Wilson v. Bull

Fowler, J., delivered the opinion of the Court. This is an action of ejectment brought by the plaintiffs against the defendant, Sarah J. Bull, to recover a two-thirds interest in certain ground rents in Baltimore City. During the course of the trial the defendant reserved several exceptions eight of which refer to the rulings on the admissibility of testimony and one, the ninth, to the ruling upon the prayers. But the only important question presented by this appeal arises upon the granting of the defendant’s first prayer by which the jury were instructed that no evidence had been offered legally sufficient to entitle the plaintiffs to recover the property mentioned in the declaration and directing a verdict for the defendant.

The verdict and judgment being against the plaintiffs they have appealed. The propriety of this action of the trial Court in taking the case from the jury depends upon the question as to what is the true construction of the will of the late John Berry, of Baltimore City. Before proceeding to construe the will, or the third item thereof, which is the only part of the will involved in this controversy, it may conduce to a clearer understanding of the questions presented if we state the facts showing. something of the family history of the testator and his. children. It appears then that at the time he executed his will, and at the time of his death the situation had not been changed in this respect, the testator had six children, five daughters, Harriet E. Berry, Susan L. Hurst, Julia A. Turner, Eliza E. Berry, Sarah J. Bull; and one son, John S. Berry.

The testator died in 1856, and his widow, Sarah D. Berry, survived him about three years, having died in 1859, at which time all of the children were living. One of the daughters of the testator, Harriet E., died without issue in 1873. Mrs. Hurst, another daughter, died in 1880, leaving two children, Mary E. B., now Mrs. Purnell, ¹³⁰ and Sarah B., now Mrs. Morgan; Mrs. Turner died in 1886 leaving two children, James H. and Louisa J., now Mrs. Wilson. The remaining daughter, Eliza E. Berry, and the only son, John S. Berry, died respectively in 1890 and 1901 without issue.

Sarah J. Bull, the original sole defendant in this action, died since it was brought, and her children and the children of her deceased children are made parties defendant in her place. It appears that in March, 1884, a bill of complaint was filed in the Circuit Court of Baltimore City by the then four surviving children of the testator against Mary E. B. Purnell and Sarah B. Morgan, the two children of Susan L. Hurst, and their respective husbands, and on the 4th of April, 1884, after appropriate proceedings were taken for that purpose, the ground rents which form the subject-matter of this suit were, according to the contention of the defendants, divided in accordance with the construction of the will of John Berry which is now sought to be established by the defendants. It was urged on the part of the defendants that inasmuch as the decree in the equity cause we have just mentioned, provided in clear and express terms that the rents were to go to the then surviving children of the testator, the plaintiffs in this case who were either parties to the equity cause, or claim through those who were, are estopped to set up a construction ■of the will different from that adopted in the decree relied on. The Court below in granting the plaintiff’s second prayer ruled against this contention of the defendant and held that the plaintiffs were not estopped to maintain this suit by anything done by them or by the Court in the former suit.

This brings us to a consideration of the provisions of the will on which this controversy hinges, and we will proceed to construe it and determine the rights of the parties without regard to the question of estoppel or res adjudicata based upon the decree and proceedings in the equity suit of 1884 in the Circuit Court of Baltimore City. In the first place it may be stated that the only interest here involved is the one-sixth interest of the testator’s son, John S. ¹³¹ Berry, who died in 1901 without issue. It appears that upon his death, the actual possession of this one-sixth passed to the then only surviving child of the testator, namely, Sarah J. Bull, to the exclusion of the children of her deceased sisters. The contention of the latter, who are plaintiffs, is that this one-sixth of the rents which John S. Berry had for life under his father’s will, under a proper construction of that will, goes, one-third to Mrs. Bull, the defendant, and the remaining two-thirds to the plaintiffs, while the proposition on which the defendants’ claim is based, is that the rents in question, that is the one-sixth interest of John S. Berry, on his death without issue properly passed to her in 1901 on his death as her absolute property under her father’s will.

As we have already stated, the learned Court below in granting the defendant’s first prayer and withdrawing the case from the jury, adopted the views of the defendant. In order to determine whether the construction thus given by the learned Judge is the correct one we must ascertain, what is the intention of the testator as declared in the will. 'And in order that we may have his language before us we here transcribe it. It is as follows : Item. All my annuties or ground rents and the fee and reversion of and in the grounds and premises out of which any and all of the said annuities or ground rents now issue and are payable, and all the annuities or ground rents I may hereafter own or in any manner be possessed of at the time of my decease, I give and devise to my beloved wife, Sarah D. Berry, to hold for and during the term of her natural life, so as to enjoy the said estate and property and the rents, issues, income and profits thereof, to receive and apply to her own use and benefit, and from and immediately after the death of my said wife, each one of my six children, John S. Berry, Eliza E. Berry, Susan L. Hurst, Harriet E. Berry, Juliet A. Turner, and Sarah J. Bull, shall respectively during their natural lives use and enjoy one equal undivided sixth part of the estate and property devised by this section of my will and the rents and profits arising therefrom, take and apply to their sole and separate use and benefit, and the receipts of my said six children respectively alone shall be good and sufficient receipts and acquittances therefor, and from and immediately after the de ¹³² cease of my said six children respectively, then one equal undivided sixth part of the estate and property devised by this section of my will shall go to and become the property of their child and children respectively, his, her, or their heirs, executors, administrators and assigns, absolutely, if more than one, as tenants in common, to be equally divided between them, share and share alike, the issue of any deceased child of my said son or of my said five daughters respectively, if any such issue there should be living, to have and take the part or share to which the parent of such issue respectively would if living be entitled.

And in the event of the decease of any of the children of my said son or of my said five daughters, respectively, under age and without issue living at the time of his, her or their respective deaths, the part or share of him, her or them so dying shall go to his, her or their surviving brothers or brother and sisters or sister, his, her, or their heirs, executors, administrators and assigns, absolutely. And in case it shall so happen that either my said son or any or either of my said daughters should depart this life, without leaving a child, children, descendant or descendants of the same living at his death or her death respectively, then the part or share of the said son, daughter or daughters so dying shall go to and become the property of my surviving child or children, his, her or their heirs, executors, administrators and assigns absolutely. It seems to us that if there ever was a will which upon its face may be said to be plain and free from ambiguities, such language may be applied to this one. Men are so constituted however that they do not all look at things from the same point of view, and experience teaches us that different conclusions will be reached especially in will cases, not only by counsel who may be expected naturally and not improperly, to be swayed by a conviction that their clients are right, but also by Judges who, without favor or partiality for either side, try only to reach a just conclusion justified by the language of the testator. 'The main object, then, indeed it may be said the only object, should be to discover the intention of the testator, and having ascertained his wishes they must control our conclusion, unless they are contrary to some settled rule of law or of property or of some well defined rule, of public policy.

Mis. Soc. v. Mitchell, 93 Md. 202 ; Abell v. Abell, 75 Md. 40 . It should not be forgotten, however, that theinten ¹³³ tion of the testator which is to govern is the intention he has expressed in his will. With great industry counsel for the appellants have collected, discussed and applied in their voluminous brief about one hundred authorities to sustain their views in regard to the construction of the will and the question of res adjudicata.

Some twelve or fifteen authorities only are cited by the appellees—most of them being among those cited by the appellants. It seems to us, as we have already said, that the intention of the testator is very clearly expressed and hence a statement of our views without much elaboration will be sufficient. It will be observed that the first thing which demands the attention of the testator is a provision for his wife. All the ground rents he owned at the time of making his will and all that he might thereafter own or be possessed of at the time of his death, he gives in the first place to his wife during her life; and secondly, after her death he gives a life estate in one undivided sixth of said rents to each of his six children.

He mentions his children by name. First he names his son, John S. Berry, then his five daughters, and he declares that they shall respectively during their lives use and enjoy one equal undivided sixth part of said rents and the income and profits therefrom ; thirdly, he provides that immediately after the decease of his six children respectively one equal undivided sixth part of said rents shall go to their child or children respectively absolutely, if more than one as tenants in common, to be equally divided between them, the issue of any deceased child of his said son or of his said daughters respectively, if any such issue there should be living, to take the share to which the parent of such issue respectively would, if living, be entitled. Provision is then made for the case of the death of any of the children of his son or of his daughters respectively dying under age and without issue living at the time of his, her or their respective deaths—providing that the part or share of him, her or them so dying shall go to his, her or their surviving brothers or brother and sisters or sister, his, her or their heirs, &c.—absolutely. Then follows the concluding part of ¹³⁴ the paragraph of the will which- gives rise to -this controversy.

Having provided for his wife during- her life and having made a similar provision for his six children respectively he provided