Slingluff v. Johns

Pearce, J., delivered the opinion of the Court. This suit was instituted to procure a construction of the following clause in the will of the late Rev Dr. Henry V. D. Johns: “ Aware of the liability to loss of their patrimonial estates by females through injudicious marriages or mismanagement, I hereby appoint my two eldest sons, to act as trustees of that portion of my estate which I have devised to my two daughters. This property I hereby entrust to my two eldest sons * * * to be sacredly kept and safely invested, for the sole and exclusive use of my two daughters, Fidelia and Lavinia, and for their children, if they marry, and have descendants. If they should not many, or marry and die without child or children, my will is that this portion of my estate hereby entrusted to my sons, for the benefit of their sisters, should at their death, revert to my children who may survive, or to the descendants of their children, and be equally divided between them.” The testator died in 1859, leaving six children surviving him, namely, Dr. ²⁷⁵ Montgomery Johns, Henry V. D. Johns, James Carroll Johns and Dr. John Kensey Johns ; and two daughters, Fidelia R. Johns and Lavinia M. Johns.

Dr. Montgomery Johns died in 1871, leaving children still surviving; Fidelia married and died many years ago, leaving no issue, and Lavinia died in October, 1896, unmarried and without issue. Henry, James and John were all living at Lavinia’s death, and the question is, whether Lavinia’s share now goes exclusively to the three children of testator surviving at her death, or whether the children of Montgomery, the deceased son, take what would have been his share, had he survived Lavinia. The Circuit Court of Baltimore City held that the children of Montgomery are not entitled to take his share, and from that decision this appeal is taken. In reaching this conclusion, exclusive controlling effect was given by the Circuit Court to two well-established general rules of construction : First, that where a life-estate is created, and a gift is made over to survivors, the period of survivorship must be referred to the death of the life-tenant—or first legatee—and not of the testator ; and second, that where words are used in themselves meaningless, and which cannot be corrected by alteration, addition or transposition, upon any sound principle of construction, they shall be altogether rejected.

Applying these rules, it was concluded : First, that the words “ to my children who may survive” if they stood alone, would clearly mean only those who survived Lavinia; and second, that the succeeding words, “ or to the descendants of their children to be equally divided between them,” are meaningless, without taking undue liberties by way of alteration, and therefore cannot qualify the preceding words, but must be rejected in construing the will, and for this reason the children of Montgomery must be excluded from the bounty of the testator. It is too clear for controversy under the decision in Reiff v. Strite, 54 Md. 303 , and other Maryland .cases, that in the absence of the words “ or to the descendants of their children, &c.”—or of any other qualifying words, ²⁷⁶ that only those children of the testator could take, who survived Lavinia, and it therefore only remains for us to determine whether this will is to be controlled by the second rule applied by the Circuit Court in deciding the case, and we have given to this question that full and careful consideration which is due not only to the interest of those concerned, but to the recognized learning and ability of the Judge,'from whose decision this appeal is taken. The construction of every will must be determined upon its own peculiar circumstances as they appear in the will itself, and therefore it is, that the mere fact that similar language has been elsewhere construed and interpreted in the light of facts there disclosed, cannot be accepted as necessarily controlling in other cases. The maxim that “ the intention of the testator, when apparent on the face of the will, must be gratified, if it be lawful to do so,” must always be invoked, when any particular clause of the will is obscurely or inaptly expressed, though when so invoked, great care is required that the privilege of construing the will, be not perverted into the privilege of reconstructing it.

In Larmour v. Rich, 71 Md. 369 , this Court expressed with much force and .clearness the manner and spirit in which this duty of construing a written instrument should be approached, saying, “ obviously, the most simple and natural way to ascertain what a testator’s or grantor’s intention was, is to read what he has written, because what he has written, was designed by him to express that intention. It is true there are many other rules of construction to which resort is sometimes had * * *. Generally speaking they are not suffered to defeat a clearly manifested intention * * *. If we lay aside, and put out of view, for a moment, these artificial rules, and read the language of the deed and will, as it would strike the mind of one unacquainted with such rules, there will be little, if any, difficulty in discovering with reasonable certainty, what the testator, or grantor, actually intended to do.

This is permissible because we are seeking ²⁷⁷ to discover what he meant, and we must therefore put ourselves as nearly as possible in his place.” In Commercial Building Association v. Mackenzie, 85 Md. 136 , the Court said : “ When a written instrument of whatever character is brought before a Court for adjudication, the first inquiry must be directed to its meaning. ■ Until this is ascertained every step in the proceeding, must be futile and useless * * *. No general rules have been devised, which are adapted to all cases, and it is not possible, in the nature of things, that any can be devised. Courts must ascertain the meaning of written instruments when it is possible for them to do so, seeking the aid of all rational methods of interpretation.” These utterances maybe properly repeated and emphasized here, as announcing the primary rule in construing written instruments; and it must be borne in mind in this connection, that “ the predominant idea of the testator’s mind when discovered, is to be heeded, as against all doubtful and conflicting provisions, which might of themselves defeat it; and that the general intent, and the particular intent being inconsistent, the latter must be sacrificed to the former.” Schouler on Wills, sec. 476. We think it is manifest, from an analysis of the will of Rev. Dr. Johns, that the predominant idea of the testator was equality of bounty to all his family, and that while he selected and designated the particular property each member of the family would receive, the scheme of his will was practically to dispose of his estate, as the law would have done if he had died intestate.

There are numerous indications, we think, of this purpose. First. While disposing of a very considerable estate, ample to have warranted an absolute devise or bequest to his wife, suitable to her needs and social station, had he deemed this the proper mode of provision, he gives her absolutely, only his dwelling, horses and carriage, all of which were specially appropriate for her personal use and comfort; and then gives her for life only, one-third of the net income of his ²⁷⁸ real and personal estate, however devised or bequeathed to his children. Second.

The library, which is so usually left intact to such one or-more of the children, as may be best qualified for its enjoyment, is bequeathed among all his children, after their mother had selected what she wished. Third. The devises to his two sons, John and Henry, being, as he states, disproportioned to the devises to Montgomery and James, he therefore required John and Henry to pay to Montgomery and James $2,000 to equalize them. Fourth.

In his codicil, having concluded that he had overvalued the lands devised to John and Henry, and had undervalued those devised to Montgomery and James, he revoked the above legacy of $2,000 because, as he said, he was desirous of doing impartially by all his children. Fifth. Both in the will and codicil, he gave to his executors full discretionary power to sell and reinvest “ all such stocks, ground-rents, &c., as may need such change, with a view to equalize the apportionments and to make just and fair portions to each of my children.” Finally. Fearing the loss by his daughters of their patrimonial estates, he made the provision we are now considering, and it seems to be plain that in this, he had a two-fold purpose, viz., first, to prevent the wasting of their estates by their husbands if they should marry, and the consequent disherison of their issue ; and second, in the absence of such issue of- theirs, to prevent the diversion of their estates from his own family.

We think he intended these portions of his estate, in any event, to go to his descendants, preferably, ato such of his descendants as traced title through his daughters, in order to preserve that absolute equality of bounty, which we have found to be the predominant idea of his will, and in the absence of issue of these daughters, then to his other descendants, no matter what degree should represent these descendants at the daughter’s death. Though the word family is not used in this will as in Taylor v. Watson, 35 Md. 534 , yet the idea of the family, we think, ²⁷⁹ pervades and permeates the four corners of the will. Here, as there, he had no idea of distinguishing between his sons living at the death of Fidelia and Lavinia, and the issue of his sons then deceased, all of whom were equally dear to him, and equally objects of his bounty, “ which he designed should flow in the broadest stream among his descendants.” Under the rule applied in the Court below, if Montgomery, Henry and James had all died before either Fidelia or Lavinia, each leaving issue, and John alone had survived Fidelia and Lavinia, but without issue, the whole estate of Lavinia, and the half of Fidelia’s estate, would have gone to John, and would have been subjected to such alienation by deed or will as he might choose, to the exclusion of every other descendant of the testator. Is it rational to conclude,