Swift v. Cook

⁶⁵² Boyd, C. J., delivered the opinion of the Court. This case is before us on an appeal from the decree of the Circuit Court for Anne Arundel County overruling exceptions of the appellant to a sale made to him and reported to the Court by James M. Munroe, trustee. George H. Chard was in his lifetime seized and possessed of a farm in Anne Arundel County. His will, dated the 1st of February, 1878, after the formal parts, was as follows: “1st.

I desire my brother Robt. W. Chard to settle my estate. “2nd. After all my just debts are paid, I desire my wife, Haney E. Chard, to have and to hold the balance as long as she may live and at her death if any remain to be divided among my children by the said Haney E. Chard.” George E. Chard died in 1878, leaving surviving him his widow, Mrs. Haney E. Chard, and three daughters, namely, Mrs. Sadie Cook, Miss Lottie Chard and Miss Mary Chard. Mrs. Cook survived her husband, Henry D. Cook, and died a few year’s ago leaving eight children, all of whom are parties to the cause in which Mr. Munroe was appointed trustee to sell the property, for the purposes of partition.

Miss Lottie Chard married Warren A. Ballard and has three children. Miss Mary Chard is unmarried and Mrs. Haney E. Chard, widow of George H., is still living. By a deed dated January 10th, 1899, Haney E. Chard, widow, Lottie Chard, now Mrs. Ballard, and Mary Chard conveyed in fee simple to Sadie Cook the farm in question. Several exceptions were filed to the ratification of the sale reported-by Mr. Munroe, but all were abandoned excepting the second and third, which call for the construction of the will of George H. Chard.

The appellant contends that Haney E. Chard, the widow, took a .life estate in the lands, without power of sale, with remainder to the children of the said George H. Chard and Haney E. Chard, contingent upon their being still alive at the death of the life tenant. That the life tenant being, still alive, it ⁶⁵³ can not certainly be determined in whom the remainder will vest. While the will was doubtless not drawn by a lawyer, it expresses the evident intention of the testator—which was that his widow should have all of his property for life, without impeachment of waste, .and that after her death the remainder should he divided between his children by Haney E. Chard. It is not necessary to cite many authorities to show that the law favors the early vesting of estates, and that when the language of a will or other instrument admits of such construction, a remainder will be declared to be vested, rather than contingent.

In one of the earlier cases, in this State, which has been so frequently cited, Tayloe v. Mosher, 29 Md. 443, 457 , Judge Miller, in his usual strong way of stating propositions of law, said: “Estates will he held to be vested wherever it can fairly he done without doing violence to the language of the will, and to make them contingent there must be plain expressions to that effect, or such intent must he so plainly inferable from the terms used as to leave no room for construction.” Although it is not always helpful to cite decisions affecting other wills when the Court is called upon to construe one, it will not be out of place to refer to some of those which have decided the questions to be considered in this case. In Russell v. Werntz, 88 Md. 210 , the testator, after providing for payment of his debts and funeral expenses, and bequeathing to his son George $800 to be paid out of the proceeds of a life insurance policy, left to his. wife “all the residue of my estate, including all my property, both real, personal or mixed, to have and to hold and dispose of as she may see fil, while she remains single, and at her death or marriage, the remaining property is to be equally divided between my two daughters, Grace A. Russell and Jessie V. Russell.” (Italics ours.) The appellees contended that the widow only acquired a, life estate, with power to dispose of that interest and no more, and that her daughters took a vested interest in the remainder, while the widow contended that she took a fee, or if it be held that she acquired only a ⁶⁵⁴ life estate she had the power to convey a fee simple title in the reversion. Notwithstanding the language used in that will, the Court held that the widow only took a life estate in the real property, with remainder to the daughters. In Hoover v. Smith, 96 Md. 393 , the will left all of the property of the testator to his wife, “to have and to hold the same during her natural life, or as long as she shall continue to he. my widow.

After either of the above events the property to be sold and divided equally among my lawful heirs. The children of deceased heirs shall inherit the full portion as their parents would have done if living.” The testator left a widow, two sons, a daughter, two grandchildren who were children of a deceased daughter, and a granddaughter, Elizabeth Wolf, who was the child of another deceased daughter. Elizabeth Wolf died after the testator, but in the lifetime of the widow- It was held that the remainder to the testator’s heirs vested in them at the time of his death and the vesting was not postponed until the death of the life tenant, but only the enjoyment of the estate. It was consequently held that Elizabeth Wolf took her share of the estate by a direct gift and it passed to' her representatives.

In Roberts v. Roberts, 102 Md. 131 , the testator after bequeathing $100 to each of his two children by his first wife, and providing for payment of his debts and funeral expenses, devised and bequeathed all the rest and residue of his estate to his wife “for and during the term of her natural life, in trust for the use and benefit of herself and our children.” He authorized his wife to sell any part of the real estate which she thought proper—“the proceeds of such sale or sales to be invested upon the trusts of this will”—and to lease the real estate. He gave her authority to use so much of the principal as necessary for the support of herself and their children, or for their education