Suman v. Harvey

Thomas, J., delivered the opinion of the Court. Mrs. Rose A. Harvey, of Baltimore City, died in August, 1909, seized and possessed of a large real and personal estate, which she disposed of by last will and testament as follows : “After the payment of all. my just debts and funeral expenses, I give,- grant, devise and bequeath all my property and estate, of whatsoever kind, and wheresoever situate, to my executors hereinafter named, and I direct that all my said property and estate shall be converted into cash as soon as conveniently may'be after my decease, without making a sacrifice thereof, and for that purpose I hereby authorize and empower my said executors, and the survivor of them, to sell and dispose of all my personal property and real estate, including ground rents, at public or private salé or sales, for ²⁴³ such price or prices, and upon such terms and conditions as to them may seen best, or to the survivor of them; and to grant and convey the real estate and ground rents to the purchaser or purchasers thereof, his, her or their heirs and assigns, free from all liability for or on account of the application of the purchase money. And I further direct my said executors, and the survivor, from time to time, as to them seems best, as my estate shall be converted into cash, to distribute the proceeds thereof among my heirs at law and next of kin, who may be entitled thereto under the laws of Maryland.” After the will had been admitted to probate in the Orphans’ Court of Baltimore City, and letters testamentary had been granted to James W. Harvey and the Safe Deposit and Trust Co. of Baltimore, the executors named therein, Lula W. Suman, assignee of Caroline E. Suman and Sophie J. Day filed a bill in Circuit Court No. 2 of Baltimore City, against the executors and Lewis W. Suman, Amelia Boyd, Henrietta Watts, Barbara O. Gettier, Charles E. Wells and William R. Suman, in which, after stating that Mrs. Harvey died leaving said will and seized and possessed of a large real and personal estate, and that she acquired a part of the real estate by inheritance from her father and brother and the balance by purchase, they allege that the testatrix left as her nearest relatives, “four first cousins, namely: Amelia Boyd, Henrietta Watts, Barbara O. Gettier and Charles F. Wells,” and four children of another first cousin, Caroline E. Suman, deceased, namely: Sophie J. Day, one of the plaintiffs, and Caroline E. Suman, assignor of Lula W. Suman, the other plaintiff, and Lewis W. Suman and William R. Suman; that they are “advised and therefore allege” that under the Maryland statutes of descent and distribution, “there is no representation among collaterals be.yond the children of brothers and sisters of the deceased but that said statutes have no application to the provisions of ²⁴⁴ said last will and testament.” That by a proper construction of the terms of said will as well as by virtue of the declaration of the said testatrix, “that it was her intention to leave her estate, so that the aforesaid children of the said Caroline E. Suman, the elder, would take the share their mother would have taken if living,” the plaintiffs are entitled to share in .the distribution of the estate. After suggesting several constructions of the will, the bill then proceeds as follows: “Your oratrices further show that the testatrix fully intended to and supposed she was providing by her will for the children of Caroline E. Suman, the elder, exactly the same interest the said Caroline E. Suman wo-uld have taken as an heir at law and distributee of said Rose A. Harvey, had said Caroline E. Suman, the elder, been living at the time of the decease of said Rose A. Harvey, and had the latter died intestate.

But your oratrices show that through the agencies of some one or more persons, unknown to your oratrices but intending to secure by the expressions found in said will some benefit to themselves and others to the exclusion of your oratrices, the said Rose A. Harvey was misled into believing that the language in said will did in fact provide for the children of said Caroline E. Suman, the elder, as aforesaid. That your oratrices are unable to aver with any greater certainty the persons or instrumentalities through which the said result was accomplished, as the same is within the peculiar knowledge of the defendants, or someone or more of them and can only be obtained from answers and evidence and a discovery thereof from the defendants. That in consequence of the aforesaid facts, your oratrices are advised and therefore allege that they are entitled to have this Court treat the parties ostensibly entitled under the language of said will as trustees for the children of said Caroline E. Suman, the elder, to the extent of the interest, as aforesaid, that the said Rose A. Harvey, intended to confer upon them by the language of said will and testament,” etc. ²⁴⁵ The prayer of the bill is for a construction of the will; that a trust “may be declared to exist in favor of the said children of Caroline E. Suman, the elder,” and that the “defendants may be required to make discovery of all the matters and facts pertaining to the making” of said will, etc. The executors and the four first cousins of the testatrix demurred to the bill, on the grounds: (1) that it does not state such a case as entitles the plaintiffs to any relief against them, and (2) that it does not appear from the bill that the plaintiffs have any such interest in the estate as entitles them to the relief prayed, and the appeal in No. 11 Appeals is from the decree of the Court below, sustaining the demurrers and dismissing the bill. On the 11th of.

November, 1909, the executors filed a bill in said Court against the said first cousins of the testatrix, the husband of Mrs. Watts, and any unknown heirs or next of kin of the testatrix, setting out the provisions 'of the will, giving a statement of the personal and real estate left by the testatrix, showing that she acquired a part of the latter under the will of her father, a part by inheritance from her brothers and that she purchased (bought) the balance, and alleging that to the best of their “knowledge, information and belief the nearest relatives of said testatrix, living at the time of her death, were her four first cousins, the defendants Amelia M. Boyd, widow of James Boyd, deceased, Mary Ann Henrietta Watts, wife of Benjamin Watts, Barbara P. Gettier, widow of John Gettier, deceased, and Charles F. Wells.” The plaintiffs further state: “That doubts have been suggested as to the true construction of said will, as to how the beneficiaries among whom the proceeds of said estate is to be divided by your orators shall be ascertained; especially as to whether such distributees shall be ascertained in whole or in part, accoi’ding to the laws of this State regulating the descent of real estate, or according to the laws regulating the distribution of personal property; the real estate whereoi ²⁴⁶ said testatrix died seized having been all acquired, so far as your orators have been able to ascertain, by purchase or by descent ex parte paterna, and not by descent ex paa'te' materna; and the law defining the heirs of a decedent for real estate making, as your orators are advised, a distinction with respect to property so acquired in favor of paternal relatives as against maternal relatives in equal degree, which distinction does not obtain in the statutes defining the next of kin for the distribution of personal property.” The bill then prays that the Court may assume jurisdiction; that the will may be construed; that the estate may be distributed under its direction, and for an order of publication against any unknown heirs or next of kin of the testatrix,” etc. To this bill Lewis W. Suman, a son of Caroline E. Suman, deceased, who was a first cousin- of the testatrix, filed an answer and a cross-bill, in which he admits that the nearest relatives of the testatrix, living at the time of her death, were her four first cousins, Mrs. Boyd, Mrs. Watts, Mrs. Gettier and Charles F. Wells, but alleges “that of all the first cousins the” testatrix “was most attached to the said Caroline E. Suman;” that about ten years ago, when the testatrix was supposed to be at the point of death, she stated to Caroline E. Suman that she did not intend to make a will, that “the law disposed of her property in the way in which she wanted it to go, and that Mrs. Suman and her children would get their share;” that some years after Mrs. Suman’s death, when' the testatrix again stated that she did not intend to make a will, and that Mrs. Suman’s children would take the share their mother would have taken, she was told that they would not take anything unless she made a will, and she then declared “she would make a will whereby they would get their mother’s share,” and that the will in question “was made for the purpose of carrying into effect the intention of the testatrix in this respect.” The answer and cross-bill then make the same allega ²⁴⁷ tions contained in the bill filed by Lula W. Suman and Sophie J. Day, which we have already set out, and further' allege that the testatrix “up until the time of her decease provided for Caroline E. Suman,” the daughter of Caroline' E. Suman, deceased, who had no means “outside of” the support so provided by the testatrix; that the ties of affection existing between the testatrix “and the said Caroline E. Suman, the elder, were of the strongest character,” and that the testatrix “manifested her affection not only in providing for the said Caroline E. Suman, the younger, but also at times assisted” the said Lewis W. Suman, “who was also without any resources, and had a wife and four young children dependent upon him;” that the brother and other sister of the said Lewis W. Suman have only small incomes, and that the testatrix never knew the said Charles E. Wells, who “is a man of great wealth,” and resides in Pittsburg, Pennsylvania. The prayer of the cross-bill is the same as the prayer of the bill filed by Lula W. Suman and Sophie J. Day. The plaintiffs, executors, filed a motion to strike out the appearance entered for Lewis W. Suman, and said answer and cross-bill filed in his behalf, upon the following grounds: (1) Because, “ as appears from said answer, the said Lewis W. Suman is not an heir at law or one of the next of kin of the said Rose A. Harvey, nor a beneficiary under her will.” (2) “Because no leave of Court for such intervention was given.” (3) “Because neither said answer nor the cross-bill-filed therewith show that said Lewis W. Suman has any such interest in the subject-matter of this cause as would entitle him to intervene.” The Court below granted this motion, and ordered the answer and cross-bill to be stricken from the files, and the appeal in No. 28 Appeals is from that order. Testimony was taken under the bill filed by the executors^ and the Court below decreed that Mrs. Boyd, Mrs. Watts, Mrs. .Gettier and Charles E. Wells are the only heirs at law. and next of kin of the testatrix, and that they are entitled to ²⁴⁸ the proceeds of sale of the personal estate, and reserved for further determination the question of their respective rights in the real estate or proceeds of' sale thereof.

Thereupon, upon a petition filed in the Court below, Christina Johanna Hettinger, the appellant in No. 51 Appeals, and a daughter of another deceased first cousin of the testatrix, was made a party defendant in the case in order that she might enter an appeal from said decree. The construction of the will, so far as the questions presented by these appeals are concerned, would seem to be free of difficulty. The testatrix directs her executors to convert all her estate, consisting of real and personal property, into cash, and to distribute the proceeds thereof among “my heirs at law and' next of kin, who may be entitled thereto under the laws of Maryland.” The gift is to those who were, at the time of her death, her heirs at law and next of kin according to the laws of Maryland, and only those answering this ■description are entitled to share in the distribution of the estate. It is said in 2 Jarman on Wills, star page 905: “Like all other legal terms, the word heir, when unexplained and uncontrolled by the context, must be interpreted according to its strict technical import; in which sense it obviously designates the person or persons appointed by law to succeed to the real estate in case of intestacy.

It is clear, therefore, that whex*e a testator devises real estate simply to his heix*, or to his heir-at-law, or his right heirs, the devise will apply to. the persoxx or pex-sons answering this description at his death, and who, under the statxxte regulating the law of inheritance will take the property ixx the character of devisee, and not, as forxnerly, by descexxt.” In Hoover v. Smith, 96 Md. 393 , the testator devised and beqxxeathed all his property, “x*eal, personal and mixed,” to his wife for life, or so long as she continued to be “his widow,” and directed that after her death or max’riage the property shoxxld be sold, and the px’oceeds “divided equally axnong my lawful heix*s.” In ²⁴⁹ that case Judge Boyd said: “In 15 Ency. of Law (2nd ed.), 322, it is said: ‘A devise to heirs, whether to ones own heirs or to the heirs of a third person, designates not only the persons who are to take, hut the manner and proportion in which they are to take. Where there are no words to control the presumption, the law presumes the intention to he that they take as heirs would take hy the rules of descent,’ and again it is there said: ‘It is well settled that a gift to the heirs of one will he construed as referring to those who are such at the time of the ancestor’s death.’ If then we adopt the ordinary meaning of the term used hy the testator (lawful heirs), we find that he presumably intended that those who would he entitled to his real estate at the time of his death should get the benefit of the proceeds of sale. * * * So reading the will thus far, we find the testator left his property to his wife for life, or so long as she remained unmarried, and after her death or marriage to a class of persons whom he designated hy the terms which the law says means those upon whom the law casts his real estate immediately upon his death.” In Dove v. Tarr, 128 Mass. 38 , cited in support of the text in 15 Ency. of Law, supra, the Court says: “A devise to ‘heirs,’ or ‘heirs at law,’ is always construed as referring to those who are such at the time of the testator’s death unless a different intention is plainly manifested hy the will.” See also, Minot v. Tappan, 122 Mass. 536 . In 2 Jarman on Wills, the author says, on star page 953: “A devise or bequest to next of hin creates a joint tenancy in the nearest blood-relations in equal degree of the propositus; such objects being determined without regard to the Statutes of Distribution,” and, on star page 954: “But a reference to the statute, whether express, or implied by mention of intestacy, will admit all kin within the statutory limit. And if a testator describes the objects of gift by express reference to the statute, as next of kin under or according to the statute, and does not expressly state how they are to take, they take ac ²⁵⁰ cording to the mode and in the shares directed by the statute.” The same rule is stated in 16 Am. and Eng.

Ency. of Law (1st ed.), 705, where it is further said: “The term 'next of kin’ has reference to the death of the ancestor, and those who are entitled to take under that term are to be ascertained at the death of the ancestor.” According, therefore, to the natural meaning of the terms employed, the testatrix intended her estate to go to those who, at the time of her death, were, under the Maryland laws of descent and distribution, her heirs at law and next of kin. There is nothing in the will to indicate that the testatrix intended any other person or class of persons to share in the distribution, and the fact that she was fond' of her deceased first cousin, Caroline E. Suman, and the further fact that she manifested affection for some of her children by contributing during her life to their support, are not sufficient to control the clear and unambiguous terms of her will. Nor would the declarations of the testatrix, referred to in the hill filed by Lula W. Suman and Sophie J. Day, and in the answer and cross-bill of Lewis W. Suman, be admissible in evidence to show that she intended the children of Caroline E. Suman, deceased, to take a part of her estate. In the case of Walston v. White, 5 Md. 297 , the testator gave the appellant all his lands “lying 'on the south side of Beaver Dam Branch.’ ” The Court held that this language was too explicit to allow of doubt as to his intention, and that the only difficulty arose from the fact that the evidence showed that there was a difference of opinion as to the true location of the stream.

In answer to the contention of the appellee that this item of the will would be gratified by giving the appellant those portions of “Parson’s Outlet which lie southwardly of Beaver Dam Branch, below the forks,” Chief Judge Le Gbaud said': “This undoubtedly is so if those portions of Parson’s Outlet be all the lands which the testator owned which are south of the branch; but if they ²⁵¹ are not all, then they would not gratify the requirement of the second item of the will. But we have no doubt about the right of the plaintiff to introduce evidence to show the true location of the lands and of the branch. The rule is this: where the language of the testator is plain and unambiguous such language must govern, and, therefore, extrinsic evidence is inadmissible to show that he meant something different from what his language imports; but any evidence is admissible, which, in its nature and effect, simply explains what the testator has written; in other words, the question in expounding wills is not what the testator meant as distinguished from what his words express; but simply what is the meaning of his words. And extrinsic evidence, in aid of the exposition of his will, must he admissible, or inadmissible with reference to its bearing upon the issue which this question raises.

Wigram’s Rules of Law, 9. So again, proposition fifth of the same author, which is, that, ‘for the purpose of determining the object of a testator’s bounty, or the subject of disposition, or the quantity of interest intended to be given by his will, a Court may inquire into every material fact relating to the person who claims to be interested under the will, and to the property which is claimed as the subject of disposition, and to the circumstances of the testator, and of