Taylor v. Watson

Bowie, J., delivered the opinion of the Court. Pere Wilmer, Esq., late of Queen Anne’s county, Md., on the 15th of August, 1860, made his last will and testament, duly executed to pass real estate, and therein, “inter alia,” devised and bequeathed as follows: “ Item. I give, devise and bequeath to my nephew, Pere Wilmer and his heirs, in trust for my nephew, Henry Wilder, all the lands, etc.; and it is my will, that my said ⁵²¹ nephew, Pero Wilmer, hold all the said lands in trust for the use and benefit of my nephew, Henry Wilmer, during the natural life of the said Henry, and that he receive the rents, issues and profits thereof and pay the same for the support of the said Henry Wilmer and his family; and upon the death of the said Henry, I give and devise the same lands to his children ánd their heirs equally, share and share alike — to be held, however, by my nephew, Pere, in trust for their separate use and benefit as aforesaid; and it is my will, that upon the death of my said nephew, Henry Wilmer, leaving his wife, Jane Wilmer, that she shall have her dower in said lauds during widowhood, as if the same had not been left in trust.” At the execution of the will, Henry Wilmer, cestui que use, had five children, Margaret Taylor, (wife of George Taylor, and mother of Glendora, the appellant,) Mary Watson, wife of J. G. Watson, Catherine P. Brice, wife of James Brice, Fannie C. Wilmer, and Wm. Henry Wilmer.

Margaret Taylor died the 15th of November, 1860, leaving the appellant, born in October, 1859, her only surviving child or descendant. The testator made a codicil to his will on the 5th of January, 1864, modifying it in certain items not material to this cause, and ratifying and confirming the rest, and died in March, 1866, leaving Henry Wilmer, his nephew, and his children, Mary E. Watson, Catharine P. Brice, Fannie C. Wilmer and William H. Wilmer, surviving him. Margaret Wilmer, mother of Pere, died in the summer of 1864; Henry Wilmer, the cestui que use, died in January, 1868, leaving Jane his wife, and the four children above named, surviving him. A bill having been filed in the Circuit Court for Queen Anne’s county, in July, 1868, by the appellees, against the appellant and others, for the partition of the lands described in the above clause of the testator’s will, the question arose, whether the same should be divided among the four surviv ⁵²² ing children of Henry Wilmer, or into five parts — Glendora Taylor taking a child’s part in right of her mother.

The Court below decreed, that Mary E. Watson, Catharine P. Brice, Fannie C. Wilmer and William H. Wilmer, are seized of legal estates as tenants in common, in fee, in equal shares, of all the lands and tenements, etc., subject, however, to the dower in said lands of said Mary Jane Wilmer, mother of said Mary, Catharine, Fannie and Wm. H. Wilmer; and that the said Glendora Taylor has no estate or interest in the lands in question, etc.; from which decree this appeal is taken. It is urged on behalf of the appellant, that there is no reason to be gathered from the will itself, or any evidence in the cause, why the child of the deceased niece should be excluded from the share her mother would have been entitled to if she had survived; but, on the contrary, every reason to suppose the testator desired and intended to include her in his bounty; that, it appears from the will and testimony, the testator, at the date of the will, had two nephews, two nieces, one grand-nephew, (the son of a deceased niece, Mary Elizabeth,) and also four great-neices, and two great-nephews, (children of a deceased niece, Fannie,) to all of whom he devised portions of his estate. That, in the devises to the children of deceased nephews and nieces, terms were used which would have secured the estate to their issue or descendants, in case the great nephews or nieces had died before the testator, showing the testator intended that his bounty should be enjoyed by all their descendants.

Conceding that the terms employed in the particular clause of the will, under which the parties claim, generally apply to the children living at the death of the testator, and such as might be born before the period of distribution, they insist the authorities show, these rules of construction are controlled by the general intent of the devisor. The appellees, relying upon the language of the particular devise in question, and the authorities in which the same, or ⁵²³ equivalent terms are construed, contend that all the children of Henry "Wilmer, not living at the testator’s death, and their issue, are excluded from participation in the benefits of the devise; that the devise is to a fluctuating class, wherein no lapse can occur, while any of the class remain, so that it is not within the provisions of Article 93, section 304 of the Code, and the ratification of the will, by the codicil, was a re-publication in law. For some purposes, a will is considered to speak from its date or execution, and for others, from the death of the testator; the former, being the period of the inception, and the latter, that of the consummation of the instrument. 1 Jarman on Wills, 292. It is a general rule, that a will speaks from the death of the testator, and not from its date, unless its language, by a fair construction, indicates a contrary intention.

Canfield vs. Bostwick, 21 Conn., 550 ; Gold vs. Judson, 21 Conn., 616 . “The will also was held to speak from the death of the testator in reference to gifts to classes, or fluctuating bodies of persons; as to children, descendants, or next of kin, which apply to persons answering the description at the death of the testator, irrespectively of those to whom the description was applicable at the date of the will, but who subsequently died in the testator’s life-time.” 1 Jarman on Wills, 299, (287 in mar.) All the authorities we have consulted, establish the proposition that the word “children” is to be construed as the “immediate offspring,” and not inclusive of “grand-children,” unless where there are no children, or necessary implication requires it. 2 Jarman on Wills, 70, (in mar.,) and authorities in note 1; 2 Wms. Ex’rs, 802. Sir Wm. Grant said, in Orford vs. Churchill, “ he never knew an instance where there were children, to answer the proper description, that grand-children were permitted to share along with them.” 3 Veas. & Beam., 59; 2 Vern., 107; 4 Ves., 692; 10 Ves., 195, cited in 2 Wms.

Ex’rs, 802. ⁵²⁴ In the present case, there being four children surviving, to answer the description and gratify the terms of the will, there is no room for implication or enlarging the words of the will by construction, as far as these terms of description are involved. We have proceeded thus far, upon the hypothesis, that the clause of the will before cited, devising the lands, etc., upon the death of Henry, to “ his children, and their heirs equally, share and share alike,” contained the key to the devisor’s mind, and was to be construed technically. The will however must be construed as a whole. The intention of the testator is to be gathered from all its provisions, developed by the light of surrounding circumstances.

The Court must put themselves in the place of the party making the instrument. 1 Greenleaf’s Evidence, sec. 287. The testator appears to have been possessed'of a large real and personal estate. His heirs apparent' and next of kin, were nephews and nieces, and the children of deceased nephews or nieces, for all of whom he manifests an anxious solicitude to make liberal provision, and towards whom, in legal parlance, he stood “in loco parentis.” It is a familiar, well settled rule of construction, that the intention of the testator is to be collected from the whole will, “ ex visceribus testamenti,” so as to leave the mind quite satisfied about what the testator meant. Where there is a manifest general intent, the construction should be such as to effectuate it, though by that construction the particular intent may be defeated.

Technical words are presumed to be used in the sense which the law has appropriated to them, unless the contrary appears. But where the intention of the testator is plain, it will be allowed to control the legal operation of the words however technical. 6 Cruise’s Dig., Tit. Devise, secs, 3, 4, 6. These canons of construction were adopted, illustrated and exemplified by this Court in the case of Chase vs. Lockerman, 11 G. & J., 205 . ⁵²⁵ The main subject of consideration was the residuary clause distributing a large portion of the testator’s property in these words, viz: “ The residue, etc., to be equally divided by them (his executors) amongst my children, share and share alike, and paid to each of them for the use of their respective children, and by each of them so applied.” At the execution of the will, and at the testator’s death, there were two of the children who had no issue, and it was contended the fund should be divided amongst those only who had children.

Eeferring to this clause, the Court said: “ From the terms of this bequest, it is, yve think, most apparent that equality to each of his children, Avas the governing motive of the testator, and such ought to be the construction given to his will, if it can be made compatible Avith the import of the language he has used. Where the testator stands in the relation of parent, a bequest to children generally Avill be presumed, in legal construction, to embrace all Avho answered that description at the period of his death. A Court of Equity is ahvays solicitous to adopt and enforce such a construction, because it is conformable to the dictates of nature, and in accordance Avith the best affections of the heart.” Quoting, they proceed — “In 2 Wms. on Ex’rs., 797, speaking of bequests to children in a class, the author says, “generally speaking, every person Avho at the time of the testator’s death falls within the described class of children, will be entitled: But Avhere it appears from express declaration, or clear