Young v. Robinson

A devise of all the money remaining in the hands of my executors, after payment of debts and legacies, “to the surviving children of my deceased brothers J. & W., to be equally divided among them, share and share alike,” will pass the residuum of the testator’s money, to the children of J. & W. who survived at the death of the testator, in exclusion of the descendants of such of the children of J. & W. as may have died during the testator’s life time. The death of one of the children of J. or W. during the life of the testator, did not occasion the legacy to lapse as to his part, at common law. The act of 1810, ch. 34, sec. 4, applied only to cases where legacies would have lapsed or failed to take effect, by the death of the legatee, where such legatee was named in any last will and testament. The act of 1832, ch. 295, was not designed to change any of the. rules for the construction of wills, but simply to provide for such cases of legacies- and devises, as by the rules of law lapsed or failed to take effect by the death-Of the devisee or legatee in the life time of the testator, and where not being named, the devisee or legatee was mentioned, described, or in some' manner referred to, designated, or identified in the will.

Appeal from the Orphans’ Court of Washington County. John Young of Robert of the State of JVorth Carolina, John Young of Illinois, William Young of Kentucky, and others,non-residents, children and representatives of William Young, son of William Young, John Young, and others, children and representatives of William Young, son of John Young; Ulysses Young, and others, children and representatives of Abraham Matthew Young, son of John Young, by their petition represented, that Doctor Daniel Young, late of Washington county, Maryland, departed this life on the 23rd July 1838, having made and executed his last will on the 10th August 1823, with two codicils thereto, the one dated 1st February 1837, the other the 9th June 1838, which hath been duly proved and recorded, and a copy of which is herewith exhibited. This will, after directing his executors to sell all his personal property, except his negroes and certain real estate, proceeded as follows— “It is my will and desire that the amount of the proceeds of the sale of said real and personal property, together with-4he money I may have at the time of my death, or that then may be due or owing to me, either by book debts, obligations of any kind, or bank stocks, or judgments, shall be disposed of by my executors in the following manner, viz: ■ Imprimis — I give and bequeath to my niece Jane Milligan, (who now lives with me,) the sum of $1500, and certain household furniture, and a slave. Item — 1 give and bequeath to John Lind Young (now living with me,) the sum of $500, for the purpose oí assisting his education. Item — I give and bequeath to the managers of the Female Charity School in Hagerstown $100, to he applied by them to the education of poor children. Item — I give and bequeath to my nephew William Milligan, the sum of $500, or to his heirs, if he should be deceased. Item — It is my will and desire that all my negroes shall be •entitled to their freedom the in course of three months after my decease, or sooner, at the disq^síak^nn^ítell °f my executors. And lastly, it is my will maining in the hands of mj of my real and personal pro]] bank stock, and from all thá ’book debts, that are collected the payment of the legacies beforelñenüonecl by my executors, I by these presents give and bequeath all the money remaining in the hands of my executors to the surviving children of my deceased brothers John and William Young, to be equally divided among them, share and share alike.” money re|in the sales ?sale of my specialties, my estate, after The codicii of 1st February 1837, gave specific legacies to John Young Lind, and Jane Milligan, Isabella Milligan and William Milligan, and to one of his servants, of books, plate, money and furniture. The codicil of the 9th June 1838, confirmed and ratified the will and first codicil, and appointed John Young Lind co-execulor with John Robinson, who had been appointed sole executor by the original will. The petition further alleged that there were other children of John and William Young, who died before the date of the said will. But your petitioners are advised and do insist that according to the true construction of the said will and codicils, and by the law and statutes of Maryland, your petitioners are entitled to be admitted to a distribution of the said fund, as children and representatives of their deceased parent that your petitioners, children of William Young of William, and also the children of Mary Young, a daughter of said John Young, (brother of the said testator) which said Mary intermarried with the said William Young (of William,) and also departed this life subsequent to the date of said will, and before the death of the testator, in whose right the said petitioners also claim a distribution. And further, that the said William Young (of William) had two other children, Robert and James, who died before their said father William Young, each leaving widows and children, namely, Franklin, Mary, William, George, Nancy and Edward, children of the said Robert, and William, Caroline and Richard, children of the said James. To the end therefore, that your petitioners may be admitted to a distribution of the said residuary fund, your petitioners pray that a citation may issue to the said John Robertson and John Y. Lind, executors as aforesaid, and the said James Cavan and others, commanding them, &c. The answer of the executors and James Cavan and others, alleged, that they believe said petitioners are the grand-children of John Young and William Young, the deceased brothers of the said testator, mentioned in the clause of his will quoted in said petition, and the children of the persons named in said petition, who as these executors have been informed and believe departed this life subsequently to the date of said will, but before the death of the said testator. They admit all the other facts stated in said petition, and state that they have a large amount' of money, to wit, the sum of $>17,000, belonging to said deceased estate, which they are ready and anxious to account for and distribute according to the directions, and true construction of said will, and the laws and statutes of Maryland; that they have been advised that the only true distributees of the funds now and hereafter to be in hand, and bequeathed by said clause, are the children of said John and William Young, mentioned in said clause, who survived the said testator, and who are named in said petition, but their executors have no interest in this matter beyond a faithful performance of the trust reposed in them, and are desirous for their own security and protection, to have for the distribution and payments they shall make, the sanction of this court, and such other court or courts to which the parties interested in the fund may see proper to resort for the final settlement of the principal question in controversy. And the said James Cavan and others, in answer to said petition, also admit what is stated in said petition with regard to the devise or bequests of said Samuel Young, late of Washington county, and State of Maryland, deceased, and as to the names, members and relationship of said petitioner, and the deaths of their parents; but would for greater particularity state, that William Young of William, and William Young of John, parents of a part of your petitioners, both departed this life within the interval between the date and execution of the last of the codicils to said will and the death of the testator; the parents of the remaining petitioners having died at periods between the date and execution of the will and date of the first codicil thereto. But while these respondents thus admit the facts stated in said petition, they deny that the petitioners have any right to, or ought to be admitted to any distribution of the funds bequeathed by said clause of said will and codicil, and that these respondents are the only true legatees, they being the only surviving children of John Young and William Young, brothers of said testator, at the time of said testator’s death, which occurred on the 23rd July 1838, &c. On the 2nd December 1840, the orphans’ court, (Keller, Hezletine and Weber, Justices,) ordered, that the said executors proceed to state an account of the sum in their hands, and that the register distribute the same equally among the said five respondents, to wit, &c., who in the judgment of this court, are entitled to said fund in the above proceedings mentioned, to the exclusion of all and every of said petitioners. The petitioners appealed to this court. . The acts of 1810, ch. 34, see. 4, and of 1832, ch. 295, were the foundation of the appellants claim. The act of 1810, ch.-34, sec. 4, provides, “that from and after the passage of this act, no devise, legacy or bequest, shall lapse or fail of taking effect by reason of the death of any devisee or legatee named in any last will or testament, or any codicil thereto, in the lifetime of the testator, but every such devise, legacy or bequest,, shall have the same effect and operation in law to transfer the-right, estate and interest, in the property mentioned in such, devise or bequest, as if such devisee or legatee had survived the testator.” ' The act of 1832, ch.. 295, is as- follows: A supplement to. the act passed at December session, of the year 1810, ch. 34,, relating to devises and legacies.- Whereas, doubts are entertained as to the proper construction of the fourth section of the act to which this is a supplement, and whether the devisees or legatees whose death is provided for by the said section, must be devisees or legatees actually and specially named in the last will and testament or codicil — therefore, Be it enacted by the General Assembly of Maryland, That all devisees or legatees shall be deemed- and taken to be within the provisions and true intent and meaning, of said fourth section of said act, who are or' shall be, either actually and specially named as devisees or legatees, or who are or shall be mentioned, described, or in any manner referred to, or designated, or identified as devisees or legatees in-and by- any last will and testament or codicil.