Cockey v. Cockey

Stockbiíiixüí, J., delivered the opinion of the Court. This case originated in the filing of a hill for the construction, in part, of the will of the late Joshua, F. Cockey, and incidental to that, for the adjudication by this Court of two additional points resulting directly from the> construction if in accord with the views of the present appellants. The portion of the will, a construction of which is invoked, is in the following language: “1 give, devise and bequeath my homestead * * *, at Cockeysville, containing about sixteen acres of land *376 with, my dwelling house and all buildings * * * , also, all the furniture, portraits, pictures, silverware, ornaments, chinaware and dishes contained in my said dwelling house and my carriages, carriage horses and carriage harness, unto my wife, Anna B. Coekey, for and during the term of her natural life and no longer, and from and after her death to my son, Win-field Scott Schley Coekey, absolutely, should he he then living. Should my said son, Winfield, die before his mother leaving descendant or descendants surviving her, then such descendant or descendants shall take the share to which my said son, Winfield, would have been entitled under this Item I of my will, had he survived his mother, Anna B. Coekey, share and share alike. Should my said son, Winfield, die before his mother without leaving descendant or descendants living at the time of her death, then and in that event, I give, devise and bequeath said share to my son, Bennett F. B. Coekey, absolutely. Should my wife, Anna B. Coekey, die without leaving any child begotten of my body, then living, and without any descendants of any such child (then) and in that event, I give, devise and bequeath said share to my son, John T. Coekey, absolutely.” Instead of accepting the provisions made for her by the ■will, Mr. Coekey’s widow renounced the will and elected to take the portion of his estate which the law gives in cases where there is no will. This immediately raises the question as to the effect of her renunciation upon the other parties named in the paragraph quoted, whether the legacies were ■vested or contingent, and following that, the appellants invoke the judgment of the Court as to whether the remainder was or was not accelerated as the result of the renunciation by the widow, and lastly, they take the position “that they are entitled to have the renounced life interest in two-thirds of the property embraced in Item 1 of the will of Joshua E. Coekey sequestered, or rather, sold and the proceeds se *377 questered, to compensate, so far as may be, those who have sustained loss through the widow’s renunciation and election.” In renouncing the provisions made by the will, Mrs. (Jockey was simply taking advantage of the provision made-for her hy law. As to the effect of her renunciation, that act must he regarded as equivalent to her death, and it has been so held in a. long line of cases in this State, beginning with Carrington v. Rogers, 1 Gill, 301, down to cases decided within the last twelve months. See Derecmon v. Kuykendall, 89 Md. 25; Daris v. Hilliard, 129 Md. 348. and Craig v. Craig, 140 Md. 322. The cases cited, however, go a step further than this and hold that, the renunciation having been made, it is the disposition of the courts to regard legacies for life with remainders: over as. constituting vested rather than contingent devises. This is in strict analogy with the principle that the law favors the early vesting of legacies whenever it can do so without doing violence to the intent of the testator as expressed in his will, or where there is nothing contained in the will indicative of an intention or desire on the part of the testator that, the legacy should be of a contingent nature. Tiffany, Law of Real Property, section 121, pp. 289, 290; Tayloe v. Mosher, 29 Md. 443; Hoover v. Smith, 96 Md. 394, 395; Roberts v. Roberts, 102 Md. 149, 150. The same principle is announced by all the leading text writers upon the subject, such as Reame on Remainders, Rlackstone and Kent. The adjudicated cases are filled with the attempts of various courts to distinguish between language; which will create a vested remainder and that which will cause the court to hold the remainder interest to he a contingent one. They are quite fully reviewed in Lewis v. Payne, 113 Md. 134, 135, and, in general, it may he said, as was said in that case, “The present capacity of taking effect in possession, if the possession were to become vacant, and not the certainty that the possession will become vacant before the estate limiting the: remainder determines, universally distinguishes a vested remainder from one that is contingent.” *378 In the very elaborate opinion filed by Iruoi: Thowas in that case, all of the authorities are reviewed with the result already mentioned, and tested by the conclusion there reached, the will of Mr. Joshua F. Cockey must ■ be held to have created a vested remainder after his wife’s death, or, since her renunciation was equivalent to death, upon the filing of her renunciation. While the remainder was vested, it was of course liable to a defeasance by opening up to let in, if circumstances warranted it, after-born parties having an interest, a condition which is not contended for in the present case. The appellant apparently rests his contention on this point mainly upon the case of Forbes v. Littell, 138 Md. 211. There are two complete answers to this: First, an examination of the will presented to the Court in that case disclosed an entirely different condition from that which obtains in the present case, and second, it was conceded in Forbes v. Littell upon all sides that, the legacy was a contingent one, and this Court was not called upon to pass directly upon that question. The next point urged by the appellant is, that the legacies in remainder after the death of Mrs. Cockey have not been accelerated by reason of her renunciation. With this contention, this Court cannot agree. The renunciation of the widow has in so many cases in this State been held to operate to accelerate legacies in remainder after a life estate that the Court is not at liberty now to reverse these holdings. Quotations might be made from a large number of cases showing the uniform and consistent rules adopted by this Court in such cases following in the line of the English decisions. It will be sufficient, however to direct attention to a few of the cases, such as Small v. Marburg, 77 Md. 11; Randall v. Randall, 85 Md. 430 ; Davis v. Hilliard, 129 Md. 348; and Craig v. Craig, 140 Md. 322. Much reliance has been placed by the appellants on the decision in Hinkley v. The House of Refuge, 40 Md. 461. A careful examination of that case and of the opinion of this Court therein will disclose that there is no real conflict be *379 tween that decision and the conclusion now reached. The rule as stated is subject to one» qualification and one only. That the effect of the renunciation being equivalent to death, the acceleration of the legacies in remainder will be upheld unless “it contravenes some manifest intention of the testator as. expressed by the will.” I n the present case there is no longuage in the will which by any proper construction can be claimed to have this effect, and therefore we must conclude that the usual rule of law in such cases holds good. From the two conclusions already reached it becomes unnecessary to consider the third proposition of the appellants, heretofore stated, with regard to the sequestration of certain of the properties or the proceeds thereof for the purpose of compensation. This question has been fully passed upon in a very carefully considered opinion by Juixíio Boro in the case of Derecmon v. Kuykendall, 89 Md. 25. The loss in the present case to certain of the remaindermen is a loss by operation of law for which the devisee has no remedy. The testator only could have provided an indemnity against the loss thus accruing. See eases already cited, and Darrington v. Rogers, 1 Gill, 403; Clark v. Tennison, 33 Md. 85; and Boyd v. Sachs, 78 Md. 491. This Court is accordingly unanimously of the opinion that the decree below was. correct and the same must be affirmed. Decree affirmed, with costs.