Wahl v. Brewer

Roberts, J., delivered the opinion of the Court. The appeal in this case is taken from an order of the •Circuit Court for Baltimore City, sustaining exceptions of certain of the appellees to the ratification of Auditor’s Account A filed in this cause. The real question, however, ²⁴¹ which it is sought to have this Court determine, arises out of the proper construction of the fifth clause of the last will of John M. Wahl, Sr. This question is presented in the following manner: Richard Hentschell filed his bill of complaint in said Court against the appellant and appellees as defendants, to redeem a ground rent, he being the owner of the leasehold estate, the reversion being part of the-estate of John M. Wahl, Sr., deceased, which passed by" his said will. The answers to the bill admit the plaintiff’s', right to redeem, and the Court so decreed.

In pursuance-of the decree the plaintiff paid into Court the sum of five hundred dollars and costs, in extinguishment of said ground, rent. The case being referred to the Auditor to state am account of the proceeds of sale, he allowed therein to John M. Wahl, Jr., a son of said testaor, the one-fifth of the one-sixth of- the balance remaining for distribution. This allowance was excepted to on the ground that he was not entitled to the one-fifth of the one-sixth share of the net proceeds of the purchase money, because the same belonged to the heirs at law of the deceased son of Marie Brewer, who are the children by a former marriage of James R. Brewer, the surviving husband of the said Marie Brewer. This is the only question which the appellant seeks to have passed upon by this Court, and it is the same which the Court below refused to determine.

To a proper understanding of the question, it will now be necessary to refer to that portion of the will of the testator in controversy, which is the fifth clause. By this provision the residue of the estate is given to his five children and his granddaughter, Marie Brewer, equally, the shares to the daughters and said granddaughter to be for their lives only, and then follows this language: “And, immediately after the cjeath of any of my said daughters or my said granddaughter, Marie, I give, devise and bequeath such share or shares to any child or children of such deceased daughter or daughters, or said granddaughter, Marie, or the descendant or descendants of such deceased daughter or daugh ²⁴² ters, or granddaughter, Marie. In the event of any my daughters or granddaughter, Marie, dying without leaving child or children, or descendants of child or children, then I give, devise and bequeath the share or shares of such daughter,'daughters or granddaughter, Marie, dying without issue, to my other children or their descendants, to take per stirpes and not per capita.” The granddaughter survived the testator, and shortly thereafter dying, left surviving her a son, who survived his mother but a short while, and died when about fourteen months old. Shortly after the filing by Hentschell of his bill to redeem, Annie R. Wahl, the widow of the testator and the ■ life-tenant, conveyed, to the appellant