Snively v. Beavans

1 Md. 208

Opinion

Tuck, J.,

delivered the opinion of the court.

Robert W. Watkins died in the year 1845, leaving a widow and two sons. The appellant and Greenhury M. Watkins, obtained letters testamentary on his estate. Ellen, his widow, died in 1846; Thomas, one of the sons, in 1847 ; and Edgar, the other, in 1849; both of them unmarried, without issue, and under the age of twenty-one. The appellant took out administration on the estates of Ellen and Thomas; and James and Thomas Beavans, two of the appellees, were appointed administrators on the estate of Edgar. The administrators of Edgar, and the brothers and sisters of Ellen filed their petition against the appellant, as administrator of Ellen, for an account, and praying that he might be required to charge himself with certain property, as part of her estate; the petition, answer and exhibits, present the questions on which we are called to pass our opinion in reviewing this pro forma order of the orphans court.

The order requires the appellant to charge himself with one-third of the real and personal estate of Robert W. Watkins, exclusive of his claims against the canal company, and Subject to a deduction for rent of the land during the time it was in her possession. The administrator of Ellen Watkins had no concern with the real estate. In this respect, therefore, the order is erroneous; and also in charging him with one-third of the personal estate of R. W. Watkins. His duty was to administer the assetts of Ellen Watkins ; that is to say, all her personal estate at the time 'of her death. According to this order, he might be charged with one-third of the estate of her late husband, although she may have received and disposed of the same in her lifetime. The order should have confined the account to the personal estate of Ellen.

It is the duty of an administrator to make return to the orphans court of all the personal property of the deceased. Mrs. Watkins was entitled, under the will of her husband, to one-third of his claims against the canal company; to a watch; to a legacy of two hundred dollars ; and to another of one thousand dollars, upon the contingency therein mentioned. The petition seeks to charge the administrator with these items. It; is no answer to say (as to the canal bonds,) that they have never been sold by order of the orphans court. The will does not provide that they shall be sold, but that they shall not he sold belovj par, except by the order of the court. The appellant might have applied to the court to have these bonds sold or divided, so as to have obtained the proportion coming to his intestate. It may be that her distributees prefer to have them divided and not sold. The will directs that when sold the proceeds shall be divided between the wife and sons. But they may he sold at any time by direction of the court; and as the death of these parties has, perhaps, caused a greater necessity for a sale, the court would no doubt exercise the discretion reposed in them by the will: or divide the bonds specifically among the parties interested ; and they could then be sold if deemed expedient, as part of the estates of Ellen, Thomas and Edgar.

There is nothing in the record to exempt the appellant from the legacy of $200, and the value of the watch. The latter had been delivered to Mrs. Watkins, though she had not received the former. It appears by the account and distribution of R. W. Watkin’s estate, that it is sufficient for the payment of debts and legacies. The answer states that “the watch was delivered to the guardian of the two sons, not being a proper subject of sale; and that the $200, were left in R. W. Watkin’s estate; it making no difference to the sons whether they received the same under the father or mother.” The watch of a deceased person is made assetts by the act of 1830, chapter 17. The delivery of it to the guardian, discharges the administrator pro tanto, but still he must bring it into the estate. It may make no difference to the parties interested, how they receive the benefit of these legacies, but the law prescribes the channel through which the title must pass; and the distributees may insist on having the estate settled according to its requirements. If necessary, the accounts in R. W. Watkin’s estate can be corrected so as to ascertain the proportions of each person claiming under his will.

The legacy of $1000, presents a question of right, in which Greenbury M. Watkins is concerned; and although he is not a party to these proceedings, we must express our opinion upon the clause of the will in relation to it, to ascertain whether the appellant has any interest in this amount or not. The will gave to Mrs. Watkins all the land he purchased of the canal company, for her life, and at her death to go to the two sons. In the event of the sons’ death, without issue, before their mother, she was to have the power of disposing of all she took under the will: and the will then says, “I will and devise, in the event of the death of my sons Thomas and Edgar, before they are twenty-one years of age, that my brother Greenbury M. Watkins, shall have their whole estate, by paying to my wife Ellen, one thousand dollars.” It is well settled, that an executory interest of this kind is transmissible, and will go to the representative of the legatee, if he dies before the contingency happens. 2 Fearne on Rem., 529. It is a contingent interest which vests in right, though not in possession. Barnes vs. Allen, 1 Bro. C. C., 181. 1 Roper on Legacies, 401, 402. But the appellant insists that this is of that class of bequests which are considered personal to the legatee, and therefore determine with his life ; and that it merged in the real estate for the benefit of the devisee, Mrs. Watkins having died in the lifetime of the sons. The law is said to favor the vesting of legacies, and hence to defeat a bequest of this kind, it must appear from the nature and circumstances of the case, that the time of payment was made the substance of the gift, and that the testator meant that time as the period when the legacy should vest. 1 Jarman on Wills, 726, 756. Marsh vs. Wheeler, 2 Edwards, 161. Harris vs. Fly, 7 Paige, 421, 6 Gill and John., 512. We do not perceive anything in this will from which such an intention can be imputed to the testator. His object seems to have been to provide, not only for the widow and children, but also for the disposition of the property, on the happening of certain contingencies. In one event he gives to his brother all the property of the two sons, but on the happening of that event, he also enlarges the interest of his wife under the will, by requiring him to pay her one thousand dollars, as the terms on which he may enjoy that part of the estate. In the hands of his sons, the estate left to them was to be free from incumbrance, but if by reason of their death, their part should go to his brother, he makes this further provision for her out of it. If Mrs. Watkins had survived the sons, they dying without issue, she would have taken an absolute interest in all that was left her by the will, and the property of the two sons would have gone to their uncle subject to this charge, the reason for not charging this part of his estate no longer existing. The design of the testator was to make this additional legacy to the wife depend, not on her future condition, but on the situation, at the sons’ death, of that part of the estate devised to them. If Greenbury M. Watkins had died before the sons, his contingent interest in their estate would have passed to his representative, to be enjoyed if the contingency happened. In 1 Roper on Legacies, 402, this very case is put to illustrate the vesting and transmissibility of executory bequests. How is the case of Mrs. Watkins different from his ? Both depend on the same event. If the sons die under twenty-one, he is to get all their estate charged with this legacy, and her right becomes perfect to the $1000, as soon as he succeeds to the property. Indeed both are gifts in presentí, to be enjoyed in futuro, upon the happening of the same contingency, at one and the same time.

It is to be remembered also, that this legacy is part of the husband’s provision to his wife, in lieu of her dower; and that by abiding by the will, she becomes a purchaser for a fair consideration. 1798, ch. 101, 13, 5. In such a case, the claim of her representative should not be defeated in the absence of a plain intent on the part of the testator to give to the bequest, the personal character imputed to it by the appellant’s counsel.

The doctrine of merger relied on by the appellant’s counsel, does not apply to this case. The testator did not make this legacy a charge on real estate alone, though in one event, his brother might take real estate subject to the incumbrance. If Mrs. Watkins had survived her sons, G. M. Watkins would have succeeded to their property, (which does not appear to have been real estate,) subject to the payment of this legacy; and she would have had a fee-simple in the land devised to her for life. In this latter event, she taking the land, and G. M. Watkins the personalty left to the sons, the legacy of $1000 would have been payable in respect to the personal estate he would have received by the death of the sons, and because of his succession to that estate. But if it were payable out of land alone, the case could not be distinguished from that of Spence vs. Robbins, 6 Gill and John. 510. Judge Robbins, by his will, devised his real estate to his youngest son, and therein provides, that if he should die without certain specified issue, at the time of his death the lands should go to his oldest son and his heirs, on his paying to his three sisters, three dollars per acre for the land. The complainant married one of the sisters, who died before the youngest son, who afterwards died without issue, whereby the estate came to the oldest son. The bill was filed by the surviving husband, to recover one-third of the value of the land, at three dollars per acre. The court held that “the daughters, on the death of the testator, acquired such an inchoate right and interest as was transmissible to their representatives, and would not merge in the land, in case of their death, before the contingencyhappened.” There is no real difference between the two cases. The contingency in one, is the death of the sons under the age of twenty-one; and in the other, the death of the first devisee without leaving certain issue. Mrs. Spence and Mrs. Watkins, each, died before the contingency happened on which her legacy depended. The representative of Mrs. Spence was declared to be entitled to her legacyand so we decide in regard to that to Mrs. Watkins. It should be collected and accounted for by the appellant as part of her estate.

The- order is erroneous, however, in the distribution it directs. The rights of Robert W. Watkins’ estate, and of Thomas Watkins’ estate, cannot be affected by this proceeding. The appellant is the administrator of Thomas, and one of the executors of Robert, but he is not proceeded against in these capacities. A party is liable only in the character in which he is sued. Darnall vs. Magruder, 6 Gill, 285. There is error also in allowing the brothers and sisters of Mrs. Watkins to participate in the distribution of the legacy of $1000, as her immediate representatives. The bequest vested in her lifetime, and then became transmissible. Any interest they may have in. this sum, must be asserted in the character of distributees of Edgar Watkins, who survived his mother and brother; and with whose administrators the appellant must account as administrator of Mrs. Watkins, and as adminstrator of Thomas Watkins.

Decree reversed, with costs to the appellant.