Weller v. Kolb

Constable, J., delivered the opinion of the Court. This is an appeal from a decree construing the will of Daniel Kolb. There are but two questions involved: (1) Did the title of the remainderman vest at the death of the testator or1 was the time of the vesting deferred until the death of the life tenant? (2) Did the Court have jurisdiction to appoint trustees to sell the property?' Daniel Kolb died in the year 1882 leaving a last will and testament and a codicil thereto.

The only portions of the will and codicil here involved are as follows: ²²³ “Second, I give, devise and bequeath unto my sister, Sophia M. A. Kolb, of Frederick County, in the State of Maryland, for and during tbe term of her natural life, all those certain pieces or tracts of land, lying and being in said Frederick County and known as The Homestead.” There was no specific limitation in remainder of this property, but it passed under the residuary clause) contained in the codicil and which is in these terms: “I do hereby give, devise and bequeath unto my said executrix, her heirs, executors, administrators and assigns, all the rest and residue of my estate not specifically devised and bequeathed in my said last will and testament, and in this codicil, in trust to sell and dispose of the same and valid conveyances thereof, to make, and divide and distribute the net proceeds among all my heirs at law, share and share alike.” By the will, Charles H. Utermehle, a nephew of the1 testator, was nominated as executor, hut by the codicil, this appointment was revoked and Eaomi Utermehle, a sister of the testator and the mother of Charles H. Utermehle, was substituted as sole executrix. At the time of the death of the testator, his heirs at law were his seven brothers and sisters: Kaomi Utermehle, who died after the testator; Sophia 3\L A. Ko\\>, the life tenant who intermarried with Ralph L. Hall and has recently died leaving surviving children; Louisa C. Whitaker; Alfred Kolb, who died after the testator; Jacob M. Kolb, who died after the testator; Joseph B. Kolb, who died after the testator and Lewis A. Kolb. All of their interest in the said Homestead was conveyed and assigned by separate deeds to Ralph L. Hall by Haomi Utermehle, Louisa C. Whitaker, Alfred B. Kolb, and the heirs of Jacob M. Kolb, after the death of the testator and before the death of he life tenant. The heirs of Alfred B. ²²⁴ Kolb contend that the conveyance made by him to Ralph L_ Hall was null and void, for the reason that the remainder in the Homestead did not vest until the death of the life tenant,, and that since he died before the life tenant, they, as his-children, hold the place he would have occupied, if living,, among the testator’s heirs.

The lower Court found against this contention, and held that the persons entitled in remainder as the heirs of the-testator were those who would answer to that designation at the death of the testator and that accordingly the conveyances by such heirs were good. It is undoubtedly the settled rule that the law favors the-early vesting of estates, and from that rule has sprung the-rule that unless the will clearly expresses a desire upon the-part of a testator to defer the time of vesting or there is-some manifest reason for so doing, a devise or bequest in-favor of a person or persons in esse, whether such persons be individualized or treated as a class, confers an immediate-vested interest, though the time of possession or enjoyment be postponed. In Crisp v. Crisp, 61 Md. 149 , the rule is-thus stated: “It is a question of intention, and the tes-tatorhas ample power to fix the period of vesting to suit himself (always within -the time the rule of law fixes), but he must indicate his wish with reasonable certainty, for if he does-not, the law will presume he intended the earliest- time-.”' These rules have been fixed by a long line of decisions in this State. Tayloe v. Mosher, 29 Md. 443 ; Fairfax v. Brown, 60 Md. 50 ; Larmour v. Rich, 71 Md. 369 ; Dulany v. Middleton, 72 Md. 75 ; Meyer v. Eisler, 29 Md. 28 ; Daughters v. Lynch, 93 Md. 305 ; Hoover v. Smith, 96 Md. 395 ; Suman v. Harvey, 114 Md. 248 .

The clause of the codicil is silent so far as the use- of -express words are used as to the time the remainder- shall' vest; but the testator has directed that the- executor- shall dispose of the residue of his property and distribute the “proceeds among all my heirs. at law, share and share alike.”' This provision is very similar to the one in Hoover v. Smith , ²²⁵ supra. The testator there devised and bequeathed all of his property unto his wife for life, or as long as she continued to he his widow, and then provided: “After either of the above events, the property to he sold and divided among my lawful heirs.” Chief Judge Boyd, in delivering the opinion of this, Court in which it was, held that the remainder to the testator’s heirs vested in them at the time1 of his death, and the, vesting was not postponed until the death of the life tenant but only the enjoyment, said: “It