Chester County Hospital v. Hayden

34 A. 877, 83 Md. 104, 1896 Md. LEXIS 62

• Court: Court of Appeals of Maryland
• Decided: March 26, 1896
• Status: Published

Opinion

Boyd, J.,

delivered the opinion of the Court.

Virginia Norwood, a resident of Baltimore City, died on the 26th day of November, 1893, leaving a last will and testament, by which she made some specific bequests, and left three pecuniary legacies aggregating seventeen thousand dollars. The will was written by the testatrix herself, and although it was inartificially drawn and not clothed in language usual in such instruments, it is sufficiently clear to enable us to ascertain her intentions as to the questions involved in this appeal. W. Mozart Hayden qualified as her executor, took possession of her personal estate, and settled an account in the Orphans’ Court of Baltimore City, which showed a balance’ after payment of expenses, debts and commissions^ and delivery of the articles specifir cally bequeathed, of a little over thirteen thousand dollars. He subsequently filed a bill of complaint in the Circuit Court of Baltimore City, asking that Court to assume jurisdiction over the further administration and settlement of the personal estate, to construe.the will and to grant him other relief, which so far as presented by this appeal will be hereafter referred to. The questions before us arise by reason of the fact that the balance of the estate is not sufficient to pay the pecuniary legacies in full, and we are therefore called upon to determine whether the Church Home and Infirmary of the city of Baltimore is entitled, under the terms of the will, to a preference over the other pecuniary legacies, or whether the three abate pro rata.

The provisions of the will involved in this controversy are, “ I wish my very good and faithful friend, Mr. W. Mozart Hayden, to wind up my small estate and to attend to all necessary business affairs; I will also ask him to hold in trust the sum of ten thousand dollars ($10,000) for the use and maintenance of my father, Lambert Smith Norwood, as long as he shall live. At the death of my father I want the whole amount of the ten thousand dollars paid over, free of trust, to the trustees of the Church Home and Infirmary on N. Broadway, Baltimore, Maryland, to be used for the endowment of a free room or free beds, to be known as the -Virginia Norwood Memorial.”

“To the trustees of-the Chester County Hospital, West Chester, Penn., I leave six thousand dollars ($6,000), to be used for the endowment of as many free cots or beds for women as can be had for that amount, and to be known as the Virginia Norwood Memorial.”

“To Emily Howard, the eldest daughter of John Beal Howard, I leave one thousand dollars ($1,000.”)

It is admitted that the corporations made parties to this suit are those intended by the testatrix, although the names stated in the will are not altogether accurate. Miss Nor-wood’s father died Feb. 19th, 1895, thus surviving her for nearly fifteen months. At the time of his death her estate had not been settled, but the executor provided for his bond and other necessary expenses, and also paid his funeral expenses. His condition at the date of the death of his daughter is thus described by a witness: “ Pecuniarily he was absolutely penniless and dependent upon his daughter for support. He was from age and general debility incapacitated from performing any work.” The will was dated July 16th, 1893, and the testatrix commenced it by giving as a reason for leaving so small an estate that she had spent part of the principal when she felt like doing so for her own benefit and pleasure, “ as there is no one on earth who has the slightest legal claim upon me or anything I possess,” but she evidently recognized the fact that she was under moral obligations to make some provision for her father, and there is nothing in the record to suggest that the sympathy and affection that should be expected from a daughter for an aged and helpless father did not exist. On the contrary, we find that she added to her will, although not a part of it, as it was apparently written after the execution of it, “ I would be glad if my father would consent to go to the Church Home in Baltimore to live. I know he would be well taken care of there,” which is signed “ V. N.” His condition and her care and treatment of him are circumstances to be considered in arriving at a proper conclusion as to what her intention was, which is after all the important and generally controlling guide for Courts in construing wills, when it can be discovered from the face of the will and such extraneous evidence as the law permits an investigation of.

The intention of the testatrix becomes important in this case, as the legacy for the benefit of her father was not a specific legacy, as it was not a “ bequest of a particular thing or money specified and distinguished from all others of the same kind;” nor was it a demonstrative legacy, as it was not given with reference to a particular fund for payment ; but it was a gift of a definite sum to be taken out of her estate without any designation of the part of the estate from which it was to be taken. It was, therefore, in the nature of a general legacy, and the question arises whether it can be gathered from the will that the testatrix intended It to be paid at all events, to the exclusion, if necessary, of •.the other pecuniary legacies. It is undoubtedly true that as .a general rule, when there is a deficiency of assets, all general legacies abate pro rata, but one of that class may be entitled to preference over the others if such be the manifest intention of the testator.

We cannot say that the legacy does not abate with the other two for the sole reason that it was for the benefit of the father of the testatrix, if there be nothing in the will to show such intention. As was said in Towle v. Swasey, 106 Mass, 107, “ The meritorious character of the legatee is not to be considered as affecting it when there is nothing in the language of the will or the character and declared purpose of the gift to indicate an intention.to prefer. The will is to be interpreted by what the testator has written, rather than by what he ought to have written.” But, as the Court proceeded to say, “ The circumstances of near relationship and dependence, though not of themselves sufficient, may, however, be regarded as constituting, in the language of the Lord Chancellor in Miller v. Huddlestone, 3 Macn. and G. 313, 528, ‘an auxiliary reason for allowing such priority where the words used in the will favor the notion of a priority to a sufficient degree.’ ”

Now, whilst it is true that a daughter is under no legal obligation to provide for her father, yet under the circumstances related above, it would be unnatural for her not to do so. If Miss Norwood had died intestate, her father, under the laws of distribution in this State, would have been entitled to the whole of her personal property, after payment of debts, costs, etc., as she left no child or descendant. Art. 93, sec. 126, of the Code of Public General Laws. There was, therefore, an “ auxiliary reason for allowing such priority,” if the language of her will sufficiently favors that result. Let us examine it, then, to determine whether such is the case. The first disposition she attempts to make of any of her estate is the provision for her father. She said: “ I will also ask him (the executor), to hold in trust the sum of ten thousand dollars, $10,000, for the use and maintenance of my father * * as long as he shall live that is, as we understand her meaning, she directed him to retain in his keeping, not to give up or relinquish, this sum of ten thousand dollars as long as her father lived, which she thus set apart for his use and maintenance. The income from that sum, after deducting the costs and charges incident to the trust, was not more than a reasonable amount for his support and care, especially when the uncertainty of the rates and prompt payment of interest are considered. The payment of the legacies to the Chester County Hospital and Emily Howard were not directed to be postponed until after her father’s death, but were payable, if her estate was sufficient, one year after his death, the time the law fixes, when the will does not name the time or indicate a contrary intention of the testator, for the payment of pecuniary legacies. It is not probable that she expected or intended the provision for her father to be affected by an abatement in favor of the other legatees, which would have been the case if her father had lived after the settlement of her estate, if the contention of the appellant be correct. If it be assumed that she supposed when she made the will that her estate was then sufficient to pay all the legacies in full, she knew, as shown by her will, that she was gradually diminishing it by the use of the principal, and she was presumed to know that her will only took effect from the date of her death, and hence was doubtless aware that if she and her father lived for any considerable time there might be a deficiency and for that reason directed her executor to hold the sum of ten thousand dollars for the use of her father, and thereby separate it from the rest of her estate. We are of the opinion that her intention to at least give her father the preference over the other pecuniary legatees is manifest from the language of the will, which, although not in such terms as some one learned in the law would have used, is sufficiently clear to satisfy us that she intended her executor to set apart this sum for her father’s benefit and after doing so then to pay the other pecuniary legacies in full, if her estate be sufficient, or pro rata in the event of a deficiency, as otherwise her manifest purpose of providing for her father during his life might have been defeated.

But it is contended by the appellants that if such be the case as to the father, upon his death there was no preference in favor of the Church Home, and the case of Towle v. Swasey, supra, is relied on to sustain that position. In that case it was held that there was a preference in favor of a son of the testator to the extent of the income on ten thousand dollars for his education and support during his minority, but that the provision that the principal should be paid to him when he arrived at the age of twenty-one years did not give him such preference, and it abated with other legacies. But the Court said: “ There is nothing in the will which gives that part of the legacy any preference.” That is not the case with the will now before us. It expressly says, that, “ At the death of my father I want the whole amount of the ten thousand dollars paid over, free of trust, to the Church Home and Infirmary,” etc. The meaning of that language does not admit of controversy. Having determined that the testatrix directed the setting apart of the ten thousand dollars for her father’s use and maintenance, during his life, we cannot now say that only a portion of it should be given to the Church Home without ignoring the plain and unequivocal meaning of her wish as expressed in her will when she said, “ I want the whole amount of the ten thousand dollars paid over.” We do not agree with the learned counsel for the appellants that this expression was simply intended to mean that the principal of the fund was not to be used by the trustee for the maintenance of her father. The gift in trust for the benefit of the father showed with sufficient clearness that only the income from it was to be used, and the language now under consideration was not explanatory of it, but is the part of the will by which the legacy to the Church Home was left. It gets nothing except what comes through the expression “at the death of my father I want the whole amount of the ten thousand dollars paid over,” etc., and it would be doing violence to the wishes of the testatrix, as gathered from the language used by her, to take the term “whole amount” from this sentence, and import it into the previous provision for the life estate. The legacy to the Church Home must be paid in full and does not abate with the other two.

The only other objection presented by this appeal, is to the part of the decree which directs the payment to the executor of so much of the sum advanced by him for Mr. Nor-wood “ as the interest accrued on the said sum of ten thousand dollars, bequeathed in trust for the said Lambert Smith Norwood, from the death of the testatrix to the date of his death (less his executor’s commission thereon) will avail to pay,” etc. The bonds themselves were not bequeathed, but only the sum of money and no particular bonds or other securities had been actually set apart to this legacy by the executor when Mr. Norwood died. If the estate, as seems to have been the case, was earning interest when Miss Nor-wood died and continued to do so until the death of her father, interest should be allowed between those periods. No objection is made by the appellant to the payment of some interest to the life-tenant during the first year after the death of the testatrix,'but only to the amount of it. Under the circumstances we think he was entitled to that allowed by the decree, and as the executor made advancements to and for him, he is entitled to be reimbursed to the extent of his payments, not to exceed, however, the amount of interest on ten thousand dollars between the dates named.

(Decided March 26th, 1896).

Decree affirmed; costs to be paid out of phe estate.