Small v. Marburg

Bryan, J., after stating the case, delivered the opinion of the Court. When Mrs. Small elected to claim her legal rights in her husband's estate, they were to be alloted to her in the same manner, and to the same extent as if the will had never been made. The title was in no way affected or impaired by any rights which could be derived from the will of the testator. As she was in all respects sui juris it was perfectly competent for her to make a valid adjustment and settlement of her claims, provided she dealt with parties who had title to the property about which they mutually contracted.

It becomes necessary then, to inquire whether the property, which she received in satisfaction of her dower, and her distributive share of personalty, was conveyed to her by persons authorized to make a good transfer of the title. She renounced everything given to her by the will, and as a consequence all devises and' bequests to her were annulled. They ceased to have any operation and effect; and it was necessary to regard them as if they had never been men ¹⁷ tioned in the will, so far as the widow’s rights were concerned. But it is proper to read the entire will for the purpose of ascertaining the testator’s meaning ; and the devises and bequests which had become inoperative by matter subsequent may serve to throw some light on the purposes, which the testator had in his mind at the time he made the will.

He intended that his wife should have the right to occupy the Mount Vernon house during her life, and when her life estate terminated, it was to be converted into money and fall into the residue of his estate. It is evident that he postponed the sale of the property to the period of his wife’s death for reasons altogether personal to her. He wished that she should have the occupancy of it; it was not his intention that it should remain a portion of his estate for any other purpose. He directed that it should be sold so soon as her occupation of it should become impossible by her death.

When she refused to accept this provision for her, and her life estate consequently vanished, are we to suppose that the sale must still be postponed until her death? If it was to be sold at the termination of the life estate, the time of sale arrived when the life estate was annulled. But we prefer to reach the result of this question by resting on the obvious intentions of the testator; he wished to retain this house and lot in his estate for the comfort and convenience of his wife, and for no other reason. He did not desire to retain it after these purposes were accomplished, or after it became evident "that they could not be accomplished.

If it be said that the testator in terms declared that the sale should take place at the death of his wife, it may be replied that in his mind the death of his wife and the termination of her life estate marked the same point of time. And it may also be said that in a vast number of cases the literal meaning of words and phrases has been made to yield to the ascertained intention of the testator ; and that this ¹⁸ will always be done when the meaning is sufficiently evident. In Clark, et al. vs. Tennison, et al., 33 Md., 93 , the Court speak of several cases “in which the Courts have, in the construction of wills, transposed or changed words, or even supplied, words omitted in the will, in order to effect the intention of the testator, where that intention is manifest on the face of the will.” And in that case where a testator had devised to his wife all the residue of his estate so long as she remained his widow, and at her death he gave it to his children, it was held that it was the plain intent that the widow should have the property no longer than during her widowhood, and that the will should be construed as giving the property to the children at the termination of the estate given to the wife, whether that should be by marriage or death. We think then that the time for the sale of the Mount Vernon house had arrived when the widow extinguished her life estate hy renouncing the benefit of the will.

Thereupon in the contemplation of a Court of equity it became personal estate, and formed part of the residuum for distribution by the executors ; in fact the conversion into personalty was complete at the time of the death of the testator, so far as the residuary legatees were concerned, although the legal estate was vested in the residuary devisees until a sale should be made. Riff and Brinkley vs. Strite, et al., 54 Md., 301 , and many other cases. The residue of the estate real and personal was devised to Latimer Small and Samuel Small, with a proviso that in case of the death of either of them, the share of the residue given to him should go to his children. The words “in case of death” import no contingency whatever.

Death is the great absolute certainty pertaining to our .existence; the time at which it may occur, being uncertain, must be considered as the contingency intended hy these words. And the period to which