Hutchins v. Pearce

Page, J.,

delivered the opinion of the Court.

This is an action of ejectment, the determination of which depends upon the construction of the last will of John B. Pearce. Mr. Pearce died in 1874, leaving surviving him a son and two daughters. At the time of his death, his son, Jacob M. Pearce, was forty years of age, married and with a family of five children, ranging from one to twelve years *444 in age. One of his daughters, Mary Louisa, was thirty-six years of age and unmarried; the other, Sophia Augusta, who has since intermarried with the defendant, John M. Dennison, was thirty-two years of age, and also unmarried. His will is dated the 23rd of February, 1872, and a codicil thereto, the 18th day of July, 1874. Mary Louisa Pearce died without having ever married, leaving a last will dated the 16th of June, 1883.

By his will John B. Pearce, after providing for the payment of his debts and funeral expenses, by the second clause bequeathed to his daughter, Mary Louisa, certain ground rents, particularly described, of the total annual value of $1,448, “subject to the trust, however,” thereinafter created; and by the third paragraph, to his other daughter, Sophia, certain other ground rents; of the total annual value of $1,419.50, also subject to the same trust. The fourth paragraph is as follows: “ I will and bequeath unto my daughters, Mary Louisa Pearce and Sophia Augusta Pearce, each the sum of five thousand dollars, to be invested in good securities or ground rents, and to be held in trust by my son., J. Myers Pearce, whom I hereby appoint trustee for my daughters, in all the property I have devised to them, both real and personal; the rents and incomes derived therefrom to be paid to them for their especial benefit; and in case my daughters die without issue, then such portion or portions shall become part of my estate and be divided between my surviving heirs.” After sundry minor bequests, he then bequeaths the rest of his estate to his son. The codicil is as follows: “ I annul all that part of my said will in which I directed my son to invest for my two daughters five thousand dollars each; and in lieu thereof T give and bequeath to my daughter, Louisa, four ground rents on the west side of Oregon street, near Thompson street, in the city of Baltimore, each rent 117 dollars, payable in March and September; and six rents of 90 dollars each on the east side of Gilmor street, payable half yearly on the 1st of January and the 1st of July.

*445 “ And unto my daughter Augusta, I give and bequeath five ground rents on the N. W. corner of Carey and Edmond-son streets, each lot ioo dollars annually, payable on the ist of January and 1st of July, and a rent of 400 dollars on the York turnpike, fronting thereon 100 feet, running back to Barclay street 400 feet, payable quarterly, in May, August, November and February; the same rents to be held in trust as directed in my foregoing will.”

The first question that arises is upon the proper construction of the fourth paragraph of the will, and this, we are of opinion, is free from difficulty. Though the testator, in the first clause, uses no words of perpetuity, there is nothing in the will to indicate that he intended his daughters should take anything less than an absolute interest in the property. This, however, is subject to the limitation, that “ in case my daughters die without issue, then such portion or portions shall become part of my estate, and be divided between my surviving heirs.” The words “ die without issue,” unless a contrary intention appear by the will, must be construed, since the Act of 1862, ch. 161, to mean a want or failure of issue in the lifetime or at the time of the death of the person so taking. Lednum v. Cecil, 76 Md. 153 ; Mason v. Johnson, 47 Md. 355 ; Devecmon v. Shaw, 70 Md. 224 ; Gambrill v. Forest Grove Lodge, 66 Md. 17 . And we are of opinion that this construction effecutates the intention of the testator, as gathered from a fair examination of the whole instrument when taken in connection with his surroundings and the objects of his bounty. He had three children, a son and two daughters, and to them he bequeaths his entire estate, with unimportant exceptions. The daughters were unmarried; one of them was thirty-two years of age, the other thirty-six. He must have contemplated the possibility of one or both dying without leaving children, and if that did so occur, it appears to have been his wish that such portions of his property as he had left them should pass to such of his own descendants as might then survive. To make this desire effectual, he created a trust, *446 which, by the very terms he employs, was not to commence until after his own death, and could not terminate, as to each portion, until the death of each of the daughters. This general intent, plainly exhibited as it is by the structural plan of the will, as well as by fair interpretation of the terms employed by the testator, would be entirely frustrated by construing the instrument so that the limitation can take effect only upon the death of the daughters or either of them in the lifetime of the testator. The property, however, described in the declaration, is part of that which was devised to Mary Louisa by the codicil, and it therefore becomes necessary to determine what the nature of the interest was that passed by its provisions. The terms which the testator here employs are: “ I annul all that part of said will in which I directed my son to invest for my two daughtert $5,000 each; and in lieu thereof, I give” * * (by two clauses) certain ground rents to each of the daughters ; and, at the conclusion of the second clause, are these words: “ The same rents to be held in trust as directed in my foregoing will.” The appellant, while conceding that these words apply to the bequests made to both daughters by the codicil, insists that the property is not subject to the limitations contained in the will. Now, it is a well settled principle that “ the will and codicil are to be contrued together as one instrument; but if there be any conflict or repugnancy between them, the codicil * * must operate in preference to the will.” Lee v. Pindle, 12 G. & J., 305 ; Thomas v. Levering, 73 Md. 451 . We do not think the codicil shows a change in the intention of the testator. It annuls only that part of the will in which the testator had directed his son to invest $5,000 for each of his daughters, and in lieu of this substitutes certain ground rents; otherwise the fourth paragraph of the will remains unaltered. The gifts to the daughters by the will, were to be subject to a trust, of which the purpose was, to more effectually secure the retention of his property in his own family, and what is bestowed by the codicil is to be held in trust in the same *447 manner. For the trust so created by the codicil, it would be difficult to assign any sufficient reason that can carry with it the imputation of an intention different from that to be gathered from the will itself. The will and codicil are inconsistent only in respect to the description of the property bestowed. Johns Hopkins Univ. v. Pinckney, 55 Md. 381 . The things bequeathed by the codicil are mere substitutions for that which was given by the will, and must be “ taken with all its accidents.” Shaftsbury v. Marlborough, 7 Simons, 237. This was not the case in Buchanan v. Lloyd, 64 Md. 308 . There the Court, said, “ there are no materials in the codicil or in the will and codicil together, of which we can predicate a limitation over to the children of Mrs. Winder,” and to so construe the codicil would have the effect to curtail the effect and operation of the residuary clause in the will. A gift by the will is-not to be cut down by uncertain expressions. Johns H. U. v. Pinckney, supra; Mann v. Fuller, Kay, 624. In this case, to carry out the general intention as gathered from a full examination of the entire will and the codicil, the devise of the ground rents in the codicil must be read into the fourth paragraph of the will, and the daughters respectively will take an equitable estate in fee, subject to be defeated in the event of their dying without issue living at the time of their respective deaths. Thomas v. Levering, 73 Md. 455 . We think there is nothing in conflict with what we have said in Fairfax v. Brown, 60 Md. 58 ; Dorsey v. Dorsey, 9 Md. 40 , or in Hill v. Hill, 5 G. & J. 88 . The decision in Fairfax v. Brown was based upon the intention of the testator as indicated by the particular language of the will. The Court said, “ after giving * * an estate in fee to his children * * it would not be a fair presumption that he intended to reduce the estate to an estate for life, if the terms used were of dubious and uncertain meaning.” In Dorsey v. Dorsey , the devise was to his wife, “ and in case of the death of both myself and wife, &c.,” and it was held that such expressions unexplained are to be confined to the *448 event of death happening during the life of the testator. And in the same case the Court also said that, from the “ whole character of the paper, such was the intention of the testator.”- (Decided February 28th, 1895.)

From what we have said it follows that we find no error in the ruling of the Court below, and the judgment will therefore be affirmed.

Judgment affirmed.