West v. Sellmayer

Digges, J., delivered the opinion of the Court. The record in this case contains1 four appeals from a decree of the Circuit 'Court of Baltimore City passed upon a bill praying for a judicial construction and interpretation of the last will and testament of Ludwig Sellmayer. The will was made on February 6th, 1919, and the testator died on March 29th, 1925, leaving a widow, who was his second wife, two sons by a former marriage and two sons and a daughter by the second marriage, the ages of these children at that time being respectively as follows: John, forty years; Louis, thirty-six; George, twenty-seven; Edward, twenty-five ; and Marie, sixteen years. The question involved in the four appeals, therefore, is: What is the correct construction of the will of the testator, thereby determining the legal effect of the language employed by the testator in his will.

The task before this Court is to ascertain from the language used and in the light of the surrounding circumstances at the time of the making of the will, what was the intention of the testator as to the disposition of the property, and if such intention can be definitely ascertained, to give full effect to it, unless it contravenes some positive and well settled rule ⁴⁸¹ of law or of property. In performing this duty we have no authority to ascribe to tbe testator a particular intention because under the circumstances we may have a conception of wbat tbe testator should have intended. To do otherwise would be, not to construe tbe will of the testator, but to make bis will for him upon tbe basis of wbat we think should have been bis intentions, and give effect to it as thus constructed. While a will takes effect from the date of the death of the testator, in construing it to arrive at the testator’s intention, it must be interpreted as of tbe date of its execution, and in the light of the circumstances then surrounding and known to the testator.

We are not at liberty to construe the will upon the basis of conditions arising after the death of the testator, and decide upon a construction which would mean practical equality among the objects of tbe testator’s bounty, because of these subsequent occurrences, unless the same interpretation made at the time of the execution of the will would have brought about the same result. In other words^ if the idea of equality can be definitely gathered from the whole will, no construction given in the light of changed conditions existing at the time it is construed, which might bring about equality, is sound, unless tbe same construction, given at tbe time of the execution of the will, would bring about a like equality. Prior decisions of this Court or other courts involving' tbe construction of wills afford little assistance in eases like tbe present, except in so far as they may enunciate or restate canons or rules of construction; for tbe simple reason that it is seldom, if ever, that a court of last resort is called upon to construe a will in which the language is identical with that of the will construed in a former decision. The provisions of the will now under consideration are as follows: “Last Will and Testament of Ludwig Selhnayer. “Know All Men by these Presents, that I, Ludwig Selhnayer, of Highlandtown, in the City of Baltimore and State of Maryland, being of sound mind and memory, do hereby make and declare this to be my last will and testament, hereby revoking all other wills ⁴⁸² or codicils by me heretofore made.

After the payment •of my just debts and funeral expenses, I give, devise and bequeath my estate as follows: 1. I give and bequeath to the Pastor of the Sacred Heart Catholic Parish, in Highlandtown, who may be such at the time of my death, the sum of two hundred dollars to be used in offering masses for the repose of my soul. “2. I give and bequeath to my wife, Dora Sellmayer, all my jewelry, wearing apparel and household effects, if she be living at the time of my death. I also give and bequeath to my said wife the money deposited in our joint names and account in the Savings Bank of Baltimore as represented by pass book Ho. 607, 625, and also the sum of twenty-five thousand dollars if she be living at the time of my death. “3.

I give and bequeath to my son, John, the sum of twenty-five thousand dollars, if he be living at the time of my death. “4. I give and bequeath to my son, Louis, the sum of twenty-five thousand dollars, if he be living at the time of my death. “5. I give and bequeath to my sister, Josephine Becker, the sum of five hundred dollars, if she be living at the time of my death. “6. I give and bequeath to my niece, Teresa Rhine, the sum of five hundred dollars, if she be living at the time of my death. “7.

(a) All the rest, residue and remainder of my estate, real, personal and mixed, whatsoever and wheresoever the same may be situate and of which I may die possessed of or entitled to, I give, devise and bequeath to my wife, the said Dora Sellmayer, my son, George Sellmayer and my friend, John H. Piller, the survivors and survivor of them, to be held by them in trust nevertheless and for the uses and purposes following, that is to say: “To collect and receive the income therefrom as the same shall become due and payable and thereout pay all taxes, water rents, repairs and charges thereon and generally to manage and conduct the same for the best ⁴⁸³ advantage of my estate, with full power and authority over the same and to divide the net income therefrom semi-annually, accounting from the day of my death, between my wife, the said Dora Sellmayer, a,nd my five children, in the manner following, that is to say: “Seven thirty-sevenths to my wife, so long as she shall remain my widow. “Seven thirty-sevenths to my daughter, Marie. “Seven thirty-sevenths to my son, Edward. “Seven thirty-sevenths to my son, George. “Eour and one-half thirty-sevenths to my son, Louis. “Eour and one-half thirty-sevenths to my son, John. “Upon the death of my said wife, her proportion of the net income of my estate,as above stated,shall be paid in equal shares to my surviving children and the issue of any deceased child or children per stirpes and upon the death of any of my said children who shall die with issue, the proportion of the one so dying shall be paid to the issue of said deceased child or children in equal shares but upon the death of such issue before the termination of this trust, then the proportion of the one so dying shall be paid in equal shares to my wife, if then living, and to my children then living and to the issue of other deceased child or children per stirpes. Upon the death of any of my said children who shall die without issue, the proportion of the one so dying shall be paid in equal shares to my wife, if then living and. to my other children then living, and to the issue of other deceased child or children per stirpes. “Upon my sons, John and. Louis, attaining respectively the age of forty (40) years, I direct that my said trustees, the survivors or survivor of them, shall pay to each of them the sum of forty-five thousand dollars in cash or its equivalent in ground rents or other good security, in lieu of the income for them respectively hereinbefore provided. This provision, however, shall not affect their contingent interest or the interest of their issue in the share of my wife or of any of my other children in the event of the death of my said wife or any of my other children or issue of said children before the termination of this trust but ⁴⁸⁴ they shall be entitled to participate therein in equal shares with the survivors as hereinbefore provided. “Upon my daughter, Marie, and my sons, George and Edward, attaining respectively the age of thirty (30) years, I direct that my said trustees, the survivors or survivor of them, shall pay to each of them the sum of seventy thousand ($70,000) dollars in cash or its equivalent in ground rents or other good security in lieu of the income for them respectively hereinbefore provided.

This provision, however, shall not affect their contingent interest or the interest of their issue in the share of my wife or of any of my other children in the event of the death of my said wife or -any of my other children or issue of said children before the termination of this trust but they shall be entitled to participate therein in equal shares with the survivors as hereinbefore provided. “The provisions hereinbefore made for my said wife are to be in full satisfaction of all interest in my said ■real and personal estate to which she would be by law entitled in ease of my dying intestate. “After the youngest of my said children shall have been paid the sum for her or him hereinbefore provided, my said trustees, or the survivors or survivor of them, shall divide the whole of the trust assets among those then entitled to the income therefrom in the proportion hereinbefore provided. “As the residue of my estate will include many securities which will require careful handling, I confer upon my said trustees and the survivors and survivor of them, full power to unite in any proceedings for foreclosure, or to institute the same, or to surrender in their discretion any of the securities and accept others in lieu thereof, to exchange any securities for others, to make payments of cash which may be necessary as part of or in the course of any arrangement for the protection, surrender or change in securities, to unite in any needful litigation for the protection of the securities or property and generally, to do any act which I might myself do with a view to protecting the property and to realize upon it and upon any ⁴⁸⁵ securities embraced in such residue, including also the power to sell and lease for ninety-nine years renewable forever or for less periods any part or the whole of any real estate embraced in such rest or residuo. I give to my said trustees and the survivors and survivor of them full power to sell, dispose of, lease and convey any part of or all of my estate or property not herein specifically bequeathed and to make such sales publicly or privately at their option or that of the survivors or survivor, and the purchasers or lessees thereof shall be free from all liability for or on account of the application of the purchase money thereof or the rents issuing therefrom. “I nominate, constitute and appoint my wife, Dora, my son, George, and the said John H. Filler, executors of this, my last will and testament. “In testimony whereof, I, the said Ludwig Sellmayer, have to this, my last will and testament, contained on four sheets of paper and to every sheet thereof, subscribed my name and to this, the last sheet thereof, I have here subscribed my name and affixed my seal tbis sixth day of February in tbe year One Thousand, Hine Hundred and nineteen. “Ludwig Sellmayer. (Seal) “Test: H. Beale Bollins Edwin F. Gibbons John H. Hammann.” There are apparently two general purposes which the testator had in mind, and which can be gathered from a reading and study of the whole will: First, the purpose of equality among his widow and children; second, the purpose of delaying the payment of any portion of the principal to his children until they had arrived at such ages when, under natural and ordinary conditions, they would be qualified to use and manage such portions of the principal in a wise and efficient manner. The first purpose mentioned is to be gathered from the provisions of the will as to the payment of income.

It is evident that the testator considered the interest on $70,000 as equivalent to 7/87 of the net income from ⁴⁸⁶ his residuary estate,' because when he provides for the payments of $25,000 to his sons John and Louis at the time of his death, by reason of such payments of $25,000 at such time he reduces their portion of the income from the rest of the estate to 4%/37 of said income, and when the $45,000 which the will provides shall be paid to each of the said two sons upon their arrival respectively at the age of forty years, is paid to them, their participation in the income from the residuary estate ceases; thereby indicating that a payment of $25,000 is equivalent to 2%/37 of the entire income, and that the payment of $45,000 is equivalent to 4%/37 of the entire income. This is further manifested by the provision that as each one of his other three children arrives at the age of thirty, they shall be paid $70,000 each in lieu of the payments of 7/37 of the entire income from the residuary estate. The above, in our opinion, clearly demonstrates that the testator considered that the interest or income from the sum of $70,000 was equivalent to 7/37 of the entire income from his residuary estate. Equality is further indicated by the provision that if any one of his children should die before the time at which they respectively received $70,000, without leaving issue, the income theretofore provided for the one so dying is divided equally among the wife, if living, the surviving children, and the issue of any deceased child who died before he or she received the sum of $70,000; and if the wife should die or remarry before the termination of the trust, the 7/37 of the income provided to be paid to her, becomes payable equally among the children then surviving, or the issue of any deceased child who had not received at the time of his or her death $70,000 of the principal of the estate.

Again, the intention of equality is evident by the fact that each child was given the same advance from the corpus of the estate, to wit, $70,000; the $70,000 being paid to John and Louis, each $25,000 at the death of the testator and each $45,000 when they arrive at forty years; and the $70,000 being paid to each of the other three children upon their arrival at thirty years of age. The second intention of the testator, stated above, is clearly evidenced by the fact that no ⁴⁸⁷ part of a child’s share of principal should be paid to bim or her until he or she has become at least thirty years of age, even though the testator had died the day after making his will. In construing this will we must keep in mind the general plan of the testator, as evidenced by his clear intent. Upon John Sellmayer’s arriving at the age of forty, which has occurred at this time, he receives from the corpus of the estate $45,000, in addition to the $25,000 left him by the third item of the will, and by reason of receiving" this portion of the corpus, cea'ses to 'be entitled to>