intention can he properly deduced from the language of the will, it is unquestionably decisive upon the point now under consideration, since if he intended to designate only children begotten by him, the possibility of such children terminated at his death. He died without issue, and there was then no class or individual answering the description of children, or a child, begotten by him, and therefore the remainder would then vest in his heirs at law as held by the Court. But is this view tenable ? ³⁶⁸ We will reproduce here the language of the opinion below upon this point.

The Court says: “This will was executed June llth, 1873. and the testator died in 1875.- He had no children at the time the will was executed, and none at the time of his death; but he left surviving’ him a mother and a brother and a sister. “If the words of this clause, now the subject of this controversy, be taken literally the result would be that had a child of the tenant for life by the testator, and a child or children of her hy a future husband survived, they would have shared equally in this estate. In other words, strangers to his own blood would have taken what in all reason or justice should go to his own child; and besides, on the failure of a child by him, and the birth of a child by a future husband, strangers to him would have taken in preference to his next of kin or heirs at law. “The natural objects of his bounty were: first, his wife and children, if any should be born after the execution of his will; and second, his mother and his brother and1 sister. There is nothing in the will to indicate an unfriendly feeling toward his next of kin. On the contrary he made provision for them without preference.

If there had been an intention on his part to provide for children of his wife by a future husband, and divest the property altogether from his next of kin, it is strange he did not create the ultimate bequest in favor of the heirs at law of his wife.” Let us see how this method' of dealing with the unambiguous language of a will comports with the decisions in this State. In Walston v. White, 5 Md. 297 , Judge LeGrawd said: “The rule is this: where the language of the testator is plain and unambiguous such language must govern, and therefore extrinsic evidence is inadmissible to show that he meant something different from what his language imports; in other word's, the question in expounding a will is not what the ³⁶⁹ testator meant, as distinguished from what his words express, hut simply what is the meaning of his words.” That was an action of ejectment, where title depended upon the location of Beaver Dam Branch designated by the testator in his will, as a boundary between two tracts, and the only exception in the case was to the ruling on the prayers. One of the plaintiff’s prayers left it to the jury to find the location of the stream mentioned, together with other designated facts necessary to recovery. It was objected that this prayer should have left to the jury the intention of the testator in the use of the words “Beaver Dam Branch,” and the trial Oourt sustained the objection and rejected' the prayer, but this Court held that ruling to be erroneous.

When a Court is expounding a will either at law, where it is sitting as a jury or in a proceeding like that before us, we know of no other rule by which it must be governed than that indicated above, nor any authority for allowing greater latitude in thé application of that rule, in the one case than in the other. In Hawman v. Thomas, 44 Md. 30 , Judge Babtol quoting Chief Justice Shaw, said“The general rule certainly' is, the intention of the testator is to govern, in the construction, but it is the intention expressed in the will.” In Heald v. Heald, 56 Md. 313 , Judge Bobixsow said': “Whatever may be the general intent of the testator, if it does not appear that he has omitted words intended to be used, it is not competent for the Court by intendment, to reconstruct the will to give effect to such intention. Brotherton v. Bury, 18 Beav. 65; Martineau v. Briggs, 23 Week. Rep. 889.” In Demill v. Reid, 71 Md. 191 , in considering the question of when a certain remainder vested, Judge Middbb said the testator had' the clear right to fix the time of vesting, and said “a Court has no right to put other words into his will, or to place upon those he has used any other than their usual and accepted meaning; and clearly not when there is no necessity for doing so.” And the testator in the case ³⁷⁰ before us had as absolute a right to make the children of his wife by a second marriage the primary objects of his bounty, after his wife’s death, as the testator in Demill v. Reid had to prescribe the time when a remainder created' by him should vest.

And in Abell v. Abell, 75 Md. 58 , Judge Do week said: “It will not do to say the intention must govern, and then by some strained or artificial course of reasoning, attempt to place upon the will a construction plainly repugnant to the language used therein by the testator. In other words, we must be governed not by what we may suppose the testator wished, but by what he says. And arguments based upon the supposed or known wishes of a testator in respect to the disposition of his property are not to be considered unless such wishes are expressed in his will. The short answer, says Chancellor Kent, which Courts are so often compelled to make to such arguments, is, voluHt, sed non dixit/’ Certain it is, that if the language which t'he testator has here used, is to govern in the construction of his will, then any