4. WILLS (8 449*)-CONSTRUCTION-RESIDUA- 11. WILLS (§ 572*)-CONSTRUCTION-SECURIRY CLAUSE-PRESUMPTION OF INTENT TO DISPOSE OF ENTIRE ESTATE.

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

[Ed. Note.-For other cases, see Wills, Cent. Lyon. William S. Thomas, of Baltimore, for Dig. 1245; Dec. Dig. § 572.*]

[Ed. Note. For other cases, see Wills, Cent. and Trust Co. of Baltimore, of my money Dig. §§ 1662-1664; Dec. Dig. § 694.*]

Where one-fourth of the income of certainties property was left to the testator's married sister, after her death to her "heirs," but "if she should die without issue" to her surviving sisters, the income will go to her during life, after her death to her issue, but if she leave no issue to her surviving sisters, and if all be dead to the next of kin of the testator.

[Ed. Note.-For other cases. see Wills. Cent. Dig. 88 1171–1176, 1310-1318; Dec.Dig. § 545.*, Appeals from Circuit Court No. 2 of Baltimore City; H. Arthur Stump, Judge.

Bill by the Safe Deposit & Trust Company against James Crawford Lyon and others for the construction of the will of James Crawford Lyon. From the decree, William A. Lyon and Grace Lyon and others appealed. Affirmed in part, and as to part reversed and remanded, with directions.

Argued before BOYD, C. J., and BRISCOE, BURKE, THOMAS, PATTISON, URNER, STOCKBRIDGE, and CONSTABLE, JJ.

one thousand dollars, which is to be paid to him in cash in the settlement of my interest in the firm of Lyon Bros. & Co.

"(5) My sisters are free to devise their interest in the income of the property disposed of under this will as they see fit."

Mrs. Elizabeth Lyon, the mother of the testator, predeceased him. Mrs. May has one child living, Ernest Crawford May, who is of age. Although not so appearing in the will, we have for convenience of reference numbered the paragraphs (1) to (5), inclusive. The will was executed in September, 1902, and the testator died on the 30th of January, 1912, without having married, and leaving his brother and four sisters as his next of kin and heirs. An inventory of stocks and bonds, cash in the house, and in bank, and several trust companies, amounting to $167,366.94, was filed in the orphans' court of Baltimore city, and a list of debts due the deceased, amounting to $196,909.70, was filed with the bill. The latter included $69,359.70 capital in the firm of Lyon Bros. & Co., per

ties of the executor, etc.), and that upon her death, if she dies without leaving a child or descendant, the remainder in such share will upon her death vest absolutely in such of her three sisters as may then be living, or if all die before her then to those entitled by reason of partial intestacy, but if she leaves surviving her a child or descendant the said share will vest in such child or descendant― the said Virginia not having power to will her share. Directions are given the executor, and some terms of the decree we have not set out, as they are not particularly involved in this controversy. The will was written in the handwriting of the testator, excepting the formal beginning and ending which were printed—a blank form having been used. It is dated the 16th day of September, 1902.

At the time of his death the testator had on deposit in the Union Trust Company of Maryland $44,085.81, in the First National Bank $4,143.91, in the Continental Trust Company $14,621.11, and in the Baltimore 91. There were also checks payable to the Trust Company $11,252.08, making $74,102.order of the deceased and not cashed by him amounting to $10,232.10, and coupons due in his lifetime and not cashed by him amounting to $755, besides $10.91 found on his person.

statement of December 31, 1911. There was also an inventory of the real estate appraised at $6,000, filed with the orphans' court. The money deposited with the Maryland Trust Company at his death was $1,003.12, the securities in the vault of Lyon Bros. & Co., ex[1] 1. We will first determine what propclusive of checks hereinafter referred to, states: "After the payment of all my just erty the will disposes of. Paragraph (1) amounted to $14,247, those in three boxes in debts and funeral expenses I give, devise and the vault of the Maryland Trust Company bequeath my estate as follows." It is argu$85,054, his interest in the firm $69,359.70, the ed on behalf of the Misses Lyon that that land $6,000 and insurance policies $20,000, indicates an intention of the testator to disbeing a total of $195,663.82. The assets not included in the above classifications amount- without any qualification in other parts of the That of itself, pose of all of his estate. ed to $185,599.92. Those are the figures given will, might be conceded to be indicative of such in the record, and, although there may be intention; but it is qualified by subsequent some errors, for our purposes they are suf- provisions in the will which go on to say: ficiently accurate. The record shows that the "To my brother William A. Lyon $1,000.00. insurance policies in the Mutual Life and To my sisters * three-fourths of the Maryland Life Companies were paid to de-income share and share alike and to my ceased in his lifetime, and the amount men- mother Ellizabeth Lyon one-fourth of the tioned above was realized from his policies income for life and at her death to my sisin the Provident Life & Trust Company. ter, Virginia May," etc. Then, after making some provisions for the fourth of the income after Mrs. May's death, the testator went on to say: "The income is to be derived from the investment by my executor" of the money, securities, etc., set out in paragraph (2). After stating in paragraph (3) the value of his "securities in the boxes referred to," his interest in the firm July 1, 1902, which was the last six months period prior to the making of his will, and of the land at Herring Run, and saying in paragraph (4) that he did not leave his brother more than $1,000, which was to be paid to him in the settlement of his interest in the firm, he added paragraph (5): "My sisters are free to devise their interests in the income of the property disposed of under this will as they see fit."

The above figures, when taken in connection with paragraph (2), will at once suggest the foundation for the controversy. The court below decreed that by the true construction of the will William A. Lyon was entitled to a legacy of $1,000 and the three unmarried sisters were each entitled to a life estate (subject to the duties of the executor as to the holding and investing as therein stated) in one-fourth of the entire estate, after payment of debts, expenses, and the legacy, with power to each to devise and bequeath by will the interest in remainder after her life estate in the share she takes for life, and in the event of any of them dying without leaving a valid will the testator died intestate as to the remainder in any such share, and it will pass to all of the sisters Whatever meaning must be given to the exand the brother; that as to the remaining pression "the income" in determining whethfourth (the mother being dead) Virginia Mayer the sisters took an absolute estate or

*

ment of it, as we will later do, the property |ough and able manner, but concluded that out of which the revenue is to be derived, or that introductory clause which was, "As which the sisters are to take absolutely, is touching such worldly estate wherewith it definitely and specifically mentioned in para-hath pleased God to bless me in this life, 1 graph (2). If in paragraph (1) the testator give, devise and dispose of the same in manhad said: "To my sisters three- ner and form following," did not authorize fourths of the income, • and to my the court to hold that the estate there under mother one-fourth of the income for life consideration was in fee, and held the devisee derived from the investment by my took a life interest only. executor of my money deposited with the Maryland Trust Company," etc., etc.-using the precise language of the balance of paragraph (2)-could it be doubted that he had limited the devise and bequest to them to the money, securities, and property therein mentioned? And yet is not that what he in effect did? By paragraph (1) he left "the income" as therein stated, and by paragraph (2) he directed from what property "the income" was to be derived. He was undoubtedly speaking of the same "income" in both paragraphs. Suppose immediately following the bequest to his brother the will had read: "To my sisters Elizabeth, Mary A. and Grace Lyon three-fourths, share and share alike, and to my mother onefourth for life, and at her death to my sister Virginia May, and after her death to her heirs * * * of my money deposited with the Maryland Trust Company, as shown by my account there"-and then continued just as paragraph (2) reads, could it be said that he left anything not included in the description thus specifically given? We cannot see how it could be seriously so contended, and yet the description of the property is just as specific-just as inclusive and exclusive-in the will as he wrote it as it would have been in the case suggested.

In Bourke v. Boone, 94 Md. 472, 51 Atl. 396, we had occasion to pass on several questions which have been raised in this case. In reference to the introductory clause in that will, which was, "What property it hath pleased God to bless me with in this life, I give and bequeath in manner and form following to wit," Judge Page said: "But it is well settled upon authority, and in reason, that it is only when the intention of the testator does not clearly appear from the words used in a clause of the will to be construed that resort may be had to the introductory clause. Chamberlain v. Owings, 30 Md. 447. And even if these words would indicate an intention not to die intestate, yet they would be ineffective to pass the estate and thereby disinherit the heir, unless the will plainly, or by necessary implication, directed to whom the estate should go." In that case the clause of the will in controversy was: "I give and bequeath to my brother, John Linstid, all of the land belonging to me; being my part which I obtained from my father, and adjoining the lands of Thomas Robinson's heirs, and James Stalling's heirs, to have and to hold so long as he may live, and at his death, then the said land I give and bequeath to my niece, Alice V. Boone, and her heirs forever." The will of the testatrix was made in 1875, and the same day her brother, John Linstid, made a will by which he left her all the land on which he lived and some personal property. He died in 1880, and the testatrix died in 1900; having in addition to the property she had at the time of the execution of her will the real estate left her by her brother. She left as her heirs at law and next of kin four nephews and one niece-the latter being the Alice V. Boone, mentioned in her will. The question was whether she died intestate as to the tract of land which she took under the will of her brother, or whether it passed to Alice V. Boone.

[2] The Misses Lyon rely on the beginning of paragraph (1) as sufficient to include all of the testator's estate; but the difficulty is that it is limited by the subsequent provisions. In Chamberlain v. Owings, 30 Md. 447, cited in their brief, the court said: "When the intention of the testator does not clearly appear from the words used in a clause of a will which is to be construed, then a resort may be had to the introductory clause, if there be one, to explain their meaning, and, if by it is manifested an intention upon the part of the testator to dispose of the whole of his estate, the words in the clause to be construed, which otherwise would be of doubtful meaning, and consequently not The court, after quoting from Rizer v. Persufficient to pass the fee, shall be taken in ry, 58 Md. 112, as to the effect of the statthat sense which accords with the intention ute making a will, speak as of the time of the expressed in the introductory clause, and will death of the testator, and, stating that it said pass the inheritance, and give effect to all the effect of the decision in Rea v. Twilley, parts of the will." That is undoubtedly cor- 35 Md. 409, "is to reassert the presumption rect, although the rule has perhaps most fre- in favor of the heir, and to restate the docquently been applied to such cases as Cham- trine that the intention is the main object berlain v. Owings, where the question was of search in the construction of wills," went whether the devisee took a life estate or fee on to say: "We take it to be clear (notwithin the property devised. In Beall v. Holmes, standing anything in the statute) that what 6 Har. & J. 205, the case principally relied on we must ascertain in this case, as in all othin Chamberlain v. Owings, Chief Judge Bucha-ers from the construction of wills, is to learn

Md.)

1093

to be collected from her own words, and, if | shall go, unless he, by his will, plainly directs we cannot find she has given the estate to that it shall be disposed of differently.' See some one else, it must go to her heirs. Zim- Coffman v. Coffman [85 Va. 459, 8 S. E. 672], merman v. Hafer, 81 Md. 357, 32 Atl. 316." 2 L. R. A. 848, and notes [17 Am. St. Rep. 69]. And the court concluded by saying: "Hence An explicit and unequivocal declaration, therewe think it clear from the terms of the will, fore, that the heir shall not inherit, will be when read in the light of the circumstances wholly ineffectual to defeat his right, unless under which it was executed, or without such the estate be given by the will to some one aid, that the testatrix intended to dispose of else." only such property as she specifically des scribed, and that therefore the real estate devised to her by John Linstid does not pass under the will, and that she died intestate thereof." There was in that case an introductory clause certainly quite as strong as the one in this will, and the devise was "all the land belonging to me," which under the statute would ordinarily have included that be longing to her at the time of her death, yet inasmuch as she followed that up by saying, "being my part which I obtained from my father," etc., the court said: "We cannot regard this as a general devise or equivalent thereto, for she proceeds to declare specifically and particularly what it is she intends shall pass."

In this case the testator only said, "to my sisters #* three-fourths of the income," and then in the next paragraph, as soon as he provided for the other fourth of the income, proceeded to say specifically from what the income was to be derived. There was more reason for giving the introductory clause in Bourke v. Boone the effect contended for than there is in this case.

[3] The only provision in the will that can be said to place the Misses Lyon in a stronger position than Miss Boone is the fact that the testator said he did not leave his brother more than $1,000; but that may be answered in several ways. In the first place, the next paragraph (5) is: "My sisters are free to devise their interest in the income of the property disposed of under this will as they see fit." That is very suggestive of a belief on the part of the testator that at his death he might have property which would not be disposed of under this will. Then, in Zimmerman v. Hafer, 81 Md. 347, 32 Atl. 316, the testator, after giving as reasons for leaving all of his property to the devisee that he had married his niece, that he had been living with them for many years, and had a high regard and affection for them, added: "And desire that they shall enjoy the same to the exclusion of my other relatives." Judge McSherry said, on page 357 of 81 Md., at page 318 of 32 Atl.: "Nor is the appellant's contention strengthened by the expressed desire that the testator's other relatives should be excluded from participating in the distribution of his estate. And this is so, because, as said by Lord Mansfield, in Denn v. Gaskin, Cowp. 657, though the intention to disinherit the heir be ever so apparent, he must, of course, inherit, unless the estate is given to somebody else, and the reason is that the law provides how a man's estate at his death

so very applicable. The testatrix gave to her The case of Cole v. Ensor, 3 Md. 446, is algrandson "my negro girl Beck, together with the rest and residue of my estate, consisting of household furniture, cattle, horses, farming utensils, all and singular, of whatever kind, named or intended to be named," etc. At the time of her death she owned 10 negro slaves, which were not particularly mentioned or referred to in the will. The court said, if the clause "had terminated with the expression 'the rest and residue of my estate,' it might doubtless have passed all the property owned by the testatrix at the time of her death, and which had not been specifically devised. But these words are qualified and ing, namely, 'consisting of.' restricted by the words immediately succeedthese last-named words is to indicate that the testatrix intended to enumerate what she The effect of considered to be the rest and residue of her estate, and what she designed should pass under that general designation."

988, 40 L. R. A. (N. S.) 553, the testatrix left In Gardner v. McNeal, 117 Md. 27, 82 Atl. stock and all money remaining in bank exto her brother, J. V. McNeal, her railroad cepting $300. When she made her will she had 12 shares of common stock and 60 shares of preferred stock of the Baltimore & Ohio Railroad Company.

brother as her agent sold the preferred stock, Before her death her and invested the proceeds of sale, together with some money in bank, in bonds of various corporations.

of the common stock was valid and that of
It was held that the legacy
the preferred stock had been adeemed, and
that the reinvestments which had been made
could not be substituted as a specific legacy
in favor of Joshua V. McNeal. Judge Stock-
bridge, in speaking for the court, said: "The
will of June 6, 1905, did not contain any re-
siduary clause, and, under the construction
which we have felt compelled to put upon it,
it necessarily follows that as to a consider-
able portion of her estate Mrs. Ellen M.
Gardner died intestate. That she had no in-
tent to die thus intestate is undoubtedly true.
result, and the balance of her estate after
* ** * But that fact cannot alter the legal
the payment of specific and demonstrative
legacies is distributable to her brother, Josh-
ua V. McNeal, and her half-brother, James
H. McNeal."

tion that, when a party makes a will con-
[4, 5] There is undoubtedly a presump-
taining a residuary clause or other language
of similar import, he did not intend to die