Sisters of Mercy v. Benzinger

53 A. 448, 95 Md. 684, 1902 Md. LEXIS 204

• Court: Court of Appeals of Maryland
• Decided: November 20, 1902
• Status: Published

Opinion

Page, J.,

delivered the opinion of the Court.

This appeal is from an order overruling exceptions to a sale made by trustees appointed by a decree of the Court to make sale of certain real estate described in the second paragraph of the will of Edward Power, deceased. The bill was filed by one of the devisees named in the paragraph against the others ; the heirs at law of the deceased are not made parties. It appears that the “Roman Catholic Asylum for Widows in the City of Baltimore” and “The Little Sisters of the Poor,” both named as devisees in the paragraph as tenants in common with other devisees therein named, are in fact one and the same concern ; and it is contended by the appellant that by reason of this fact, either the “bequest to. the Roman Catholic Asylum, or the one to The Little Sisters of the Poor” must fail, “in which case one share would by law revert to the heirs of the testator ; and they not having been made parties to the proceedings the trustees cannot convey a good and marketable title to the exceptant.”

The second paragraph of the last will of Edward Power, after granting the real estate therein mentioned to the wife of the testator during her natural life or so long as she shall remain unmarried, further provides that at her death or marriage, whichever shall first happen, the said land and improvements shall pass to the “Sisters of Mercy atMt. Washington, in Baltimore County, Maryland.” “The trustees of the Roman Catholic Asylum for Widows in the City of Baltimore, The House of the Good Shepherd in the City of Baltimore, Saint Vincent de Paul Benevolent Association on Front street in the City of Baltimore, Saint Mary’s Industrial School for Boys in the City of Baltimore, and The Little Sisters of the Poor in the City of Baltimore, as tenants in common, share and share alike.” It appears, from the Agreed Statement of Facts “that the trustees of the Roman Catholic Asylum for Widows m the City of Baltimore was incorporated by the Act of 1854, chapter 199, of the General Assembly of Maryland, and that it was known and called by the name of The Little Sisters of the Poor for years prior to their incorporation as such by the Act of 1876, ch. 42.” It does not appear there was any other association known by the name of The Little Sisters of the Poor. It would seem therefore to be clear that when the testator designated the trustees of the Roman Catholic Asylum, and The Little Sisters of the Poor, he had in mind only one corporation. The only peculiarity of this devise is that the testator has twice named the same corporation when designating who should be the devisees of the property. Had no other devisees been named, the character and extent of the estate would not be altered by the fact that the corporation designated, had been twice referred to by different names. In this case, it is clear what the testator intended. That was, that the property after the death or marriage of Mrs. Power should pass to the several corporations mentioned, “as tenants in common share and share alike.” He has named five corporations, only, as his devisees, and declared in plain terms that after the determination of the particular estate, the property shall pass to them in equal parts. The fact that one of the devisees is twice named, cannot make any difference, from the fact that the intention of the testator to be gathered from the words he has employed, cannot be found to be that each devisee shall take only a one-sixth interest. He desired that each shall take “share and share alike;” that is that each shall take an equal interest, and there being but five, each takes a one-firth share.

(Decided November 20th, 1902.)

It follows from what has been said that the order of the lower Court must be affirmed.

Order affirmed.