Ring v. Zimmerman

50 A. 404, 94 Md. 10, 1901 Md. LEXIS 78

Opinion

McSherry, C. J.,

delivered the opinion of the Court.

In eighteen hundred and ninety Dennis Ring, of Baltimore County, made his will which was admitted to probate in eighteen hundred and ninety-three. It was quite inartificially drawn, but its meaning is reasonably apparent. The testator had both real and personal property. The scheme of his will contemplated the conversion of the real and personal estate into money. By the second item he gave to his wife for her life the interest or income arising from one-half of the proceeds of the sale of his property and upon the death of his wife he gave the proceeds themselves over to his children. As the controversy turns on this clause and on a part of the fourth clause the one will be transcribed and a quotation will be made from the other. The second clause is in these words : “ I give and bequeath to my wife, Eliza Ring, the the interest of one-half what the estate will bring when sold for her life estate, and at her death to be divided equally among my chil dren, share and share alike.” In the fourth clause the testator states that he considers that his son-in-law, David, “has got twenty-one hundred dollars.” He then went on: “ Add what you get for the real and personal property to the twenty-one hundred and divide in seven equal shares, one share to each person. You must first take out your mother’s half of the real estate, the interest of which to to be for her benefit while she lives, and at her death to.be equally divided among you.” No other provision was made for the wife. After the death of the testator and after the probate of his will the widow did not renounce the disposition made for her and did not claim her dower right as she might have done under sec. 292, Art. 93 of the Code. Some doubt having arisen as to the right of the executors to make sale under the will, a bill was filed in nineteen hundred on the equity side of the Circuit Court for Baltimore County, praying for a decree for the sale of the land. In due course, after answers had been filed and after testimony had been taken, the Court determined that the will did not give the executors authority to make sale, and thereupon a decree appointing trustees to make the sale was signed. This decree was executed and a sale was made. Two audits distributing the proceeds have been stated. In account A one-half of the net proceeds was set apart for the use of the widow during her life. In account B three-tenths of one-half of the net proceeds were awarded to the widow “in lieu of her life-estate.” Exceptions were filed by the widow to the allowance made to her in account A, and exceptions were filed by some of the remaindermen to the allowance made to the widow in account B. Account A was ratified and account B was rejected. From the order ratifying account A the widow, Mrs. Ring, has appealed.

From this statement of the facts it is obvious that the primary question before us is this: What estate did Mrs. Ring take under the will of her husband ? It is contended on her behalf that she took a life-estate in one-half of the net proceeds of sale and a life-estate in one-half of the land, and that she is entitled to have in lieu of that life-estate a definite sum calculated by analogy to the Chancery Rule relating to dower which definite sum is ordinarily thrice the allowance to a doweress of the same age. By such an allowance in lieu of a life-estate or a life-interest the life-tenant takes instead of a mere life-estate or life-interest a certain proportion of the proceeds arising from the sale of the property, out of which the life-estate has been carved. The contention made on behalf of the widow is resisted by the persons entitled to the fund in remainder.

It is clear if Mrs. Ring did not take under the will a life-estate or a life-interest in the property of her husband, the Chancery Rule above alluded to cannot be successfully invoked by her. Let us ascertain, then, what interest or estate she did take. In considering such a question the intention of the testator as disclosed by his will must first be consulted. Whenever that intention is clearly apparent and does not contravene some rule of property or some fixed policy of the law it must prevail. Technical words will bend their meaning to conform to the intention. Rules of interpretation are invoked to aid in discovering a testamentary intention but not to defeat it. In the absence of a contrary intention it is doubtless true as a general rule that the gift of the income of a fund or of the -rents and profits of land is a gift of the fund or the land itself, because ordinarily the owner of the increment is the owner of the thing out of which the increment arises and when the increment is given the usual presumption is that it was the intention of the testator that the estate out of which the increment issues should pass. It was said by this Court in the case of Johnson v. Safe Deposit and Trust Co., 79 Md. 23, when speaking of a devise made in the will of the late Mr. Reverdy Johnson to his daughters, “ the devise of the rents and profits to the daughters was sufficient to vest in them an equitable fee in the rest and residue, and also an absolute equitable estate in the proceeds of the sale of that rest and residue as tenants in common, for such was the manifest intention of the testator; and there is neither a limitation over nor an expression of any kind to denote a contrary or a dif ferent purpose.” In support of that there were cited 2 Jar. on Wills; 403 and notes; Watkins v. Weston, 32 Beav. 238; Cook v. Husbands, 11 Md. 492; Casilly v. Meyer, 4 Md. 1; Drusadow v. Wilde, 63 Pa. St. 170. It must be remembered that this doctrine that a gift of the income is a gift of the thing out of which the income issues, is, by its explicit terms, applied to the interpretation of wills, only when it effectuates the testator’s intention. If it be obvious that it was not his intention to give a life or other estate in the fund or property, then the gift of the income or rents will not be construed to be a gift of the subject out of which the income or the rents issue. It is quite clear, we think, that the testator did not intend to do more than to provide an annual income for his wife from the one-half of the net proceeds of his property. He gave the whole of those same net proceeds over after the death of his wife to his children. He thus made a distinct disposition in remainder of the very subject out of which the income was to be payable; and in doing that he manifested a clear and unmistakable intention not to give the property itself or any part of the property to his widow for life. If the contrary view were sustained then, instead of the remainder-men getting, upon the death of the widow, the whole of this one-half of the net proceeds, as the testator declared they should, they would get the one-half less three-tenths of that one-half, and to that extent the limitation over to the children would be defeated. To be more definite, take the precise sums named in the audits as they are respectively the amounts awarded to her for life and claimed by her absolutely. The one-half set apart for the widow for life is four thousand, four hundred and seventeen dollars and eighty cents. That sum is distinctly given over after her death to the children. If, however, she should be allowed out of this, the sum of one thousand, three hundred and twenty-five dollars and thirty-four cents as claimed by her under Auditor’s Account B, then the amount which the remainder-men would receive would be three thousand and ninety-two dollars and forty-six cents, and that is less than the testator intended them to have. The allowance of the claim asserted for the widow would result in practically making a new will for the testator. It would give the widow not what the will gave her but something else; and it would give the remainder-men less than the testator intended them to have. In the face of such results we cannot say that the gift of the income from half of the proceeds of sale was intended to be a gift of the proceeds themselves. It is clear the testator intended his widow to have nothing more than the income from the proceeds of sale. That intention must be carried into effect. The ratification of Auditor’s Account A does that, and the order ratifying that account must be affirmed.

(Decided November 21st, 1901.)

Order affirmed with costs.