Vogel v. Turnt

Boyd, C. J., delivered the opinion of the Court. Philip Rudolph Vogel, Sr., died in Baltimore City on March 10th, 1907, leaving a last will and testament which was executed September 23rd, 1901. When he made the will he had three sons living, Philip R., Charles W. and George P., and one daughter, Kate Margaret Turnt, wife of Richai'd Turnt, but two months before his death! his daughter died; In the first item of the will, the'testator stated that he had loaned his son Philip $10,000 and his daughter Kate $3,000, none of which had been repaid to him, and then said: “And whereas, talcing into consideration the present needs of my said^son, Philip Rudolph, and my said daughter, Kate Margaret, and their families, and desiring to make prevision for my two younger children, without injustice to any of my said four children; now, therefore, I give,” etc. He then gave-$5,000 to each of his two sons, Charles W. and George P., and made those legacies chargeable upon the whole of his estate owned by him at the time of his death, without reckoning therein the principal or interest of the sums his son Philip and his daughter and her husband had had, concern ¹⁹⁵ ing which he said: “all of which I hereby forgive for the reasons aforesaid.” By the second item, he left to his daughter, her heirs and assigns, absolutely, real estate and ground rents mentioned and described in two deeds referred to, “After the said two sums of five thousand dollar's each (in all ten thousand dollars) have been deducted, and not beforej” and concluded that item by saying: “To equalize the share of my said daughter Kate according to my desire and for the reasons aforesaid; all the share of my said daughter Kate to be held by her absolutely as if she were feme sole." The third item, begins by saying: “After the first and second items of this my will as hereinbefore given, devised and bequeathed have been deducted, and not before,” and he then gave the residue of his estate to his “four children to be equally divided between them, share and share alike, their several and respective heirs, personal representatives and assigns, absolutely forever.” Then in the fourth item it is said: “And for as much as it may be necessary to sell real estate to pay the legacies and make the division aforesaid, I hereby authorize my executors to sell all and any part of m.y real estate (the real estate mentioned in the second item alone excepted), and convert the same into cash,” etc., and by the fifth item he appointed his executors. The executors and his three sons Philip R., Charles W. and George P. Vogel, and their respective wives, filed a bill in equity against Richard Turnt, the husband of the testator’s daughter, in which they prayed for a construction of the will, that the rights of the several parties to the legacies and bequests under the will be fixed and determined and that the executors be instructed as to the same, and also for general relief.

Richard Turnt filed an answer, in which he averred that under the terms of the will an estate in the property bequeathed to his wife vested in her, and that in consequence of her having predeceased the testator, he was entitled to taire such property, as her surviving husband. Some testimony was taken in which the dates of the deaths of the te% ¹⁹⁶ tator and the daughter were proven, together with some other matters. It is admitted that, the daughter died intestate, without leaving any children or descendants. The Court below passed a decree: (1) assuming jurisdiction and control 'over the administration and settlement of the estate; (2) declaring that the devise, legacy and bequest to Mrs'.

Tumt did not lapse or fail of taking effect by reason of her death in the lifetime of the testator, but that they have the same effect and operation in law to transfer her right and interest in the property mentioned in the will as if she had survived the testator; (3) directing that distribution,of her share is to be made as follows: “The personal estate to her personal representative, appointed or to be appointed according to law, one-half thereof to be apportioned to her said surviving husband; -her real estate• interest, to the extent of a husband’s one-third thereof, to be apportioned to her said husband;” (4) requiring the executors to render a full and just inventory and account of the estate, real and personal, to the Court; (5) referring the case to an auditor and master; and (6) ordering the costs to be paid out of the estate. From that decree this appeal was taken by the plaintiffs. The theory of the appellants is that the intention of the testator, as shown by the will and such surrounding circumstances as may be considered, was that the devise and bequest to Mrs. Turnt were not to take effect unless she survived the testator. The appellee relies on sec. 320 of Art. 93 of the Code (1904) which provides that: “No'devise, legacy o.r bequest shall lapse or fail of taking effect by reason of the death of any devisee or legatee * * * in the lifetime of the testator, 'but every such devise, legacy or bequest shall have the same effect and operation in law to transfer the right, estate and interest in the property mentioned in such devise or bequest as if such devisee or legatee had survived the testator.” It must be admitted that the language of that statute is very broad, but it is contended that the will itself shows an intention on the part of the testator that his daughter’s share should not be controlled by the statute.

It is said ¹⁹⁷ in 18 Am. & Eng. Ency. of Law, 758, that: “Statutes for the prevention of lapses are intended, not to defeat the will, but to supplement it, and ought not to control if it he inconsistent with the will to have them control.” It must he conceded that when a testator manifests an intention that the beneficiary named by him shall take, and not those who would otherwise take by virtue of such a statute as ours, the statute will not control. In Helms v. Franciscus, 2 Bland, 560 , it was said that: “If a legacy he so given, that the legatee’s right depends on his being alive at the time fixed for its payment * * * the legacy is lost,” and in Dulany v. Middleton, 72 Md. 74 , the terms of the will were recognized as controlling, although they were so clear thát there was little room to doubt them. Other cases might he cited to sustain that doctrine, but as was also said in 18 Am. & Eng.

Ency. of Law, 758, immediately following the above quotation: “But it must be presumed that the testator made the will in view of the statute and that he intended to have the statute prevail, unless the contrary appeared!. The burden of showing the contrary is on the party claiming that the statute does not apply, and this burden is not lifted when it is made to appear that the legacies were prompted by personal regard for the legatees, for the fact that they were so prompted is not at all inconsistent with an intent to have them go to the descendants of the legatees in case the legatees themselves die before the testator.” The language of. the will relied on by the appellants is by no means sufficient to overcome the effect of the statute. Eor example, when the testator said what we have quoted above from the first item, and then left the legacies of $5,000 to each of the two younger children, there was certainly no indication of his' intention to limit such gifts as he afterwar*ds made to his daughter to her enjoyment of them. On the contrary he was taking into consideration the present needs of his son Philip and his daughter, “and their families.” The only family she had was her husband — the very person the appellants now seek to exclude.

So when he gave her, “her heirs ¹⁹⁸ and assigns absolutely” tbe real estate and ground rents mentioned, and concluded with “all the share of any said daughter Kate to be held by her absolutely as if she were a feme sole” he did no more than the Act of 1898, Oh. 457 (now sec. 4 of Art. 45 of the Code) does. That says: “Married women shall hold all their property of every description for their separate use, as fully as if they were unmarried, and shall have all the power to dispose of by deed, mortgage, lease, will or any other instruments that husbands have to dispose of their property, and no more.” The terms of the will strengthen, rather than weaken, the position taken by the appellee. If the testator had desired to exclude his daughter’s husband from the enjoyment of what he devised and bequeathed to her, he could have left her share for life, or- could have put it in trust, and very easily have accomplished such purpose. But he not only did not adopt that course, but he forgave his daughter and her husband the debt they owed him, and the evidence, taken by the appellants, shows that he knew that his daughter was dead and that he was .gratified when he heal’d that her body had been taken to Baltimore and buried in his lot.

So if we make use of the evidence offered by them, it rather tends to show the very opposite of their contention, in so far as it has any effect on the question. Indeed the will itself indicates a clear intention to give the testator’s daughter the ground rents referred to, and to make her one of the residuary legatees and devisees, and there is an entire absence of a desire to exclude her husband, or any other person who might by- law or otherwise become interested in. the property left her. Bor is there any difficulty-about the decisions cited by the appellants. In Craycroft v. Craycroft, 6 H. & J. 54 , the testator- devised the lands to his three sons, in joint tenancy.

One of them died before the testator, and the Court held, what must be perfectly clear, that the survivors took. It was held that it was not a lapsed devise, and hence the statute on that subject had no application. In Billingsley v. Tongue, 9 Md. 575 , our predecessors held that the statute applied to ¹⁹⁹ lapsed devises and legacies, and not to those which were void — determining the law of this State to be that if the devisee or legatee is dead at the date of making the will, the devise or legacy is void. Of course there is no doubt that if an attempted devise or legacy is void, it is not saved by this statute, which was only intended to give effect to those which were valid when made, and not to make valid those which were originally void.

Other similar case's might be cited, but they do not reach the question involved. As the testator left real property to his daughter and also made her residuary legatee, and the decree deals with both personalty and realty, we will consider the two classes of property separately. Eirst, as to the personalty. We do not understand why the decree, in providing for the distribution of the daughter’s share under the will declared: “The personal estate to her personal