Henning v. Varner

Stewart, J.,

delivered the opinion of the Court.

This appeal, from the Orphans’ Court of Baltimore city, involves the right to letters of administration de bonis non cum testamento annexo, upon the estate of Thomas Henning.

The appellant'insists that he is entitled, as one of the residuary legatees, whilst the appellee claims as the nearest of kin.

Under the 34th section of the 93d Article of the Code, where letters of administration are to be granted, with a copy of the will annexed, and there are residuary legatees and no widow, the male residuary legatee is preferred to the female. This section has no reference to the degrees of kindred — the male; although an utter stranger, by blood, is preferred to the female, however near to the deceased by affinity or consanguinity. In such base, the daughter of the testator, although a residuary legatee, must be postponed to her nephew, the grand-son of the testator, a male residuary legatee. But this preference, according to the terms of the section, is only given where there are residuary legatees; and the appellant, to entitle him to be preferred, must show, from the true construction of the will, that he is not m'erely legatee, but a residuary legatee.

The bequest, by the first clause of this will, is made of all. the property of the testator, to the wife, during her widowhood, with the remainder thereof, limited over, at her death, to the other parties described in -the will, of which the appellant is one. Under the terms of this first clause, the testator disposes of all his estate, leaving no residue.

The subsequent provisions, as to the money due at the death of his wife’s mother, when received., to be equally divided between his wife and children, or grand-children; and the proceeds of any future purchase of ground rents, or from the contingent sale by his wife of the slave mentioned in the will, to be divided in the same manner, do not change the antecedent general disposition of his estate, so as to constitute the parties, who took under the first clause, residuary legatees.

*107 (Decided 17th February, 1871.)

Construing the will, with its various clauses, as one instrument, it does not appear, from those latter bequests in regard to any future assets, that the testator had in contemplation the disposition of any residue of his estate, or to alter the first bequest or general clause. There must appear, from some provision of the will, from its terms or true construction, that the testator intended to bequeath the residue of his estate to parties, to constitute them his residuary legatees.

A residuary legacy is a bequest of all the testator’s personal estate, not otherwise effectually disposed of by his will. 6 Bacon’s Abridg., sec. 1, p. 303.

We do not discover, from any of the provisions of the will, separately or conjointly considered, any intention to dispose of a residuum of his estate; and there are no residuary legatees jirovided for by the will, either by its language or legal construction, within the meaning of the section of the Code referred to.

The widow, children and grand-children take the portions given to them as legatees.

The Orphans’ Court committed no error in the refusal to recognize the right of the appellant as residuary legatee.

Decree affirmed.