Olivet v. Whitworth

33 A. 723, 82 Md. 258, 1896 Md. LEXIS 15

• Court: Court of Appeals of Maryland
• Decided: January 9, 1896
• Status: Published

Opinion

Boyd, J.,

delivered the opinion of the Court.

From the record in this case we find that William Charles Whitworth and his wife, Sophia Matilda Whitworth, died in September, 1873, in London, England, leaving surviving them five children. The youngest of these, Sophia Matilda, who was about two years of age when her parents died, was taken charge of by an uncle, who shortly after placed her in an orphan asylum in London. Not long afterwards Mrs. Ann P. Pleasants, an American lady who was traveling abroad, adopted her. She assumed the name of Aimée Page'Pleasants and lived with Mrs. Pleasants until the death of the latter, who left her a very handsome estate by her last will and testament, in which she appointed George H. Fisher and Ludovic C. Cleeman, of Philadelphia, Pa., executors and trustees of her estate and guardian of this child,, who was then about sixteen years of age. Mr. Cleeman brought her to this country where she resided for several' years, and then returned to Geneva, Switzerland, where she subsequently engaged herself to be married to Mr. Olivet. They were married in June, 1892, in the city of Washington, D. C. On the 8th day of that month Miss Pleasants executed, in the city of Baltimore, a deed of trust to the Safe Deposit and Trust Company of Baltimore, with the knowledge and approbation of Mr. Olivet (as was evidenced by his uniting in the instrument), by which she directed fifty thousand dollars of her property, which was still held by Mr. Cleeman, as guardian and trustee under the will ot Mrs. Pleasants, to be paid over and delivered to the Safe Deposit and Trust Company of Baltimore upon her arrival at the age of twenty-one years, and as soon as it was freed from the trust created by the will of Mrs. Pleasants, to be held by said company in trust for her during her life, and, after providing for her receipt of the income from the property so held in trust and for changes of the investments, etc., made the following provision: “And from and after the death of the said Aimée Page Pleasants, to convey, assign and deliver the same to such person or persons as the said Aimée may by last will and testament, or by instrument in the nature of a will executed in the presence of two witnesses, limit, nominate and appoint her coverture, notwithstanding. And finally, in case she shall die without executing a will or instrument of writing in the nature of a will as aforesaid, to convey and assign the same to the heirs at law and next of kin of the said Aimeé Page Pleasants, ■exclusive of any marital rights.”

On the 9th day of January, 1893, she made a holographic will at Geneva, by which she made her husband her sole legatee of everything, in case she should die without posterity, and on the 12th day of February, 1893, she made a holographic codicil by which she confirmed her will, and ■after making pecuniary legacies amounting to twenty-five thousand francs, stated: “ I desire that all my fortune, as well — that placed in the Safe Deposit and Trust Company, Baltimore, Maryland, U. S. of America, as the rest thereof, be handed over at my death to my husband, Alfred Olivet, my sole legatee.”

It is satisfactorily proven that the will and codicil were made according to the forms required by the laws of the places where they were executed, and therefore under section 319 of Art. 93 of the Code of Public General Laws of this State, they are valid and sufficient to pass the title to her property in the hands of the Safe Deposit and Trust Company of Baltimore — provided the power reserved in the deed of trust above quoted, was legally executed. The question, therefore, to be determined by us is, whether that power required her will to be “ executed in the presence of two witnesses” — the appellees, as her next of kin, contending that it did, whilst the appellant claims that this clause ■only applied to an “ instrument in the nature of a will.”

In considering this question it is proper to constantly Bear in mind the fact that the power of disposition was not given by a third person, but was reserved in the deed of trust by the testatrix herself. Had she not executed the deed, her right to dispose of the property in question by this will and codicil was absolute and free from doubt. The question presented is so narrow that, if punctuation be entirely disregarded, the language used- is capable of being interpreted to meet the views of either side. As was well said in argument, if it be read aloud, different meanings may be given it by the tone of the voice or the accentuation of the several clauses. If the term “or by instrument in the nature of a will ” be used parenthetically, then the phrase “ executed in the presence of two witnesses,” would apply to “ last will and testament ” as well as to “instrument in the nature of a will,” whilst if we pause after reading “last will and testament” and then read “ or by instrumeut in the nature of a will executed in the presence of two witnesses,” as one unbroken sentence, a proper grammatical construction would confine the limitation to the “ instrument in the nature of a will.” The expressions used being so nearly poised as to have their meaning thus affected, it is manifestly proper to so construe them as to give effect to the will, rather than to make it nugatory so far as this property is concerned, if that can be done without running counter to their natural meaning, their grammatical construction, or to controlling legal authorities.

That punctuation alone is not necessarily conclusive must be conceded, as it is well known that draughtsmen of legal instruments frequently ignore all the rules on that subject, to which grammarians and rhetoricians attach great importance. The most learned and accomplished lawyers oftentimes pay but little attention to it in their preparation of legal documents. This may be because the copyist or the writer to whom the paper is dictated has not followed the directions or intonations of the author, or it may be because it is known that the cases are few that are determined by punctuation, or for other reasons. But when there is an ambiguity which may be wholly or partially solved by it, provided the punctuation itself has not created the ambiguity, it can be considered (Weatherly v. Mister, 39 Md. 629; Black v. Herring, 79 Md. 149), but it can never be permitted to overturn what seems the plain meaning of the whole instrument. If we make any use of it in this case, it must inure to the a-dvantage of the appellant. There is' in the original deed, which was brought before us by agreement, a comma after “ last will and testament,” and also after the word “witnesses,” so that if we follow the punctuation the phrase “ executed in the presence of two witnesses,” does not properly apply to “ last will and testament.” Although punctuation alone is not a safe standard by which to interpret a writing, yet if there be an ambiguity it may shed light on the' meaning of the language to be interpreted, and in this case we must ignore it if we adopt the construction contended for on behalf of the appellees. If Miss Pleasants intended to reserve the right to dispose of this property either by a duly executed will, or by some instrument in the nature of a will, provided she executed the latter in the presence of two witnesses, the draughtsmen of the deed of trust used language that was so punctuated as to be capable of that meaning. Therefore, without relying on the position of these commas as at all conclusive, in our search for the intention of the donor of this power, we can at least borrow from them such light as they are permitted under the law to give.

In determining whether the mode of execution prescribed by the deed is applicable to “ last will and testament” as well as to an “ instrument in the nature of a will,” we will first consider those terms for the purpose of ascertaining whether they are synonymous or practically the same. To say that they are of “the same nature,” as argued by.the appellees, is but to do little more than to repeat the language used in the power, as one is a “ will ” and the other an instrument “ in the nature of a will." But are they such equivalent terms as to make the mode prescribed for executing the one necessailry applicable to the other ? It is true that both are testamentary papers — taking effect only after the death of the maker — and there are undoubtedly cases in which instruments have been called wills and yet have not had testamentary forms. For example, in Carey v. Dennis, 13 Md. 1, bonds, not intended to constitute any binding obligation on the obligor, or to confer any right on the obligees, or to have any effect until after the death of the obligor, were held, not to be evidences of debt, but in the nature of testamentary papers. The Court quoted from Justice Buller, in Habergham v. Vincent, 2 Ves. Jr. 231; that “The cases have established that an instrument in any form, whether a deed-poll, or indenture, if the object of this purpose is not to take place till after the death of the person making it, shall operate as a will.” But a “ will ” must be made by one having capacity to make it, and must be executed in one of the modes fixed by law, and many papers that were prior to 1884 held in this State to be wills for the purpose of passing personal property, would not now be valid, as the Act of the Assembly passed in that year required all wills executed in this State to be attested and subscribed in the presence of the testator by two or more credible witnesses. Whilst an “ instrument in the nature of a will,” if executed in pursuance of a valid power, may be made by one not having testamentary capacity and in a different form from that prescribed by the laws governing the execution of wills, and yet have the effect of a will. The two instruments may accomplish the same result, but may not be in the same form. It is the mode of execution and not the effect of these instruments we are now considering.

In Schley v. McCeney, 36 Md. 275, Judge Alvey quoted from Chance on Powers, where it is said: “ Where a party directs a power to be executed by 'will’ simply, it may be a reasonable presumption that he means such a will as would be requisite to dispose of the like species of prop'erty; but when he prescribes certain formalties, the presumption ceases; it seems fair then to conclude that all which he means, is a testamentary act, attended with the formalities prescribed by himself.” In that case the distinction was clearly recognized when the Court said: “ Here there are two modes prescribed, the one to be by will duly executed according to law, which fairly means the general law, regulating the execution of wills, the disability of coverture of the donee being in this respect dispensed with; the other by a testamentary paper in the nature of a will, to be executed in the presence of two witnesses, without anything more.” In Southby v. Stonehouse, 2 Ves. Sr. 610, Lord Chancellor Hardwicke said that a writing in the nature of a will, by a feme covert, in virtue of the power reserved to her, in two deeds of settlement, was not a proper will, although it had the effect of a will to three intents; the words have the same liberal construction, it is ambulatory until the testator’s death whom appointee must survive, and can only take effect from the testator’s death. See also 2 Perry on Trusts, sec. 511

When a donor gives the donee power to dispose of property by will, there is no necessity to prescribe the ceremonies and formalities by which it is to be executed, for the law has already done that, but when the power is to be exercised by an "instrument in the nature of a will,” then he should determine the mode of its execution, and having done so, it must be complied with.

In this case if the grantor had only reserved the power of disposing of this property by her'“ last will and testament,” the formalities by which that could be done were settled by law. If she had then executed her will in this State it was required to be attested and subscribed in her presence by two or more credible witnesses, or else, in the language of the statute, " be utterly void and of none effect.” Or she could, under section 319 of Art. 93 of our Code, execute it out of the State “ according to the forms required by the law of the place where the same was made, or by the law of the place where such person was residing when the same was made.” But in order to dispose of the property by some instrument that was to take effect after her death, though not technically a will, if she saw , proper to do so she reserved the additional power of disposition by “ an instrument in the nature of a will.”

There is, then, a manifest distinction between a " will ” and an "instrument in the nature of a will,” especially as to the manner in which they may be executed, although the latter may operate as a will, and to avoid an attempted execution of a power being declared invalid, by reason of a defective execution of a will, it may be a wise precaution for the donor, who desires to give the donee power of disposition of the property, to take effect at the latter’s death, to supplement the power of disposition by “will” by “an instrument in the nature of a will.” It is perfectly certain that the two instruments are not necessarily the same, and therefore it does not follow that because Miss Pleasants fixed the mode of execution of an “ instrument in /the nature of a will,” her “will” should necessarily be executed in the same way. Hence, we do not think our interpretation of this deed can be aided by the contention of the appellee on that question, or that such contention can be maintained.

So when we come to determine whether the expression “executed in the presence of two witnesses” is applicable to both, we are met with the fact that the punctuation, so far as it can be considered, points to the contrary, and the further fact that it is at least usual for the one instrument to be executed in the manner prescribed by law, and the other as determined by the creator of the power. If it be said that the donor has prescribed the method by which her “ will ” should be executed, if that instrument be adopted, and that if that be followed nothing more is required, then such an instrument would not be a technical will if executed in Maryland, because our statute requires it to be attested and subscribed in the presence of the testator and does not require it to be executed in the presence of witnesses. If it be conceded that a will executed in accordance with the requirements of the present Maryland laws applicable to wills made in this State, would be a good execution of the power, then it must be admitted that there are alternative modes of executing the power provided for in the deed. It is true that both might be done, but if the contention of the appellees be correct, it must follow that Miss Pleasants undertook to say how a “will” should be executed. But when we remember she was reserving to herself certain powers,- and especially when we see from the evidence that she was not twenty-one years of age, it is difficult to convince ourselves that she intended or desired to say she could not dispose of this property by a will executed as prescribed by law, and that there must be superadded to those requirements a provision that she must execute it in the presence of two witnesses. We can very safely assume, we think, that she was satisfied to let the law determine how her will should be executed. Unless there be some intention manifested to the contrary on the face of the instrument, we deem it to be much more in accord with justice and the wishes of the party reserving a power of this kind, to construe it liberally in her favor, as far as it can be done consistently with the authorities and binding decisions on the subject. The policy of our law has undergone marked changes in favor of married women, and the reason for surrounding their acts with “the fettering and circumscribing powers of this kind,” as given by some of the early cases, do not apply with equal force at this day. As was well said by Judge Tuck in Cooke v. Husbands, 11 Md. 505, “It cannot be maintained as a general proposition, universally true, that these settlements are intended to protect the wife’s weakness against her husband’s power and her maintenance against his dissipation * * * for many of them are made where the utmost confidence is reposed in the husband ***** We are not to assume that husbands will be constantly endeavoring to wrest their wives’s property from them and devote it to their own uses.” It is unfortunately true that money and wealth are .too often the moving causes that lead to matrimonial alliances-, but Courts should not assume or be too ready to believe that a deed of this kind, prefaced by the statement that “ whereas a marriage is about to be solemnized between the parties hereto of the first and second parts” (Miss Pleasants and Mr. Olivet), was intended by-them or either of them to indicate any want of confidence in the one by the other.

But in 1 Sugden on Powers, 224, 8th edition (271 of 7th ed.), that learned author states this rule: “But where only-one power is given, and it is authorized to be executed by different instruments, although the ceremonies required to execute it are not stated after each instrument, they will relate to both.” The principal case relied on for that statement is Dormer v. Thurland, 2 P. Wms. 506. There a power was given to A., if he should die before his wife without issue, to be executed “ by his last will, or any writing purporting to be his last will, under his hand and seal, attested by three or more credible witnesses.” A. executed his will according to the Statute of Frauds, but it was not sealed. Lord Chancellor King held that it was a good exercise of the power, but the Judges of the King’s Bench decided that it ought to have been sealed, but filed no opinion. The punctuation differs in that case from the one now before us and the phrase “or any writing purporting to be his last will,” as punctuated is inserted parenthetically. In Earl of Darlington v. Pulteney, Cowper, 266, Lord Mansfield said that the case of Dormer v. Thurland goes a great way, and that “Lord King was of opinion that it was a good execution of the power, because by will, and I own I should incline to that opinion.” The case of Ross v. Ewer, 3 Atk 156, is also relied on by Mr. Sugden. In that case stock belonging to the wife was, by settlement before marriage, vested in trustees who were to transfer one “ moiety unto such person or persons, and to and for such uses, intents and purposes, and in such manner as the said Ann should, in and by her last will and testament, in writing or other writing, under her hand and seal, to be attested by two or more credible witnesses.” Lord Hardwicke held that the words “ under her hand and seal to be attested by two or more credible witnesses,” were referable to the will as well as to the other writing. He admitted that the words might be construed in another sense, but thought they would be then much more strained than by his interpretation of them. His reasoning is not satisfactory and he incorrectly stated, in referring to Dormer v Thurland, that Lord Chancellor King held that the seal to a will in that case could not be dispensed with. The report of the case shows that Lord King held otherwise, although he was afterwards reversed by the Court of King’s Bench. But this case, as well as the general rule stated by Mr. Sugden, undoubtedly goes further than is consistent with other authorities and beyond the contention of the appellees in this case, for the words, “ other writing,” in Ross v. Ewer, and “ different instrument” in Sugden, are broad enough to include acts inter vivos, as well as wills and other testamentary papers. In Doe v. Morgan, 7 Term Rep. 103, where the power was to appoint “ by deed, or will, signed in the presence of three witnesses,” Chief Justice Kenyon thought an appointment by deed would have been good, though not executed in the presence of three witnesses. In Moreton v. Lees, cited by Mr. Sugden, the power was “ by any deed or deeds, writing or writings, to be by him duly signed, sealed and executed, or by his last will and testament in writing, to be by him signed, sealed, published and declared in the presence of three or more credible witnesses,” and it was held that an execution by deed was valid although not attested by three witnesses. Other cases might be cited, but it was conceded by the appellees and held by the Court below, that the rule should be restricted in its application to instruments of the same nature. In 1 Chance on Powers, 311, it is said, “ It is impossible to lay down any general rule ón the point; it is a mere question of construction, and every case of doubt must very much depend on its own circum - stances, as the nature of the property and of the instrument and the usage in like cases, etc. Sir E. Sugden’s rule * * * * * * * (being the one above quoted), cannot be considered acurate.”

It is undoubtedly true that to follow or be governed by an arbitrary rule of that character would in a great measure interfere with the proper construction of such instruments by the Courts while it is their duty to endeavor to ascertain the intent of the donor and the meaning of the language used. “ The intent of the donor of the power is the great principle which governs in such cases, * * and we must ascertain that intent from the language used in the deed of settlement creating the estate and confirming the power.” Nevin v. Gillespie, 56 Md. 327.

The only American case that has been cited in argument on this -question is that of Shearman v. Hicks, 14 Grattan, 96. The power under consideration in that case is not exactly in the same language as the one before us, and without adopting it we prefer to base our decision on the reasons herein given by us.

Although the case of Schley v. McCeney, supra, cannot be said to be exactly in point, yet it shows the tendency to construe such powers liberally, so as to sustain their execution. The power was to a married woman, and although her will was not executed with all the formalities required at that time of those laboring under the disability of coverture, yet the Court construed the power “ by will duly executed according to the mode now prescribed for the execution of wills, or in the mode which may be prescribed at the time of the execution of her will,” to mean duly executed according to the general laws regulating the execution of wills, the disability of the coverture of the donee being dispensed with. Judge Alvey quoted from 4th Kent's Com. 331, that “when there are several modes of executing a power, and no directions are given, the donee may select his mode, and the Courts seldom require any formalities in the execution of the power, beyond those reqidred by the strict letter of the power."

When a party has executed a deed of this character and has reserved a power such as that before us, to be exercised by a “ will” or an “ instrument in the nature of a will,” we think it should be construed to mean a will executed in accordance with law, unless there be other formalities prescribed in unambiguous language. Under the existing laws of this State, as well as those of her residence, Mrs. Olivet’s coverture did not prohibit or interfere with her making a will as she could have done if she had been a feme sole. If any further protection or safeguards be needed or desired, other than what the law prescribes, let them be unequivocally expressed. That is a safer rule than the one adopted by Mr. Sugden. Whatever doubt there may exist as to the interpretation of such powers should, under such circumstances as those in this case, be solved in favor of a valid execution of the power, when possible. In Cooke v. Husbands, supra, it was said, in speaking of a feme covert, when her powers were not such as they are now, “ If the parties making the settlement intend to tie up the property in the wife’s hands, they may use apt and proper limitations. * * Therefore a feme covert may act in reference to her separate estate as a feme sole when the settlement contains no limitations on the subject, on the principle that the jus disponendi accompanies the property, unless restrained in terms, or by the manifest intention of the instrument.”

Without deeming it necessary to discuss the authorities cited on the question, or to decide how far the subsequent acts of Mrs. Olivet in making her will, etc., can be properly considered in our effort to ascertain her intention when she made the deed, it is gratifying to us to find from the record that our construction of this instrument is in accord with what she evidently thought it meant. If she had intended to restrict her right to dispose of the property by will to one executed in the presence of two witnesses, it is not reasonable to suppose she would have forgotten that important provision in so short a time, or that she would have so carefully placed this will and codicil in the custody of the notary for safe keeping. There is not the slightest intimation that her husband exerted his powers or attempted in any way to influence her in the step she took. Making a codicil by which she deprived him of part, although a small part, of her estate, which would have gone to him under her will, indicates that she was untrammelled by any improper influence, and was left to her own volition. Her disposition of her property, with the exception of the few legacies to others, to her husband, to whom she was devotedly attached, was more to be expected than to leave it to her brothers and sisters from whom she had been separated since she was three years of age.

(Decided January 9th, 1896.)

The punctuation, the language employed in the deed, its grammatical construction, the circumstances under which it was executed, the subsequent acts of Mrs. Olivet, and the reasonableness of her conduct all tend to show that her intention was to prescribe two modes of executing the power reserved; the one to be by such a will as would be requisite to dispose of this property and the other by an instrument in the nature of a will to be executed in the presence of two witnesses.

It follows from what we have said that the holographic will, including the codicil of Mrs. Olivet, was a valid execution of the power contained in the deed of trust, and that the decree of the Court below must be reversed.

Decree reversed and cause remanded.

The costs to be paid out of the trust fund.