Smithers v. Hooper

Bartol, J., delivered the opinion of this Court: This appeal is taken from an order of the Orphans’ Court of Dorchester county, directing distribution to he made of the estate of Doct. William Jackson, deceased, and ordering ²⁸⁴ that, in. such distribution, there be awarded to Margaret H. T. Hooper one-tenth part of the entire balance of the estate in the hands of the administrator, including the proceeds of the sale of the real estate of the deceased,'as sold by his executor, under the directions contained in his will, and charging the administrator with interest, according to statement “G,” filed in the case. The appellant contends that the Orphans’ Court erred in awarding M. H. T. Hooper one-tenth part of the entire balance of the estate, composed of proceeds of both real and personal estate, instead of awarding her only one-tenth of the personal estate on hand; and in support of this view has cited Walters vs. Walters, 3 H. & J., 201 ; McChesney vs. Bruce, 1 Md. Rep., 344 . In those cases gifts of the residue 'of the testator’s estate were construed to pass only personal property, notwithstanding the generality of the words of the gift; because, from the context, it appeared to be the intention of the testator not to include real estate in the devise. • It was held that “the generality of the words was restricted by antecedent bequests, in such a manner as to confine them to the personal estate.” In the construction of the wills in those cases, the Court was guided by the rule,, that the intention of the testator, as expressed upon the face of the instrument, must be carried out.

This, after all, is the cardinal rule of construction ; hence the interpretation of such instruments depends mainly upon the particular language employed, and but little aid can be derived from the examination of adjudged •cases, in which other wills, different in their terms and provisions, have been judicially construed. After a careful examination of the will before us, we are of opinion that the Orphans’ Court have properly construed it. There is nothing in the context to justify us in limiting the gift to Mrs. Hooper, in the eighth clause, to the personalty only. By the tenth clause, the testator directs and empowers his executors to sell all his real estate at public sale, on such ²⁸⁵ terms as they, in their discretion, may think most conducive fro the interest of all those interested therein.

If this clause had occurred in the first part of the will, there would he little room for dispute as to the meaning of the other provisions. And there is no reason for giving to it a different effect, because it is found in the latter part of the instrument. The intention of the testator must he gathered from the whole will; from a consideration of all the provisions