Boyd v. Sachs

28 A. 391, 78 Md. 491, 1894 Md. LEXIS 11

Opinion

Bryan, J.,

delivered the opinion of the Court.

The decisive question in this case depends upon the construction of a will. Daniel McDonald having executed his. last will and testament in such manner as to pass real estate, died in the year eighteen hundred and forty-five. In the determination of this case it is necessary to take into view every portion of the will, and we shall therefore quote the bequests and devises at large: “I give, devise, and bequeath all of my estate, of whatsoever kind or nature, to my beloved wife, for and during the term of her natural life, .provided that during the same time she continue a widow and unmarried.

“And after her death, I will and bequeath all my personal estate remaining at the time of her death, to be equally divided among my children, or their representatives, {per stirpes) living at the time.

“And as to my real estate, I give and devise the same, after her death, to my son Daniel and his heirs, provided, however, that from the time of his or their receiving the same and coming to possession, he or they shall pay annually, for the space of ten years thereafter, the sum of one hundred dollars each annually to my daughters, Mary Jane and Caroline, if living, and if dead, to the heir or heirs or legal representatives of the said Mary Jane and Caroline, or the survivor of them.

“And I do further will, that in case of the death of my son Daniel, before his mother, that the said real estate so devised to him shall go to his sisters aforesaid and their heirs as tenants in common, and that, in the event of the marriage of both or either of them, their shares shall be so secured as to be free from any debts, contracts, or obligations of their respective husbands.

“And further, 1 do will that in the event of any future marriage of my wife aforesaid, that from that time all claim and right of my wife to the benefits of this will shall cease, and the provisions herein respecting my children, shall take effect immediately thereon.” The widow, Jane McDonald, in the year eighteen hundred and forty-eight, married Michael McDonald, who died within a few weeks after the marriage. During the same year she married Seaver Hatch, who died in the year eighteen hundred and fifty-five. The son of the testator, and the two daughters executed deeds to their mother after the death of Hatch, her third husband. The deed of the daughter Mary Jane, executed in eighteen hundred and sixty, conveyed to her mother for life, all her estate and interest under the will of the testator. Daniel, the son, and Caroline, the other daughter, having previously made conveyances to their mother, executed a deed in eighteen hundred and sixty-six, which conveyed to her in fee all their right, title and estate in the real estate devised by the will of the testator. Mary Jane, in eighteen hundred and sixty-two, married Francis J. Boyd, and died in eighteen hundred and sixty-four, having previously devised all her property to her husband. Mrs. Hatch mortgaged the real estate above mentioned in eighteen hundred and eighty-one to Bruce Jenkins, and it was afterwards sold-under the mortgage to Louis Sachs, one of the defendants. Daniel McDonald, the son, died in eighteen hundred and eighty-two. Mrs. Hatch died in eighteen hundred and ninety. Boyd brought an action of ejectment against Sachs and wife and Freedenberg, to recover the real estate devised by McDonald’s will. Judgment having been rendered against the plaintiff, he has appealed to this Court.

Although the plaintiff’s declaration proceeds for the whole of this property, in reality, as shown by the prayers for the instruction of the jury, he claims only an undivided half of it. It is clear upon the face of the will that the testator intended that every interest which he had given to his widow should cease and be divested in case she should marry again. In the first place, it was given expressly on the condition that she should continue a widow and unmarried; and, secondly, he declared by a special clause of his will that, in the event of her marriage, all her claim and right to the benefits of the will should cease, and the provisions respecting the children should take effect immediately. Subject to these conditions "all of his property was given to the wife for life, and after her death to the children. By the third of the clauses of the will which we have quoted, the real estate was given to his son Daniel and his heirs, encumbered with certain charges in favor of his daughters. When the widow married again, her life estate was defeated, and brought to an end, as effectually as if she had died; her rights were entirely extinguished, and the allotment of the property to the children was to be made without reference to her. This is explicitly stated in the last clause of the will. And without this clause it would have been the necessary result of its proper construction deduced from the manifest purpose of the testator. In Clark, et al. vs. Tennison, et al., 33 Md., 85, there was a devise to the testator’s wife as long as she remained his widow, and at her death to his children. It was held, that it was the intention of the testator to give the property to the children on the termination of the wife’s estate, whether that occurred by death or marriage; and that therefore upon her marriage the children’s interest' vested in possession. If the children’s right of possession had been postponed to the death of the mother, inasmuch as her life estate had been forfeited by marriage, there would have been a hiatus until the period of her death, and to this extent there would have been an intestacy, which would have been in opposition to the testator’s purpose. And so in the present case, the widow’s marriage was to have the same <ffcct upon all the interests devised and bequeathed bj the will as would have been wrought by her death. By; the third clause of the will the real estate was given to Daniel, the son, after the widow’s death, and by the fourth clause it was stated that in cas.e of his death, before the widow, it should go to his sisters and their heitp, as tenants in common. The plain meaning of these clauses is that Daniel was to take the real estate on the termination of the widow’s life estate, (by death or marriage,) and that if he should die before such termination, it should go to his sisters. It is impossible to read this will without seeing that the testator’s intention was to divide his property among his children as soon as the provision was satisfied which he had made for his widow. It would defeat the whole scheme of the will to hold that the son was to take the real estate as soon as the widow should marry, and to lose his title to it if he died in her life-time. Especially unreasonable would this construction be in the light of the charges in favor of the sisters, which are imposed upon the real estate by the third clause of the will. As soon as the devise to him should vest in possession, he was required to pay each of them one hundred dollars a year, and this payment was to continue for the space of ten years. Now, if after paying these charges for ten years, his title is liable to be defeated by his death in the life-time of the widow, the devise might be an injury to him, instead of a benefit. A construction making such a result possible certainly would not be adopted, unless imperatively required by the words of the will. It is in opposition to a well established rule declared by this Court in Glenn, et al. vs. Spry, 5 Md., 118, and in Snyder vs. Nesbitt, 77 Md., 576: “Every devise is intended for the benefit of the devisee, and when a devise is thus encumbered, un less the devise^ were to take the fee, he might, by dying before jhe had re-imbursed himself the amount charged oufc- of' the land, be a loser by the devise, and what was intended asa benefit become an injury; and the rule applies to every case where a loss is possible. * * f It makes no difference if the sum he less than the vs^lue of the land devised. No regard is paid to the disparity, however great." This rule of construction was ¿applied to wills containing devises very different from'the one now under consideration. But the rule is a salutary one, and it furnishes valuable aid. in ascertaining the meaning of a will like the one before us. To say that Daniel, the son, was to take a fee, and after paying these annuities to his sisters, was to lose his title in case he died in the life-time of the widow, is to attribute a purpose to the testator which is not disclosed on the face of the will. The death of the widow after her marriage was an event which the testator did not take into consideration at all; he made none of his legacies or devises dependent upon it, because the remarriage cut her off from all interest in his estate, and all connexion with it.

Daniel having a fee simple indefeasible conveyed it to his mother; the daughter Carolineconveyed to her in fee all her interest in the real estate, and the daughter Mary Jane conveyed all her interest in it to her for life; this meant all the annual payments which should become due in her mother’s life-time. The mother lived for twenty-four years after the acquisition of the titles of Daniel and Caroline, and thirty years after the conveyance from Mary Jane. It is impossible to suppose that the charges on the land are now in existence. If they .were unpaid at the time the widow acquired the fee, they were extinguished by the union of the title and the charges in one owner. Mitchell vs. Mitchell, 2 Gill, 236. The widow therefore was competent to mortgage the property, and the sale under the mortgage conveyed her fee simple title. Consequently Boyd, the plaintiff below, took no title to this real estate under the will of his wife. This being the result to which we have arrived, it is irrelevant to consider in detail the prayers granted and refused by the trial Court.

(Decided 18th January, 1894.)

Judgment affirmed.