Orrick v. Boehm

Bowie, J.,

delivered the opinion of the Court.

The claims of the several appellants arise out of the construction of the second, fifth, ninth and twelfth items, of the will of the testator, which is dated the thirty-first day of August, 1832, and was proved on the 13th of May, 1843, and admitted to record, in the office of the Register of Wills of Baltimore City.

After giving and bequeathing to his wife Elizabeth Stonebraker, the house and lot No. 42, on Hanover street, with all the furniture, etc.; also, a small farm called Whitehall, situated on the old Frederick Road, etc., the second item provides, “ I also give and bequeath to my dear wife Elizabeth Stonebraker, the sum of thirty thousand dollars, to he paid over to a trustee, or trustees, to be appointed by my executors, which trustee, or trustees, shall place and continue the said sum of thirty thousand dollars, upon good security, and pay the interest and diyidends thereof, as they may fall due, to my dear wife Elizabeth Stonebraker for her use, during the term of her life ; and from and immediately after her decease, pay and distribute the capital (after the sale of house and lot on Hanover street, with the farm called Whitehall,) in the following manner: “ Her dear niece, Malinda Neff, eight thousand dollars on interest or annuity, during her life, from thence to her heirs or assigns, from one generation unto generation. *94 Also, eight thousand dollars, to her nephews, and nieces, children of her brother John Neff, the said eight thousand dollars, each child to have share and share alike, of this named sum, and to be disposed of same manner as Malinda Neff’s ; and five thousand dollars, to my dear niece Urilla Stonebraker, daughter—brother John Stonebraker, also to be disposed of same as Malinda Neff’s; six thousand dollars to be vested in stock, or annuity for the use of the Lutheran Congregation of Boonsborough, Washington County, Maryland, the interest to he applied only for the payment of said congregation’s pastor’s salary, and be considered as permanent funds for the use of aforesaid congregation forever ; the balance of this amount bequeathed to my dear wife, E. Stonebraker, if a balance remaining after all other sums before mentioned are paid, shall be applied for a second English Lutheran Church, to be located in the City of Baltimore, south from Pratt street, and west from Sharp street, provided this church will not be erected and completed for worship within three years after this appropriation is made, then the American Colonization Society shall enjoy the benefit thereof. ’ ’

The third item bequeaths certain houses and lots in Baltimore and Boonsborough, Maryland, to his nephew, John A. Bentz; also, the sum of $12,000.

The fourth item, bequeaths certain houses and lots in Boonsborough, Washington County, Maryland, to the rightful heirs of his nephew, Samuel Beritz.

The fifth item is as follows : “I give and devise my house and lot of ground thereto belonging, situated in Boonsborough, Washington County, Maryland, (a white framehouse formerly occupied by the Rev. Mr. Bacher,) to the Lutheran Congregation, for a parsonage house only, of said place.”

The sixth item, is a bequest unto his niece, Catharine Harbaugh, of his one-half of a brick store, etc., in Middletown, Frederick County, Maryland; after her death, *95 the same to he transferred to her children, share and share alike.

The seventh item, bequeaths to the Orphaline Society of Baltimore, the sum of five thousand dollars, for the use of that institution.

The eighth item, bequeaths to the Humane Impartial Society of Baltimore, the sum of one thousand dollars, for the use of that institution.

The ninth item gives and devises the house and lot occupied by Mrs. Reynolds, in Boonsborough, Washington County, Maryland, to his black woman, “Tilly,” (to whom he gave her freedom,) with sixty dollars yearly, during her life; after her decease, the said house and lot with the annuity of sixty dollars, for the sole use of the Lutheran and German Reformed Congregation of Funks-town, Washington County, Maryland.

The tenth item, bequeaths unto his black woman, Dolly, the interest of one thousand dollars during her life, and her freedom;' after her death, the said amount to be permanent funds for the poor and destitute of Funkstown, Washington County, Maryland, said funds to be placed in the hands of the Vestry of the Lutheran and German Reformed Church of the aforesaid town.

The eleventh item. “All other colored servants, now my property, to have their freedom, when twenty-one years of age.”

Twelfth item. “If a balance may remain of my real and personal estate after all sums are paid and invested, according to my desire and wishes from section three to twelve, the balance I wish to have appropriated and for the sole use of the American Colonization Society, though must be understood the amount in full bequeath— to B. Stonebraker, J. A. Bentz, and annuity to black women Tilly and Dolly, must be paid first, all other bequests subject to deduction if the estate should not hold out in full.”

*96 The thirteenth item authorizes his executors to appoint a trustee or trustees, who shall place the respective sums of money for the use of his black women, Tilly and Dolly, on interest or annuities, and pay over the sums named in the ninth and tenth, sections to them, half yearly; also, authorizes his executors, if they think proper and for the benefit of his estate, to have two years after his death, to settle his worldly concerns and to- have “ the privilege of renting real estate if it will bring six per cent, on a fair valuation ; (in this last real estate I am alluding to such real property not named in this instrument of writing.”)

Lastly, he appoints his wife, his nephew John Bentz, his brother Gerard Stonebraker, and Elias Davis, executors of his will, “to see his intentions in respect to the residue of his estate are, and shall be strictly complied with.”

It is apparent from the literal citations of the will which we have made, that the testator’s intentions, however clear in his own mind, have been very obscurely and vaguely expressed. His heart was more cultivated than his understanding ; his designs were more liberal than his language ; his views, larger than he was competent to communicate.

A striking feature of this will is its abundant benevolence. His wife, her nephews and nieces;—his brothers, his nephews, his servants, the congregations of Christians to which he belonged, or with which he had associated, the Orphaline and Humane Societies, and last, but not least, the American Colonization Society, seemed to be objects of his bounty.

It is to be very much lamented, that the last wishes of such a benefactor should be disappointed, or fall short of their mark because of the vagueness or obscurity of the language, in which they were uttered.

The law, has however no sympathy for the objects of testamentary dispositions, its sole province is to ascertain the *97 will, as far as it is expressed in conformity with its policy and its prescribed rules.

Taking the cases in the order in which they are presented on the record ;—on the appeal of Orrick and wife, it is insisted as a preliminary objection, that the trustee, Ohas. T. Boehm, acting under the decree of the Superior Court appointing him, had no authority to file his hill in this case, that the order of consolidation was improper, and the bills should have been dismissed.

That the 36th section of Art. 4, of the Constitution of Maryland, upheld the jurisdiction of the Superior Court, where the case in which he was appointed trustee still remained, and as an officer of that Court he had no right to do any thing in regard to a trust fund under its jurisdiction, without a special order of that Court for that purpose.

It appears from the hill of the trustee, Chas. T. Boehm, and the answers of the several defendants, that a bill was filed in the Superior Court of Baltimore City in equity, by Elizabeth Stonebraker, widow of the deceased testator, and one of the executors, for the appointment of a trustee, as provided by the will. Under said proceeding, Gerard Stonebraker was appointed trustee, upon whose death Chas. G. Boehm was appointed trustee ; and upon the death of Charles G. Boehm, Charles T. Boehm, the appellee, was appointed trustee.

The powers of the trustee, appointed by the Superior Court in the case of Stonebraker vs. Stonebraker are not expressly set forth, but if appointed to execute a trust under the will, it was limited to the duties therein prescribed.

The case of Stonebraker was prosecuted to final decree and there the authority and jurisdiction of that Court as a Court of equity ceased. Upon the re-organization of the Judiciary, under the Constitution of 1867, the Superior *98 Court of Baltimore City was divested of its jurisdiction inequity, and the Circuit Court of Baltimore City was invested with exclusive jurisdiction in equity. Vide Constitution of Md., Art. 4, part IV, secs. 28, 29.

Whatever might have been the power and authority of the Superior Court, to pass orders in the case of Stonebraker vs. Stonebraker, prior to a final decree, it clearly had no authority to pass orders with a view to future litigation. It could not initiate proceedings for the purpose-of deciding questions which had arisen, or might thereafter arise, as to the distribution of the assets under George,Stonebraker’s will.

But conceding for argument’s sake, that the trustee,. Charles T. Boehm, had no power to file his bill without the previous order of the Superior' Court of which he was trustee, that Court had no power to protect him from being-sued by the legatees of the said Stonebraker, or others, claiming as heirs-at-law and next of kin.

Being sued and made defendant in two separate and distinct bills, in the Circuit Court of Baltimore City, involving the same questions and claims arising out of the same instrument, it was his right and privilege, as a party defendant to those suits, to pray they might be consolidated. The Court below was therefore right, in our judgment, in passing the order consolidating the causes involving the construction of the testator’s will.

The second question, arising upon the appeal of Orrick and wife, and those claiming under the widow of George Stonebraker, and the appeal of Malinda Barth, is whether Malinda Barth, (nee Neff,) takes under the will of the deceased, the sum of eight thousand dollars only, as bequeathed to her by name in the second clause or item of the will, or, in addition thereto, one-fourtli of the sum of $8000, bequeathed in the next sentence of the same section of the will, to the children of John Neff.

*99 This depends entirely upon the intention of the testator, as manifested by the language he has used. It is conceded that Malinda Neff, (now Barth,) is one of the children of John Neff, and a niece of the testator’s wife. Immediately following the bequest of the testator to his wife, of the sum of $30,000, to be paid to a trustee, for investment, the interest to he paid to her, for her use during the term of her life ; the will directs “ and from and immediately after her decease, pay and distribute the capital (after the sale, house and lot on Hanover street, with the farm called Whitehall,) in the following manner: her dear niece, Malinda Neff, eight thousand dollars, on interest or annuity during her life, from thence to her heirs or assigns, from one generation unto generation. Also eight thousand dollars to her nephews and nieces, children of her brother, John Neff, the said eight thousand dollars each child to have share and share alike of this named sum, and to be disposed of same manner as Malinda Neff’s ; and five thousand dollars to my dear niece, Urilla Stonebraker, daughter—brother John Stonebraker, also to be disposed of same as Malinda Neff’s.”

It is argued, that this bequest is of two unequal amounts in the same paper, and this makes it cumulative, unless it violates an intent to the contrary, plainly expressed on the face of the will, and in this will there is no such contrary intent; for which position the appellants rely on 2 Williams on Executors, 1289—90.

That learned author says, “ On this point, (whether a legacy is cumulative or not,) the intention of the testator is the rule of construction. The cases in which this question arises, may be classed under two heads, 1st, where there is no evidence of the testator’s intention apparent on the face of the will; 2nd, where there is such internal evidence.” Under the 1st head, it is an established rule, “where two legacies of quantity of unequal amount are *100 given to the same person, in the same instrument, the one is not merged in the other, hut the latter shall be regarded as cumulative, and the legatee is entitled to both.”

The appellant Malinda assumes in this case that the legacies are to the same person (which is the matter in question,) and secondly, that there is no internal evidence in the will to the contrary.

The bequest of the $8000 to Malinda Neff, in the first sentence of the bequest cited above, is to “her dear niece, Malinda Neff,” individually, by name; the second bequest of $8000, is to a class of persons, described as “ her nephews and nieces, children of her brother, John Neff,” “ each child to have share and share alike of this named sum”—among this class equality was to be the rule of distribution, and each share is to be disposed of in the same manner as Malinda Neff’s.

“Malinda” is taken out of the class by the first sentence, and made the special object of bounty ; in the second, Malinda Neff is referred to as an example of the mode of investing the legacy bequeathed to the class.

The words directing the mode of disposing of the latter legacy, clearly exclude Malinda Neff from all participation in it.

There is therefore no ground for the assumption that Malinda Neff was intended to be included in the class of persons to whom the second sum of $8000 was bequeathed, but there is clear internal evidence to the contrary.

The appellant, Barth, does not come within the rule laid down by the authorities, that where two legacies of unequal amounts are given to the same person in the same instrument, the one is not merged in the other, but the latter shall be regarded as cumulative, and the legatee is entitled to both.

The third point presented by the appellants’ brief on Orrick’s appeal is, that the real estate described in the *101 second clause of the will, was devised to the widow in fee, and not for life.

The argument is, that the widow takes as a purchaser in fee, in lieu of her dower ; that her fee simple is reduced to a life estate by a sale impliedly ordered in a parenthesis, and without any devise over of the proceeds of such implied sale, and without the will indicating any purpose as to such sale. It is said, “No authority has been found for such a position, and the mere statement of the proposition, is its own refutation.”

It is true the law implies, unless it is expressed to the contrary, that a devise to a widow of real estate is in lieu of her dower ; and imposes upon her the duty of electing within a limited time, whether she will take her thirds or abide by the will; but the statute nowhere declares such devise to a widow, shall necessarily pass an estate in fee.

No authority is cited to maintain that position. Devises and bequests to widows, are subject to the same rules of construction, as those‘to other persons. The language of the second section of the will, in this case, limits all the devises and bequests to Elizabeth Stonebraker, “'for Tier use. during the term of her life.” The pecuniary legacy of $30,00(Hs to be paid to trustees, to he placed on good security, the interest to be paid to Elizabeth Stonebraker, for her use during the term of her life; and from and immediately after decease, pay and distribute the capital (after the sale of house and lot on Hanover Street, with the farm called Whitehall,) in the following manner.

Could the sale of the real estate have been referred to as the contingency for the distribution of the capital, (whether that capital consisted of the money before bequeathed only, or that and the proceeds of the realty.) if the latter had been devised in fee to his widow ? Such a presumption is too violent to he entertained.

The main question arising on the appeal of the American Colonization Society is, as to the effect of the will *102 upon the pieces of property described in the second clause of the will, “as the house and lot No. 42, on Hanover Street, and the farm called Whitehall.”

This question is presented, in two aspects, first, the disposition, if any, made of this property, by the second section or clause of the will, considered alone. Secondly, the operation of the twelfth or residuary clause of the will .upon this property, if any, and if not disposed of by either of these clauses separately, whether it is effected by their joint operation.

We have already shown that, in our opinion, the house and lot, (No. 42 Hanover Street,) and the farm called Whitehall, were devised to the widow “during the term of her life ” only. The words embraced in the sentence, “ and from and immediately after her decease, pay and distribute the capital, (after the sale of house and lot on Hanover Street, with the farm called Whitehall,) in the following manner,” are supposed to be broad enough, to amount to a direction to sell the real estate, and convert it into money, as a part of the capital, to be distributed pursuant to the preceding part of the sentence. It is insisted on behalf of the American Colonization Society, that the real estate was a part of the capital provided by the testator, for the support of the widow, and' when he directed the capital to be distributed, he intended all the estate, real and personal, wliicb had been previously bequeathed and devised for her use.

This interpretation, however plausible, is subject to one serious and apparently insuperable objection.

The injunction to pay and distribute the capital immediately after' the widow’s decease, was addressed to the trustees, to whom the thirty thousand dollars had been paid by the executors, to be invested for her use, and those entitled to it in remainder. But the real estate had never been devised to the trustees or any one, expressly, *103 beyond the life estate of the widow, and the trustees had no power under the will, to sell and convey that estate. It is only by implication, that an intention to sell the lot and farm can be raised, and that implication not being necessary to pay the several pecuniary legacies directed to be paid in the second item or clause of the will, it would, we think, be contrary to the best considered authorities, and policy of the law, to construe the terms used in that clause or section, as sufficient to create an equitable conversion of the real estate.

The power of sale in this case, not being necessary to pay the legacies mentioned in the second clause or section, no implied authority could have arisen under it, to convert the real estate into personalty.

Ho power, express or implied, is vested in the executors or trustees, in any subsequent clause of the will, to sell the real estate referred to.

In the twelfth item, it is declared, “If a balance may remain of my real and personal estate after all sums are paid and'invested according to my desire and wishes from section three to twelve, the balance I wish to have appropriated for the sole use of the American Colonization Society.”

The contingency mentioned in this clause, must arise before the bequest became operative. It could not create the contingency. The testator did not propose to create a balance, for the purpose of giving it to the Colonization Society. The residuary clause therefore, neither per' se nor taken conjointly with the second or other sections of the will, absolutely converted the realty into personalty.

The principles which control the decision of this case, were most thoroughly discussed, and skilfully applied in the argument of Mr. Scott, in the case of Ackroyd vs. Smithson, before Lord Chancellor Tiiuklow, in 1780, and all the adjudications since made, have been more or less, *104 the application of the same rules, to the varying features of cases as they arose.

Theories of construction have been built upon these decisions, which almost amount to arbitrary rules. Precedents have acquired the force of principles.

It would be an herculean task, to attempt to analyze and reconcile all the conflicting decisions in England and the United States. The briefs of the opposing counsel show how numerous and various these decisions are, and how shadowy and subtle some of the distinctions.

The basis of all the decisions is, that the intent of the testator, is the great guide in determining the question, whether there has been an equitable conversion of the realty into personalty.

It is conceded that the general rule is, an equitable conversion is not to be presumed beyond the purposes of thé will, or further than is necessary to gratify the several legacies and bequests, and when these fail, or lapse, that there is a resulting trust in favor of the heir, unless there is a clear and manifest expression of the will of the testator to the contrary. These conclusions are concisely expressed in Cox’s note to Cruse vs. Bailey, 3 P. Wms., 22, he says, the several cases on this subject seem to depend upon this question—“ivhether the testator meant to give to the produce of the real estate the quality of personalty, to all intents, or only so far as respected the particular purposes of the will?” 1 White and Tudor’s Leading Cases in Equity, 632, (Edition of 1852.)

An eminent elementary writer on wills, Mr. Jarman, declares this-doctrine requires the following qualification : “But that every conversion, however absolute in terms, will be deemed to be a conversion for the purposes of the will only, unless the testator distinctly indicates an intention that it is, on the failure of those purposes, to prevail as between the persons on whom the law casts the real *105 and personal property of the intestate, namely, the heir and next of kin.” 1 Jarman on Wills, 558,' cited by White and Tudor, as above.

The rule of law with regard to the equitable conversion of real estate, we take to be, “ that the heir-at-law must be effectually displaced, not by inference or implication, but there must be a clear, substantive and undeniable intent on the part of the testator to exclude him.” Amphlett vs. Parke, 2 Russ. & Mylne, 221, cited in 1 White and Tudor's Leading Cases, 719.

We concur with the learned Judge below, in the conclusion, that the devises and bequests in favor of the Lutheran Congregation of Boonsborough, and the Second English Lutheran Church, to be located in Baltimore, in the second item of the will, and the devise in the fifth item, of a house and lot situated in Boonsborough, to the Lutheran Congregation for a parsonage house, and the devises in the ninth and tenth sections of the houses and lots, and annuity and interest after the death of Tilly and Dolly, respectively, for the use of the Lutheran German Reformed Congregation of Eunkstown, and for the poor and destitute of Funkstown, are void, the said congregations and said poor, being incapable in law of taking such bequests. Dashiell vs. Attorney-General, 5 H. & J., 392 ; S. C., 6 H. & J., 1 ; State, use of the Trustees of the M. E. Church, vs. Warren, et al., 28 Md., 352 , et seq.

The pecuniary legacies bequeathed by the above recited items, in remainder after the termination of the estates for life, will pass by virtue of the residuary clause to the American Colonization Society; but the real estate embraced in the same items or clauses will not, for the reasons above assigned, pass to the American Colonization Society, but will devolve upon the heirs-at-law, in pursuance of the well established doctrine referred to by the Court below, and recognized by this Court in the case of Tongue’s Lessee *106 vs. Nutwell, 13 Md., 415 , viz., that in case of a devise of land over, being void, the estate descends to the heirs-at-law of the testator, and does not pass to the residuary devisee under the will. Perceiving no error in the decree below, the same will he affirmed.

(Decided 26th June, 1878.)

Decree affirmed.