Weatherly v. Mister

Robinson, J., delivered the opinion of the Court. This cause comes up on appeal from the decree of the Circuit Court of Baltimore City, on a bill filed by the appellants against the appellees, to obtain the true construction of the seventh clause in the will of George Mister, late of said city, which reads as follows: “Seventh.' — All the rest and residue of my estate, real, personal or mixed, I give and devise to my three children, Rhoda A. Weatherly, Beverly Waugh Mister and Mary A. Mister, to be equally divided between them ; but if either of my said children should die prior to my decease, leaving no child or children living at the time of his or her death, in that event my surviving child or children shall be entitled to the said rest and residue of my estate, ⁶²⁸ and the part which may fall to my daughter Rhoda A. Weatherly, shall be held by her as her sole and separate estate, and suKject to the limitations as to her husband, andas to its further disposition contained in the third item of this will.” The third item in the will thus referred to reads as follows: ■ “Third. — I give and bequeath to my daughter Rhoda A. Weatherly, six thousand dollars in five-twenty bonds of the United States, to be her sole and separate property, free from the control of or liability for her present husband or any future husband she may have; and at her death the said bonds and their proceeds shall vest in any child or children she may have; and in case she shall die without issue surviving her at the time of her death, the said bonds and their proceeds shall vest in my children surviving her equally.” The three children named as devisees and legatees in the seventh clause of the will survived the testator, and the sole question presented by this appeal is whether Mrs. Weatherly takes under such clause in the one-third residue thus devised to her, an absolute estate instead of an estate for life with remainder over, and an unqualified estate instead of an estate for her sole and separate use. Independent of the use of the semicolon after the word “them,” no doubt could arise we think as to the proper construction of this clause in the will. Looking to the language of the clause in question, it presents the simple case of a gift of the residue to three children if they survived the testator, to two of them if two survived, and to one, if only one survived him, with the additional provision that the part which might fall to Mrs. Weatherly should be “held by her as her sole and separate property,” with limitation over to her. children in the event of her death, &c. ⁶²⁹ The appellants, however, contend that this clause is to be construed as containing two distinct and independent devises, separated by the use of the semicolon after the word “them;” and that in the event of the three children surviving the testator, Mrs. Weatherly was to take an absolute, unqualified, and unrestricted estate in the one-third residue; and that the limitation over, and restriction of the estate to her free and separate use by the latter part of the clause was only to take effect, upon the death of her brother or sister in the