Magruder v. Carroll

4 Md. 335

• Court: Court of Appeals of Maryland
• Decided: December 15, 1853
• Status: Published

Opinion

Le Grand, C. J.

delivered the opinion of this court.

This is an appeal from an order of the circuit court of Prince George’s county, sitting as a court of equity, refusing to grant an injunction to prevent the sale, under an order of the orphans court of the same county, of certain negroes belonging to the estate of the late Michael B. Carroll.

The bill in substance alleges that, Mr. Carroll being possessed of a large estate, real and personal, made his will in 1837 and died in August 1851. That he specifically devised and bequeathed the principal part of his estate to his wife, who after making a will by which she manumitted the negroes, died in 1853. That subsequently to the making of his will, he sold a portion of the real estate of which he was seized at the time of making his will, and purchased other real estate for which he did not pay, and of which he died seized.

The bill claims because of a request contained in his will, that his negroes should not be sold or disposed of for the payment of his debts, but that provision should be made for discharging the same out. of the other personal property and effects, which he should leave at the time of his death, that his real estate and other personal property should be first applied to the payment of his debts before the negroes are resorted to. It also claims that the negroes were manumitted by the will of Mrs. Carroll, alleging that at the time of the making of her will, she held them not as executrix of her husband, but as legatee under his will.

The bill also alleges a sufficiency of real estate and personal property other than negroes, to pay all the debts of the estate of Mr. Carroll.

The heirs at law of Michael B. Carroll, claim the lands acquired by him subsequently to the execution of his will, in virtue of that inflexible rule of the common law, which declares that no devise can pass real estate acquired after making of the will, although the will should be express that it should pass.

In opposition to this pretension it is said, that the act relating to devises passed at December session 1849, chapter 229, alters the common law rule and must determine the rights of all parties under the will of Mr. Carroll. That our interpretation of it may be the better understood, we give it entire. The 1st section is as follows: “That every last will and testament executed in due form of law after the first day of June next, shall be construed with reference to the real estate and personal estate comprised in it to speak and take effect as if it had been executed on the day of the death of the testator or testatrix, unless a contrary intention shall appear by the will.” The 2nd section is in these words: “That the provisions of this act shall not apply to any will executed before the passage of this act, by any person who may die before the first day of June next, unless in such will the intention of the testator or testatrix shall appear, that the real and personal estate which he or she may own at his or her death should thereby pass.” The 3rd section provides that the law shall take effect on the first day of June 1850.

Michael B. Carroll made and published his will in the year 1837 and died in August 1851.

We understand this act of Assembly has been considered and judicially interpreted by the chief justice of the United States, in a case recently tried in the circuit court for the district of Maryland, and that he held it not to operate upon wills executed prior to the first day of June 1850. We have not seen the reasons for this opinion, and sincere and profound as is our respect for the legal erudition and great mental acumen of that distinguished jurist, we nevertheless cannot concur in the interpretation imputed to him. Our opinion is, that the act has a retroactive operation, and does control the construction of wills executed before the first day of June 1850. We do not say that it alters the common law rule of interpretation as regards all wills executed prior to that time, but merely wish to be understood as deciding, that a will executed before the time mentioned in the act may, according to circumstances to which we will presently advert, fall within its purview and be controlled by it, and that we regard the will of Mr. Carroll of such character.

On the part of the heirs of Mr. Carroll, it was very ably and ingeniously argued, that the first section ought to be interpreted so as to place in immediate connection the words “after the first day of June,” with the preceding word “executed,” and thus confine the operation of the section to those wills which should be executed after the first day of June 1850; while on the part of ,the complainants it was contended, that the words “first day of June” ought to be understood as fixing the period after which all 'wills, no matter when executed, should receive the indicated construction.

So far as this section is concerned, if we confine ourselves to the grammatical sense of the words of which it is constructed, its interpretation will depend upon the accentuation which may be given to certain parts of it, and on this rests the opposing theories in regard to its true meaning. _ It may be read so as to make it applicable only to such wills as should be executed after the first day of June 1850, or with equal propriety, so as to make its rule of construction applicable after the said first day of June 1850, to a will executed before or after that day if it were executed in due form of law. The act is very inartificially drawn, and is a striking instance of what grammarians term a false collocation of words, whereby their intended significance is rendered doubtful.

If the act were constituted of the first section we would not experience any difficulty in deciding, that it was intended, and did in fact, operate only on wills executed after the first day of June 1850; and this interpretation would be in consonance with the well established principle, that statutes are not to have a retroactive effect, unless it be perfectly obvious it was the intention of the legislature. But the great difficulty arises out of the second section.

The first section, when taken in connection with the second, has, in our judgment, an operation on devises executed before the first day of June 1850. It is a well recognized canon of interpretation, that if any part of a statute be intricate, obscure or doubtful, the proper way to discover the intent, is to consider the other parts of the act; for the words and meaning of one part of a statute frequently lead to the sense of another, and in the construction of part of a statute, every other part ought to be taken into consideration. Dwarris on Stat., 697.

Keeping this rule in view, the question is presented — what is the effect of the second on the first section of the act ? It declares that “the provisions of this act shall not apply to any will executed before the passage of this act, by any person who may die before the first day of June next, unless in such will the intention of the testator or testatrix shall appear, that the' real and personal estate which he or she may own at his or her death, should thereby pass.”

As we understand this second section it provides for an ex~ emotion of certain wills from the operation of the statute: to-wit, wills made before the 23rd day of February 1850, if the testator or testatrix might die before the first day of June 1850, and in which the intention of the testator or testatrix does not appear that the real and personal estate which he or she may own at his or her death, should thereby pass. In other words,. we regard the first section when taken in connection with the second, (and according to the well established rules of interpretation we arc bound to so consider it,) as referring to wills executed before as well as after the first day of June 1850, and that the office of the second section is merely that of an exception, to withdraw from the general purview and operation of the first section, the particular wills specifically mentioned in the second section.

From this it follows ; if a party made a will before the 23rd day of February 1850, and died before that day, or, if he made a will before and died after the first day of June 1850, then the statute would operate whether or not his intention was expressed in his will, that all his real and personal estate at the time of his death should thereby pass ; the exemption from the operation of the law as specified in the second section requiring two things : — 1st. That the will should have been made before the 23rd day of February 1850; — and 2nd. That the testator might die between the 23rd day of February and the first day of June. Jn other words, the section con as in existence at the time of the passage of the act whose will was to be embraced by the exemption. guage is not, that shall have died before the first but “who may die’’’’ before that day. The death \yps an event to happen after, and not one which may have tak< fore the passage of the act.

If the construction insisted on by the counsel for the of Mr. Carroll be adopted, then, the second section of the act has no meaning, for if the first section only applied to wills to he executed after the first day of June 1850, there was no necessity by the second section to exempt from its operation any will executed before that day.

But it is urged, that the construction which we have given would, in some instances, operate great confusion and uncertainty. This may be so, but this would be the effect of any of the interpretations which have been placed on the act by those who suggest this difficulty. To avoid such results, the second section would have to be expunged from the act, and this, we have no power to do. But in a case like the one before us there is no such consequence. So far as this case is concerned there is no question of vested rights. The statute, to use the language of the court in the case of Pray and another, vs. Waterston, et al., 12 Metcalf, 264, “disturbs, (in this case,) no vested rights, for before the death of the testator his heirs had no right whatever to any part of his estate. This statute therefore is to be construed according to the meaning of its language and the intention of the legislature.” The will was made before the passage of the act, and the testator did not die until more than a year thereafter. The law imputes knowledge to him of the provisions of the act of 1849, and the interpretation it would receive. He had ample time to alter his will, and failing to do so must be considered as having intended all his property real and personal should pass under it. This view, as already observed, does not interfere with any-vested rights of the heirs of Mr. Carroll, for they could not have any before his death, and this did not occur until after the first day of June 1850 — not until August 1851.

But, whilst we do not concur in opinion with the counsel for the heirs as to the true meaning of the act of 1849, we nevertheless are of opinion the circuit court properly refused to grant the injunction asked.

The bill is filed by the executors of Mrs. Carroll against the administrators de bonis non of Mr. Carroll and his heirs at law. The gravamen of it is, that he specifically bequeathed his negroes to his wife and desired they should not be sold, and that his debts should be paid out of his other estate. That she manumitted them, and that there is other personal and real estate enough to pay the debts due by his estate. Injunction is asked to prevent the sale of the negroes under an order of the orphans court of Prince George’s county, which,, it is alleged, is about to be done. It is also claimed in the bill, that at the time of the will of Mrs. Carroll she must be considered as holding the negroes as legatee and not as executrix, the time specified by law for winding up the estate of her husband having elapsed.

This last ground cannot avail. There is no allegation in the hill that a final account had been settled by her, and the bill shows that a large amount of debts remained unpaid, and that the creditors of the estate of her husband had commenced proceedings to secure their payment, which proceedings are still pending. In this claim of the bill we suppose hut little confidence was, or is reposed by those who framed it; at all events, there is nothing in it. There is nothing in the facts-of the case to justify the presumption, that there had been a final settlement of the estate of Michael B. Carroll, and all its debts paid off; the truth is, the bill directly contradicts the facts out of which such a presumption could arise.

It is contended on the part of the complainants, that the-real estate and personal property, other than the negroes of Michael B. Carroll, ought to be applied to the payment of his debts before the negroes are resorted to. This may or not he so, and in regard to it we pass no opinion, because the question is not before us in this case. This is not a bill filed on behalf of the negroes, but by the executors of Mrs. Carroll, and they must occupy the same position in regard to the creditors of Michael B. Carroll, who are represented by the administrators de bonis non, as she would have- done had the bill been filed by her instead of by them. And if she were the party complainant how would the case stand? Why thus: — Michael B. Carroll died in debt leaving a will, by which his real and personal estate is specifically devised and bequeathed to his wife. His creditors would have the right to proceed against his entire estate for payment, first, however, against the personal as the primary fund. Their rights could not he affected by anything he might request in his will; their claims would attach to his entire estate. He did not manumit his slaves; and, moreover, this is not the case of contribution and marshalling of assets between different devisees and legatees, because here Mrs. Carroll was specific devisee and legatee, and residuary devisee and legatee; she in fact, with but trifling exception, took under the will the whole estate. Had she, immediately on obtaining letters of administration, manumitted the negroes, it could not be pretended such manumission could have affected the rights of the creditors of her testator; and, it must be obvious, if she could not do it by her act as executrix, that she could not accomplish it by her will.

For these reasons we affirm the order of the circuit court refusing the injunction.

Order affirmed.