Stahl v. Emery

Offutt, J., delivered the opinion of the Court. William Stahl on March 26th, 1893, executed a will containing this clause: “I give, devise and bequeath all my property, real, personal and mixed, I may die possessed of, wheresoever 'and ■wherever the same may be, to my beloved ¹²⁵ wife, Mathilda Stahl, the same to be held by her during her natural life or as long as she remains my widow, so that she may use and enjoy the income and profits thereof so long as she may live, and from and immediately after her death or marriage, the said estate is to be equally divided among our children, share and share -alike.” At that time he- had four children living, Fannie, Mathilda, William H.? and Albert. Of these, Fannie (married to Andrew Oarle) died October 20th, 1904, and left to survive her an only child, Marie (now married to Lewis J. Emery); Mathilda (married to Henry J. -Carle) died August 10th, 1902, and left to survive her an only child, Mathilda (now married to Jo-hn Miller); while William H. and-Albert -Stahl survive. The testator died August 20th, 1908, and his wife, the life tenant, died January 23rd, 1924.

Marie Emery and Mathilda Miller and their respective husbands, on the theory that they have an interest therein, filed in -Circuit Court Ho. 2 of Baltimore City their bill of complaint for the sale of certain real property included in the estate in lieu of partition, and in that bill they also ask that a deed, under which the title to two lots of ground which were part of the estate became vested in William H. and Albert 'Stahl, be set aside. The two- Stahls, William H. and Albert, in their answer to that bill denied that the complainants had any interest in the estate, and asked that the- -bill be dismissed on that ground, and that question was submitted to the court on testimony supplemented by an agreed statement of fact. The lower court determined by its decree that the estate is now vested in the two surviving children of William Stahl, William H. and Albert, and in his two grandchildren, Marie Emery and Mathilda Miller, in equal shares, and from that decree the appeal was taken. The controlling question -presented by the appeal is whether Marie Emery and Mathilda Miller have any interest in the estate which William Stahl, their grandfather, disposed of by that clause of his will, to which we have referred. ¹²⁶ The contention of the appellees is: “(1) that the language-in question does not constitute a devise to a class, and (2) if it he a devise to- a class the interests of the two- daughters, are saved to the appellees by virtue of section 326 of article 93 of Bagby’s -Code.

The appellants on the other hand contend that the devise is- to a class -and that the rule of survivor-ship applies-, and that section 326 of article 93 0. P. G-. L.. of Md. has no application to the facts of this case. In 1 Jarman on Wills (6th Ed.), p. ²³², it is said: “A number of persons are popularly said to- form -a class when they can be designated by some general name, as ‘children/ ‘grandchildren,’ ‘nephews’; but in legal language the question whether a gift is one to- a class depends not upon these considerations, but upon the mode of gift itself, namely, that' it is a gift of an -aggregate sum to a body o-f persons uncertain in number at -the time of the gift, to be ascertained at a future time, and who- are all to- take in -equal or in some other definite proportions, the -share of each being dependent for its amount upon the ultimate number of persons.” That definition of the word was approved in Dulany v. Middleton, 72 Md. 77 , and also in Re Henderson’s Estate, 161 Cal. 353 , and cited in Clark v. Morehous, 74 N. J. Eq. 658.

There is in Re King, 200 N. Y. 189 , a very careful and clear analysis -of it, in which the court says: “The exact converse of this definition is well stated by Vice-Chancellor Kindersley in the English case of Cruse v. Howell (4 Drewry, 217) : ‘If there is a bequest to- certain persons nominatim, or so described as to he fixed at the time of the gift, so that there can be no fluctuation, then, if one of them dies in the lifetime of the testator, his share lapses.’ These two- antithetical definitions clearly mark the line which must be followed in construing -the will now before the court. If the gift were to the nephews and nieces of the deceased husband of the testatrix generally, without designation, restriction, or limitation, it would be a gift to a class, because the ultimate number of the beneficiaries would have remained uncertain and incapable o-f ascertainment until the death of the testatrix. In ¹²⁷ that event the survivors would, of course, represent the class and take the whole gift. But that, as we have seen, is not this case.

The gift of the testatrix was not To a''body of persons uncertain in number at the time of the gift, to be as-certained at some future time,’ but to certain persons To described as to 'be fixed at the time of the gift.’ The bequest was to the nephews and nieces of the deceased 'husband of the testatrix who were living at the time of his death.” In 34 L. R. A. N. S. 945, in a note to the ease last cited, the editor, after referring* to the cases “sufficiently similar to render their presentation useful” in couueotiou with that ■principle, says: “'Such decisions, however, lend themselves ■to the generalization that whei*e the element of description referring* to existence at a certain time is to be taken merely ■as signifying an intention that persons corresponding to the general description, but who subsequently come into existence, should not participate in the testamentary provision, the gift is one to a class; but that where such element may fairly be taken in its ordinary descriptive signification, the gift is not to a class, but to the individuals answering the description at the time referred to.” Accepting* that definition, as sound, the question is reduced to this, did the testator by the expression “our children” mean to describe his children living when the will was executed, or did he mean that term to embrace only such persons as would answer that description at some future time. If he intended by it to refer to his children living at the time the will was executed, then the devise was not to a class, but to individuals, because their number was known and certain, but if he intended it to apply to such of his'children as might be alive at some future time, the devise was to a class, because in that event the number of persons who would take would remain uncertain until the time arrived* at which the distribution was to be made. There is nothing to he found in the four corners of the will which in any way defines, explains, interprets or qualifies the words “our children.” Unexplained and given their ¹²⁸ customary and technical meaning, they would refer to- children living at the date of the death of the testator, or the termination of the life estate. Alexander on Wills, par. 880.

And the appellant contends that since the language of the will is simple, plain and unambiguous, the intention of the testator must be ascertained from it alone, but the question is not quite so simple as that. For, as stated in Henderson v. Henderson, 64 Md. 188 , the situation of the testator, and the relations existing between him and the objects’ of his bounty, “must therefore be considered in connection with the language of the document itself in order that we may be fully enlightened in regard to the real motives and intent” by which he was controlled in the execution of the will. Because the circumstances surrounding its execution may have been such as to make it obvious that the words used, while plain enough, did not express the real intent of the testator (Jarman on Wills (6th Ed.), p. 394), but such evidence, while admissible to place'the court in the situation of the testator, could not be “allowed for the purpose of affecting the construction of a will where the language is clear and unambiguous.” Alexander on Wills, par. 113. In construing the words “our children” as used in this will we are not altogether governed by settled, definite, fixed and invariable rules, for, as said in the King case, supra, “no will has a twin brother,” and many of the cases interpreting similar phraseology turn upon circumstances peculiar to themselves-, and naturally there is some apparent conflict and much real confusion in the decisions, as to the co-nstruction to be placed upon -those or similar words.

But while that is so, there are certain rules which, while subject to exception and subject to the cardinal and controlling' principle that the intention of the testator must be given effect, are generally accepted, which are not only of assistance, but must be considered in interpreting such an expression. One is that the will “should be construed to speak and take effect as if executed immediately before the death o-f the testator.” 28 R. C. L. 234. Another is that the word “childre"simpliciter ¹²⁹ “is a 'technical word, primarily one of purchase, not of limitation, and imports only immediate descendants.” A third is that where the gift is to a class', the objects composing the class take as joint tenants and not as tenants in common, and hence it is subject to the incident of survivorship. The application of these rules' has been under discussion in this Court in a number of cases involving facts not wholly dissimilar to those found in this ease, to several of which we will refer.

In Merowitz v. Whitby, 138 Md. 222 , property was given in trust for the children of a niece of the testatrix to be equally divided when the youngest child reached the age of eighteen years, “share and .share alike between said children or those surviving.” One of the children died after the tesr tatrix, but before distribution. In holding that a child of such deceased child was not entitled to share in the distribution, this .'Court said: “It is true that there are instances to be found in the books where the term 'children’ has been so broadened as to include grandchildren, but these will be found to