Smith v. Smith

Thomas, J., delivered the opinion of the Court. George W. Smith, of Kent County, Maryland, died in September, 1908, leaving a last will and testament and two codicils which were admitted to probate in the Orphans’ Court of said county. The testator was married twice. His first wife, Eliza Ann C. Smith, died in 1884, leaving two children, George Mifflin Smith, of Baltimore City, and Eliza Ann O. Smith, of Chestertown, Maryland.

By his second wife, Margaret Emily Smith, he had one daughter, Margaret Slaughter Smith, who is still under age and resides with her mother in Chestertown. The will, which was executed on the 13th day of March, 1901, after providing for the payment of his debts, and directing his executors to sell all his property, real and personal, “except specific bequests hereinafter named,” provides as follows: ⁴⁹⁷ “Item. I hold in the New York Mutual Life Insurance Company a policy on my life of three thousand ($3,000.00) dollars, this policy is in favor of my first wife, Eliza Ann C. Smith, and of my two children by her namely: George Mifflin Smith and Eliza Ann C. Smith and this sum of money with the interest due thereon they will receive under and by virtue of said policy at my death; after all my estate is converted into cash I desire that the sum of three thousand ($3,000.00) dollars, from my estate (or such sum as the said policy may pay at the time of my death) shall be set apart and invested for the use and benefit of my present wife, Margaret Emily Smith and Margaret Slaughter Smith, my daughter, and to any other child or children we may hereafter have, the income of this sum of money to be invested and held in trust, and the same paid to my wife for and during her natural life, and after her death the same is to be invested and the income thereof is to be paid to such child or children as I may leave surviving me by my said wife, Margaret Emily Smith, and when they shall respectively arrive at the age of twenty-one years, the said sum of money is to be paid to them in equal sums, share and share alike.” “Ttem. After the sum of three thousand dollars ($3,-000.00) or the sum equivalent to the value of said Life Insurance Policy from the corpus of my estate is set apart for the use and benefit of my wife, Margaret Emily Smith, and of her said child or children, I devise and bequeath the residue of my estate to be divided as follows: “One-third of my estate to my wife, Margaret Emily Smith, during her natural life, then to go to my heirs at law in such manner as I have hereafter devised their respective shares to them, two-ninths to my son.

George Mifflin Smith, two-ninths to my daughter Margaret Slaughter Smith, and I direct that the remaining two-ninths shall be invested under the order and direction of the Circuit Court for Kent County, Maryland, and the income therefrom shall be paid ⁴⁹⁸ annually unto my daughter, Eliza Ann O. Smith, for and during the term of her natural life, and from and after her death I will and direct that the corpus shall he paid to such child or children as she may leave, the child or children of any deceased child to take a parent’s share, but if my daughter, Eliza Ann O. Smith, should die without leaving any issue, then it is my will and I direct that the share so devised to her shall be equally divided among my other children share and share alike.” “Item. As it may be necessary for my wife, Margaret Emily Smith, my daughter Eliza Ann O. Smith and my son George Mifflin Smith to have immediate funds after my death, I direct my executors to pay to my said daughter and son each the sum of three hundred dollars ($300.00), payable in three, six and nine months after my death, and the sum of six hundred dollars ($600.00) to my wife and infant daughter, payable as aforesaid.” After giving his piano to his daughter Margaret; two tables, which he received from his first wife, to his daughter Eliza, and his watch and bedstead to his son, he gave all the “rest and residue!’ of his “household goods and furniture” to his wife for life, and after her death to his children, “to be divided equally among” them. By a codicil, executed the 15th of January, 1906, the testator makes the following additional provision for his daughter Margaret : “Before any division of my estate is made, I hereby bequeath the sum of eight hundred dollars ($800.00) unto my infant daughter Margaret Slaughter Smith, and I will and direct that same shall be kept intact as a trust fund until my said daughter shall arrive at the age of fifteen years, and then the same principal and interest shall be used for her education, and that no part of it shall bo used for any other purpose until my said daughter shall arrive at the age of fifteen years.” ⁴⁹⁹ He then revokes the provisions of his will requiring his executors to pay to his daughter Eliza and his son “each the sum of $300.00,” and to his wife the sum of $600.00, and in lieu thereof, after repeating’ that it may he necessary for them to have immediate funds, directs his executors to pay to his son and said daughter “each the sum of $200.00,” and to his wife and his daughter Margaret $400.00, in the manner as provided in his will. This codicil contains the further provision: “And whereas since the date of the execution of my last will and testament I have annually laid out and expended the sum of at least two hundred ($200.00) dollars for board and maintenance of my daughter Eliza Ann O. Smith (who is more than twenty-one years of age), I have determined to charge her with the sum of seventy-five dollars annually, and whatever sum of this charge may be due at the time oi my death shall be deducted from the share which my said daughter Eliza Ann C. Smith would receive under the provisions of my said will.” The second codicil was executed on the 13th of August, 1908, aud provides that his wife shall be “sole executrix” of his will.

On the 20th of February, 1909, Eliza Ann O. Smith filed a bill of complaint in the Circuit Court for Eent County against her brother, sister and the executrix and widow, for a construction of the will and first codicil, and asking the Court to determine, first, “whether” the provisions of the will relating to the two-ninths directed to be invested for the benefit of Eliza Ann C. Smith.for life, etc., “affects, includes or embraces the share or interest of Eliza Ami C. Smith in and to the policy of insurance on the life of George "W. Smith or the proceeds thereof mentioned in the fourth item of said last-will and testament, or whether the said Eliza Aun C. Smith is entitled to her share of the proceeds of said policy of insurance * * * absolutely and clear of the trust created for her portion, of her father’s estate in the fifth item of said ⁵⁰⁰ last will and testament, and if so entitled clear of the trust so created, from what date her share of the proceeds bears interest”; and, second, “Whether the charge upon the share of the estate of Eliza Ann O. Smith of seventy-five dollars ($15.00) annually made in the first codicil to the last will and testament of the said George W. Smith begins from the date of said last will and testament, namely, the 13th day of March, 1901, or from the date of the said first codicil, namely, the 15th day of January, 1906.” The bill, which also contains a prayer for general relief, alleges that the policy “was made payable to his wife Eliza A. Smith or the insured’s estate, and was taken out to secure the said Eliza O. Smith for a debt of $3,000.00 borrowed from her by the said George W. Smith”; that the proceeds of the policy amounted to the sum of $3,151.00, and that said sum was paid to the executrix on the 5th of Uovember, 1908, ' and that George Mifflin Smith has received a portion of his share of the proceeds of the policy. The answer of George Mifflin Smith admits the facts alleged in the bill. Margaret E. Smith, executrix and widow, in her answer denies that the policy was taken out to secure a debt of $3,000.00 due testator’s first wife, and that George Mifflin Smith has received a jDortion of his share of the proceeds of the policy, and alleges that $1,200.00 was advanced to him by her as a portion of his interest in the estate, with the understanding that the will would have to be construed by the Court. She admits the other averments of the bill.

Margaret Slaughter Smith, infant, answered by guardian ad litem-; a general replication was filed and evidence was taken, but the evidence was held to be inadmissible by the Court below, and is not in the record. The bill and answers do not apparently question the right of the plaintiff and her brother under the will to the proceeds of the policy, but it appears that that was the principal question discussed and considered in the Court below, and it is the one to which the bi’iefs and argument in this Court ⁵⁰¹ were mainly directed. The bill, as we have said, alleges, and the answer of George Mifflin Smith admits, that the policy was made payable to" “Eliza A. Smith or the insured’s estate.” The will recites that the policy was in favor of iestator’s first wife and his two children by her. It appears by an agreement of counsel for the plaintiff and the executrix, in the record, that the policy was, in fact, payable to the testator’s first wife, Eliza A. Smith, “if living, and if not living then to the said George W. Smith or his executors, administrators or assigns.” This agreement, however, was not filed, it seems, until after the decree of the Court below.

"Whatever may have been the terms of the policy, the object and purpose of the bill is to obtain a construction of the mil, and the question to be determined, in this connection, is, does it contain a valid bequest to the children of testator’s first wife of the proceeds of the policy? That the testator intended them to have the benefit of his life insurance cannot bo doubted, for all of the provisions of the will ar*e evidently based upon the assumption that they would receive the $3,000.00, or whatever amount was realized on the policy. But that does not answer the question. The precise inquiry is, did he intend to give them the proceeds of the policy by ids vdtt? and its answer must be found in the terms of the will.

The only parts of the will in which the policy is referred to-are in these words: “I hold in the New York Mutual Life Insurance Company a policy on my life of three thousand ($3.000.00) dollars; this policy is in favor of my first wife Eliza Ann C. Smith, and of my two children by her. namely: George Mifflin Smith and Eliza Ann C. Smith, and this sum of money with the interest due thereon they will receive under and by virtue of said policy at my death; after all my estate is converted into cash I desire that the sum of three thousand ($3,000.00) dollars from my estate (or such sum as the said policy may pay at the time of my death) shall be set apart and invested for the use and benefit of my present wife, Margaret Emily Smith, and Margaret ⁵⁰² Slaughter Smith, my daughter, and to any other child or children we may hereafter have,” etc. “After the sum of three thousand dollars ($3,000.00) or the sum equivalent to the value of said life insurance policy from the corpus of my estate is set apart for the use and benefit of my wife, Margaret Emily Smith, and of her said child or children, I devise and bequeath the residue of my estate to be divided as follows:” Here there are not only no words of gift, but the testator expressly states that the policy was in favor of his first wife and her children, and that said children would receive the proceeds “under and, by virtue of said policy" at his death. This language clearly shows that the testator did not regard the amount to be realized on the policy as a part of his estate, or attempt to dispose of it by his will, and that he treated the policy as a provision made for the children of his first wife outside and independent of his will. As he thought they would receive the amount of the policy under and by virtue of the policy, he could not have intended to give it to them by his will. The recital in the will that the policy was in favor of or payable to his first wife and her children, and that her children would receive the proceeds under and by virtue of the policy, cannot operate as a bequest by implication.

Mr. Jarman says: “Sometimes a testator shows,by the recitals in his will that he erroneously supposes a title to subsist in a third person to property which, in fact, belongs to himself Such recitals do not