vember, 1910, when Mrs. Sterett was adjudged insane. Mr. Johnson was appointed committee and continued to act as such until her death. The jury found that she was "of unsound mind and a lunatic, with lucid intervals, so that she is not capable of the government of herself or the management of her estate, and that she had been in such state of mind for more than one year past."

are in any way in conflict with that con- as such trustee until about the 17th of Noclusion. When we read this will in the light of the circumstances in which the testatrix was placed, we are convinced that her intention was to leave one half of her estate to the McKims and the other half to the Hemsleys, and there is nothing in any of the authorities cited to prevent her intention being carried out. The general rule in the construction of wills is that, "where there is a general and particular intent, apparent upon the face, the general intent, although first expressed, shall control and overrule the particular, if there be a conflict between them." Chase v. Lockerman, 11 Gill & J. 185, 35 Am. Dec. 277, Thompson v. Young, 25 Md. 450, and Taylor v. Watson, 35 Md. 519. In this will, as we have seen, the general intent that the two parts should be equal was not only expressed in the first part of the will, but was repeated after what is claimed to be a particular intent was indicated, thus removing, as it seems to us, any possible doubt of the intention of the testatrix.

[2, 3] 2. The next question to be determined is whether the devise or legacy to Hollins McKim lapsed by reason of chapter 37 of the act of 1910 (section 326 of article 93 of Code of 1912). The original statute to prevent the lapsing of devises, legacies, and bequests had been in force 100 years when the act of 1910 was passed, being chapter 34 of act of 1810. It was amended by chapter 295 of Acts of 1832, which was passed to remove doubts which existed as to whether it extended to devisees or legatees, unless they were specially named. Young v. Robinson, 11 Gill & J. 328. Those two acts were codified in the Code of 1860 in language which was repeated in the Codes of 1888 and 1904 (article 93, § 320), and the act of 1910 adopted the same language, and then added: "Provided, however, that this act shall not apply to the last will, testament or codicil of any person dying after the passage of this act, where the maker of said last will, testament or codicil, after the execution thereof and before the death of such devisee or legatee, shall become insane or otherwise incompetent to cancel, revoke, annul, obliterate or alter said last will, testament or codicil." That act was passed March 31, 1910, and took effect the same day.

The language of the proviso in the act of 1910 is very broad, but it certainly cannot be contended that it means that if a testator becomes insane, or incompetent to act, between the execution of the will and the death of the devisee or legatee, but recovers or has lucid intervals in which she could have canceled, revoked, or altered his will, the devise or legacy must lapse. Such a construction would be within the letter of the proviso, but surely not within its spirit, and would be too unreasonable to be adopted by a court. It is by no means certain that under the testimony in this case the testatrix could not have executed a valid deed or contract during a considerable part of the time between the death of the devisee and her death, and if that had been clearly shown, we are not prepared to say that this proviso would apply, as in our judgment the expression, "shall become insane or otherwise incompetent" must be construed to mean shall become insane or otherwise incompetent, and so continue to be that the testator is unable to change his will. But that question would involve a discussion of a great deal of evidence and a number of questions; and, as we are of the opinion that Judge Harlan reached a proper conclusion as to the construction of the act, although we have carefully considered the evidence, we will base our decision on the ground he relied on.

The will was made in 1897, Mr. McKim died May 17, 1911, and Mrs. Sterett died September 10, 1911. If it be conceded that the testimony shows that the testatrix became incompetent to alter or revoke her will before the death of Mr. McKim, then we think it must likewise be conceded that she became so before the passage of the act of 1910; that is to say, when she received the stroke of apoplexy, which resulted in paralysis. The evidence is stronger as to her lack of Most of the testimony before us relates to competency at that time, and for some time the question of the ability, vel non, of Mrs. afterwards, than it is of a more recent date. Sterett to revoke or change her will. It is As shown by the acts referred to above, it shown that on November 3, 1909, she was had been the policy of this state for 100 paralyzed, and on the 16th of that month J. years to prevent the lapsing of a devise, legacy Hemsley Johnson was, on the petition of two or bequest, merely because the devisee or of her brothers, appointed trustee of a fund legatee had predeceased the testator, and deposited in the Colonial Trust Company to our statute was originally much broader than her credit, with authority to withdraw said most of those passed elsewhere on the subfund under the direction of the court, in ject. A lawyer of this state, when called order to apply the same to her care, main- upon to draw a will, would necessarily have tenance, and support. The validity of that been influenced by this well-known proviorder has not been called into question in sion of law that had been in force nearly

in the future, but it used a term which "in any opportunity to confirm what they had its common and ordinary usage, unless ac- | lawfully done or to alter their wills, if they · companied by qualifying words which show so desired. a contrary intent, always refers to the future" (35 Cyc. 1451), or as said in 25 Am. & Eng. Ency. of Law: "The word 'shall' in its common and ordinary usage, unless affected by qualifying words, refers to the future. * It is true it is said in both of those authorities that it is often used in remedial statutes in a general sense, including both past and future, and should be so considered when a more restricted interpretation is not required, but in this case we think the more restricted interpretation is required in justice to those unfortunate people referred to in the proviso, and in jus

So without prolonging the discussion of this branch of the case we are of opinion that the proviso was not intended to apply to a case where the testator became insane or incompetent before the passage of the act. We have more doubt as to whether the judge of the lower court ought not to have gone further and have held that it was only intended that the proviso should apply to wills made after the passage of the act than we have as to the correctness of his conclusion that it does not apply when the testator becomes insane or otherwise incompetent before the passage of the act, but we will not pass on that question.

him to the testatrix. Glenn v. Belt, 7 Gill & Atl. 402; Vogel v. Turnt, 110 Md. 199, 72

J. 367; Wallace v. Du Bois, 65 Md. 161, 4

Atl. 661.

[6] 4. In our judgment the evidence in the case shows that S. Sterett McKim was a

tice to the Legislature itself, and we are [5] 3. There can be no doubt under our convinced that the common and ordinary decisions that the legacy to Hollins McKim usage of the term should be accepted. passed to those entitled to it free from all The proviso was in terms only made ap-indebtedness there may have beeen due from plicable to the wills of persons dying after the passage of the act. It may be said that it could not have legally applied to wills of persons who died before the passage of the act, because those taking under them then had vested rights which could not be disturbed. That may be true, but the fact is that the act is only applicable to wills of persons dying after its passage, and why should it not be held that the term "shall become" has its common and ordinary meaning, and refers only to cases where the maker of the will, etc., after the execution thereof and before the death of the devisee or legatee became insane after the passage of the act? There are many reasons why it should be one of the most important of which is that some notice of this most radical change in the law could thus be given to testators, so that they could take steps to meet the change. But if this testatrix was before March 31, 1910, the date of the passage of the act, insane or incompetent to change her will, and this proviso applies to her will, then it was simply condemned as no will as to this bequest, although it was made when she was perfectly competent to make it, and presumably with reference to the statute, which had then been in force for 87 years.

partner in fact in the firm of McKim & Co. In answer to the question, "Will you state your connection with the firm of McKim & Co.?" he replied, "My connection was that in certain respects as a partner-as a member of the firm." He was first employed in 1884 by Hollins McKim, who conducted the business of the firm, and in 1886 there was a change in the arrangements. When asked what that change was, he replied, "The change was that I should be known as a member of the firm." That continued until the time of the receivership. He said he was held out to the public as a member of the firm; that his duties were more in attending to the business on the local stock exchange, which he attended to. He and Hollins McKim were both members of the stock exchange, and their seats were paid for by the firm; he was known generally as a member of the firm and was so held out; he and Hollins McKim were the only persons authorized to sign the firm name to checks and drafts. The agreement with Hollins The proviso makes no provision for a case McKim was that he (Sterett McKim) was to where the testator becomes insane or incom-receive a certain guaranteed salary of $2,400 petent after the death of the devisee or lega- a year, and if the profits exceeded $24,000 a tee, and that was doubtless because he was year, he was to receive one-tenth of the net supposed to have some opportunity to change profits. A receiver was appointed on July his will if he desired to do so. Yet if the 1, 1907, on a bill filed by him and a creditor proviso does apply to the will of one who of the firm. In the bill it was alleged: "That became insane or incompetent before the your orator, S. Sterett McKim, while a mempassage of the act, the Legislature of Mary- ber of said firm and contributing his servland deliberately pursued the unusual and ices to the business, has never contributed or unfavored course, and reached back to strike agreed to contribute any capital thereto." down a will which, until it passed the act "That your orator, S. Sterett McKim, deof 1910, was as valid in reference to the sires to have the partnership affairs wound devise in question as to any other devise or up and his liabilities, if any such there are, bequest iz it, and of course without giving determined"-and one of the prayers of the

Kim and S. Sterett McKim, trading as Mc- I will remove the bar of the statute. This was Kim & Co., be dissolved." S. Sterett McKim laid down in the case of Oliver v. Gray, 1 swore to that bill. Hollins McKim admitted Har. & G. 204, and is fortified by other deGill v. Donovan, 96 Md. 523, 54 the matters and facts set forth in it, and a cisions." In Brantley's notes to Oliver v. receiver was appointed the same day. The Atl. 117. order of court directed the receiver to take Gray, which is the leading case in this state charge and possession of the assets of every on the subject, many cases decided prior to Of those since decided nature whatsoever belonging to the firm or that note are cited. to Hollins McKim or to S. Sterett McKim, we will only cite Shipley v. Shilling, 66 Md. and they were ordered to so deliver them 558, 8 Atl. 355; Babylon v. Duttera, 89 Md. to the receiver. Subsequently S. Sterett Mc- 444, 43 Atl. 938; Beeler v. Clarke, 90 Md. Kim did turn over to the receiver certain 221, 44 Atl. 1038, 78 Am. St. Rep. 439. policies of insurance on his life, and the What was said in Shipley v. Shilling, and amount realized was distributed to the cred-approved in Houck v. Houck, 112 Md. 122, itors. Other facts might be referred to, but it is sufficient to say that under those proven, and under the decisions of this court we can have no doubt that he was a partner of Hollins McKim, and as such liable for the firm debts.

76 Atl. 581, will show that this paper signed by Mr. McKim, was sufficiently definite to remove the bar. There can be no doubt that in this case Mrs. Sterett was a creditor of the firm and Mr. McKim knew of the indebtedness to her. We are of opinion that the acknowledgment did remove the bar of the statute.

[9] 6. It was said in Armiger v. Reitz, 91 Md. 342, 46 Atl. 992: "That it is the right and duty of an executor or administrator to retain, from the share of a distributee or the interest of a legatee in the personal estate, the amount due by the latter to the decedent was declared to have been for many years the settled law in Maryland in the case of Gosnell, Trustee, v. Flack, 76 Md. 426 [25 Atl. 411, 18 L. R. A. 158]." See, also, Hoffman v. Armstrong, 90 Md. 123, 44 Atl. 1012, and Hoffman v. Hoffman, 88 Md. 60, 40 Atl. 712.

It does seem to be peculiarly unfortunate that Mr. Sterett McKim should thus be de

[7, 8] 5. It becomes necessary, therefore, for us to determine whether the statute of limitations bars the claim of the executors against him. As the firm went into the hands of the receiver July 1, 1907, and this bill was not filed until January 5, 1912, the claim of Mrs. Sterett, who was a depositor with the firm to the amount of $12,587.76, is barred unless it has been acknowledged by Mr. McKim within three years in such way as to remove the bar. Several payments have been made by the receiver to Mrs. Sterett and those representing her, leaving a balance due, according to the allegations of the bill, of $10,146.94, as of September 10, 1911. The executors claim that they are entitled to apply the bequest of Mrs. Sterett to the payment of that claim as far as necessary to pay it. That will be considered lat-prived of what the testatrix left him, while er, but the real question now under consider what she left Mr. Hollins McKim, who was ation is whether a paper given by Mr. Mc- the active member of the firm of McKim & Kim to the receiver removes the bar of the Co., is not liable for its debts; but under the facts proven, and the laws applicable to statute. It is as follows: "I hereby authorize Charles Morris Howard, receiver in those facts, it is not within the power of the this case, to distribute to the creditors of court to relieve him. His conduct in connecMcKim & Co. any and all sums heretofore tion with this case, as shown by the record, or hereafter paid by me to said receiver, has been most commendable, and his testiand any and all sums heretofore or hereafter mony was frank and fair, and if the parties received by the receiver on my account, and who get the money of this old lady, who especially the amounts collected by said re-made special mention of this namesake of ceiver on my life insurance policies in the her husband, arrange in some way to relieve Etna Life Insurance Company and the Northwestern Life Insurance Company. Witness my hand and seal this 16th day of June, 1911." Before that was given the creditors of McKim & Co. and the amounts due them had been definitely ascertained, several audits had been stated, and distributions made in the case to which Mr. McKim was a party. Amongst the debts proven and allowed was the one due Mrs. Sterett. In this state an express promise to pay is not necessary in order to remove a debt from the bar of the statute, but "The acknowledgment of a subsisting debt, unaccompanied

him from at least part of the claim, they will doubtless to that extent carry out the wishes of their benefactress and not do more than is just.

We have not attempted to cite many of the numerous cases referred to by the respective solicitors, but we have not overlooked them or failed to consider them.

It follows from what we have said that the decree appealed from must be affirmed, but we will direct the costs of the three appeals to be paid out of the estate of the testatrix.

Decree affirmed; the costs in the three appeals to be paid out of the estate of the

(120 Md. 101)

TAYLOR v. MONMONIER.
(Court of Appeals of Maryland. Feb. 27, 1913.)
TRUSTS (§ 243*)-CONSTRUCTION OF TESTA-
MENTARY TRUST-SALE BY TRUSTEE.

A will gave the estate to a son in trust, to pay the income to the joint use of the widow and a daughter or the survivor of them, and after their decease the estate to be divided among designated legatees, and invested the trustee with full power to sell the property. The widow and the son died, and thereafter, on petition of the daughter, defendant, a brother of testator, was appointed trustee, and sold fee-simple and leasehold property of the estate. Held, in view of the evident intent of testator that the trust should continue until the death of both beneficiaries, and the power to sell was not a personal power conferred by reason of some special confidence in the trustee, the power of sale was a discretionary power attached to the office of trustee, and was properly exercised by

defendant.

[Ed. Note. For other cases, see Trusts, Cent. Dig. 350; Dec. Dig. § 243.*]

monier, and the other third to my grandson, John F. Monmonier, when he shall arrive at the age of thirty years." By the third clause of the will it is provided: "I invest the trustee with full power and authority to sell, lease or otherwise dispose of the property, and to purchase and acquire other property wherever it may be deemed proper in his discretion to do so." By the fourth and last clause of the will he provides: "And I hereby appoint my son, Vincent Ignatius Monmonier, to be the executor of this my last will and testament and he shall not be required to give bond or surety except such as may be necessary to cover the state taxes on my personal property."

Catharine A. Monmonier, the wife of the testator, died on the 4th of August, 1899. Vincent Ignatius Monmonier, the trustee and executor named in the will and a son of the

testator, departed this life on the 23d day of June, 1901, after having assumed the du

Appeal from Circuit Court No. 2 of Balti- ties of the trust under the will. On the more City; H. Arthur Stump, Judge.

Exceptions by Morris Taylor, purchaser at a sale by Charles Monmonier, trustee under the will of John F. Monmonier, deceased, to the ratification of such sale. Exceptions overruled, sale ratified, and exceptant appeals. Affirmed.

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

M. Albert Levinson, of Baltimore, for appellant. William J. Garrett, of Baltimore, for appellee.

BRISCOE, J. John F. Monmonier, of Baltimore city, died on or about the 8th day of June, 1894, leaving a last will and testament, duly executed to pass real and personal property. The will was duly admitted to probate in the orphans' court of Baltimore city, and a certified copy is filed as Exhibit A in this

case.

29th of June, 1904, upon petition of Isadora H. Monmonier, a daughter of the testator and the surviving life tenant of the estate, under the will, circuit court No. 2 of Baltimore city assumed jurisdiction of the trust, and appointed the appellee, a brother of the testator, as trustee, in the place and stead of the deceased trustee, with power and authority to act in the execution of the trust as the deceased trustee, could or might have acted under the powers conferred by the will. On the 24th day of February, 1912, the substituted trustee under the power of sale conferred by the will and decree sold to the appellant certain fee-simple and leasehold property of the testator for the sum of $6,000, and reported the sale to the court. The reasons for the sale are fully set out in the report, and accompanying it is an affidavit of the trustee that the sale was fairly made, and the affidavits of two real estate agents that the price at which the same was sold was a fair and reasonable one. Subsequently, the appellant, as purchaser of the property filed exceptions and objections to the ratification of the sale, upon the ground that the power to sell the trust estate under the will was a personal discretion in the original trustee, whenever he may deem proper, and this power to sell expired with him and did not vest in and cannot be exercised by the substituted trustee, who made the sale. The court below overruled the excep tions and ratified the sale, and from this order an appeal has been taken.

By the first clause of the will, it is provided: "I will and bequeath my whole estate, real, personal and mixed wherever found, also all my rights and claims to my son, Vincent Ignatius Monmonier, in trust, to collect rents, income and profits and apply the same to the joint use of my wife, Catharine A. Monmonier and my daughter, Isadora Helena Monmonier, during their life times. In case my wife shall survive my daughter the trustee shall pay to her all the income, rents and profits of my estate. If my daughter shall survive my wife the trus- In view of the recent cases in this court tee shall pay to her all the income, rents upon the construction of wills containing and profits of my estate." In the second somewhat similar powers of sale conferred clause, he provides: "After the decease of upon trustees, we think this case is free from my wife and daughter, I will and direct that difficulty. In all of the cases, it is held that all my estate shall be divided into three the question is largely one of intention, to equal parts, one third of which I give and be ascertained from a fair construction of devise to my son, John U. K. Monmonier. the whole will and the nature and objects of One third to my son, Vincent Ignatius Mon- the trust thereby created. The clause of the

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