Hanson v. Brawner

Eccleston, J., delivered the opinion of the' court. The appellant filed a petition in the orphans court of Charles county, claiming the right to have certain negroes delivered to him by the appellee. The negroes in controversy, are those named in the will of Mary Ann McConchie, as given to Mary E. C. Brawner, who is a minor under eighteen years ■of age. The question for our consideration is, whether the will gives her such an interest in the negroes, as that her guardian is entitled to the possession of them at this time? • The first item of the will gives to Mary E. C. Brawner all the real estate, to her, and her heirs and assigns, forever: but, in the event of her death during minority, and without leaving children, then the same is given to Mary Elizabeth Brawner, and her heirs and assigns. The second item is in the following words: “1 give and bequeath unto the said Mary Elizabeth Charlotte Brawner, should she attain the age of eighteen years, the following slaves, viz: John Wallace, Joe Wallace, Ferdinand, Joe Digges, Cloe, Letty, Mary, Sarah Ann, Sophy, Emily and Harriett Ann; I give the said lands and slaves to the said Mary Elizabeth Charlotte Brawner, on condition that she shall, when she arrives at lawful age, release unto her father, William Henry Brawnier, or his heirs or assigns, whatever land, money, or other property she may have inherited or be entitled to from her mother, Mary E. Brawner. I also give and bequeath to the said Mary Elizabeth Charlotte Brawner, my hexigon quilt and two white counterpanes.” The third item provides, that in the event of Mary E. C. Brawner’s death under eighteen years of age, the said slaves, except Emily, shall be equally divided between John James Brawner, Ellen Speake Brawner, Alice Orinthia Brawner, Mary Elizabeth Brawner, Catharine Mariamny Brawner, Henry Alexander Brawner, and Thomas McConchie Brawner. The fourth item, in case Mary E. C. Brawner shall die — 99 — under eighteen years of age, gives to Eliza M. Hanson and Emily Speake, each, one hundred dollars, to be received by them from the personal property before bequeathed to Mary E. C. Brawner; and negro Emily is given to Emily Speake. The sixth item gives to Mary Elizabeth Brawner and Thomas McConchie Brawner, a negro woman named Jenny, and her children, naming them; and then provides: “But as I have bequeathed my real estate to Mary Elizabeth Brawner, in the event of the death of Mary Elizabeth Charlotte Brawner during her minority, in that event it is my will, that her share of the slaves contained in the above bequest, shall be relinquished by her and included among the slaves left by-said Mary Elizabeth Charlotte Brawner, and divided equally among those legatees named in the third item in this my will.” The fifth, seventh and eighth items bequeath small legacies, having no connection with this contest. The ninth item is: “I give and bequeath Mary Elizabeth Charlotte Brawner, all the residue of my estate, after my debts and funeral expenses are paid by my executors hereafter named.” The tenth item is: “It is my will, that Lucy H. McConchie have a home in my present dwelling house, and an ample support from the properly hereinbefore bequeathed to Mary Elizabeth Charlotte Brawner, and it is my desire that they shall remain together; hut should anything occur to make it necessary for her to leave the premises, it is my will, in such event, that a sufficient sum of money shall be paid her annually during her life, from the income of the property hereinbefore devised to Mary Elizabeth Charlotte Brawner; and it is my will and desire, that ail the slaves and other property hereinbefore devised to Mary Elizabeth Charlotte Brawner, shall be managed to the best advantage for her during her minority, and the income be applied to the support of her and Lucy H. McConchie.” The appellee and James Brawner, who is now dead, were appointed executors. This proceeding is therefore against — 100 — the appellee as surviving executor. In his answer he admits the possession of most of the negroes mentioned in the second clause of the will, but insists that he is bound to retain them until Mary E. C. Brawner arrives at the age of eighteen years. It has been said, in behalf of the appellant, that this legacy is not contingent but vested, and therefore the guardian had a right to the possession. On the other side it is said to be contingent, and cannot vest until the legatee is eighteen years of age; and for this reason the executor cannot be required to deliver over the slaves until that time j more especially so, as the hire, in the meanwhile, is to be applied to the joint support of the minor and Lucy H. McConchie. But for the decision of this case, it is not important whether the legacy is vested or contingent. A legacy may be vested, and still the legatee may not be entitled to demand it until a future period. In regard to the time of payment, the controlling principle in the construction of wills, that the intention of the testator must govern, is equally applicable as on any other point. Ward on Legacies, in 18 Law Lib., 148, shows, that the testator’s intention on this subject, “will of course be followed as near as possible.” In this connection he refers to a case in which legacies were given to grandchildren, to be paid at twenty-one or marriage, and in a subsequent clause of the will, the testator appointed all the legacies thereby devised to be paid within one year after his death. It was held, that the last clause only related to the other legacies given in the will, so as not to contradict the time specially appointed for payment of those to the grandchildren. In 2 Wms. on Ex’crs, 1003, ch. 4, sec. 4, the 2nd Am. Ed., it is said: “Although legatees are not entitled in any case to receive their legacies before the day of payment arrives, yet they are entitled to go into chancery, and pray that a sufficient sum be set apart to answer the legacy when it shall become due.” In Cowden vs. Perry, 11 Pick., 503, in deciding whether a legacy was rightfully paid by the executors to the legatees, — 101 — before attaining their full age, the court thought it unnecessary to decide whether the legacy was contingent or vested; because, if vested, it was defeasible, upon the death of the legatee under age. They remark, on page 508: “It would perhaps be a little more accurate to say in this case, that the legacy was vested, but determinable upon a condition, that on the happening of those events which rendered it absolute and indefeasible, the legacy was payable.” In 3 Porter’s Alaba. R., 350, Christian vs. Christian, the testator gave to his grandson, an equal dividend of sundry slaves, with nine children, who are named in the will; “to be equally divided, when James A. Christian arrives at the age of twenty-one years.” The enjoyment of the specific property, was held to be postponed, until J. A. Christian, who was one of the legatees, became of age. But the hire was allowed, from the death of the testator. The will made no express provision in regard to hire. In Graybill and Butts vs. Warran, 4 Georgia R., 538, whilst discussing the subject of hire, the court express the opinion, that the property in the negro bequeathed, “vested absolutely” in the legatee. The possession, however, was considered postponed, until the legatee arrived at twenty-one, the period mentioned in the will. Here, as in Christian vs. Christian, the will was silent on the subject of hire, and the court gave it to the legatee. In the case before us, the bequest to M. E. C. Brawner is, “should she attain the age of eighteen years.” This language, clearly manifests an intention to postpone the possession until that time. And such intention is not in any degree changed or altered, but rather confirmed by the clause, which gives the slaves to others, if the legatee should die under age. According to the notes, filed by the counsel for the appellant, he conceives, that the last or tenth clause of the will, gives to the minor, the use of the property during her minority; which constitutes a vested right. That under this clause, she has the right of enjoyment, and therefore, the executor has no authority to retain the property. — 102 — It is true, that in many cases where a legacy, which might not otherwise be vested, may become so by a gift of the interest or profit; but then it does not always follow, that the legatee can claim the principal, immediately. And where the giving of interest creates a vested right in the legacy, it requires a bequest of the whole interest; part will not have that effect. At least, such is the general rule. 2 Wms. on Exc’rs, 775, ed. of 1832. 1 Jarman on Wills, marg. p., 766. Lemonier vs. Godfroid's Adm’rs, 6 H. & J., 474. Here the income is to be applied to the support of the legatee and another. If, therefore, it would be any advantage to the appellant, to show this to be a vested legacy, the gift of income, can avail him nothing, because his ward is only entitled to one-half of it during minority. This is not a bequest of the slaves, with a request or direction to the legatee, to support another person out of the same, so as to create merely a lien thereon, as has been suggested. But after they are given, should the legatee attain a certain age, without a word on the subject of income or hire, a subsequent clause directs the slaves to be managed to the best advantage for the legatee, during minority; and then, in disposing of the income, gives precisely the same interest therein to L. H. McConchie, which it does to M. E. C. Brawner. After a careful examination of the will, we think it was the intention of the testatrix, that the legatee should have the negroes, when she arrived at the age of eighteen, and not before. If so, and the income has been disposed of or appropriated, as stated, it was the duty of the exécutor to retain the slaves, for the purpose of carrying into effect the provisions of the will; no such power or authority having been given to any one else, either expressly or by implication. In Evans vs. Iglehart, 6 G. & J., 171, the testator gave the residue of his personal estate to his wife for life; and after her decease, one-half to be equally divided between the children of two persons, named in the will; the remaining half, to go as his wife might direct by will. The English doctrine, that in such a case it is the duty of the executor to convert — 103 — the whole residuum into money, and invest the amount in some secure fund, that the tenant for life might receive the dividends, until, upon her death, the whole might vest in those entitled in remainder; the court decide not to be the law of Maryland. On the contrary, it is held, that the tenant for life has a right to the possession of the specific articles of property, constituting the residue. But in this there are some exceptions. On pages 196 and 197, the learned judge says: “If the surplus or residue thus bequeathed, consists of money or properly, whose use is the conversion into money, and which it could not for that reason be intended, should be specifically enjoyed nor consumed in the use, but be by the executor converted into money for the benefit of the estate; as for example, a quantity of merchandize, a crop of tobacco, or the like, an investment thereof must be made by the executor, in some safe and productive fund, or it must be put out on adequate securities, and most properly under the authority and direction of the orphans court, or a court of equity, so as to secure the dividends, interest, or income, to the legatee, for life, and the principal after his death, to the legatee in remainder.” Thus, where the principal is payable in future, and the interest or income appropriated to present use, the authority of the executor to control and invest the fund is recognised. And in the case then before the court, there was no such authority or power expressly given to the executors, in the will. This case, therefore, is in opposition to the position contended for by the counsel for the appellant, that the appellee has no right to hold the slaves, because the will gives him no such power expressly; and he can have none by implication. This is not an application to a court of chancery, asking for the appointment of a trustee, and the transfer of the property to him by the executor, on account of any apprehension of loss, arising from neglect of duty on his part, or for any other reason; but the petition prays for a decree from the orphans court, to compel the executor to account, and pay over the property to the petitioner, as guardian of M. E. C. Brawner. Considering him not entitled to the possession of — 104 — the slaves at this time, we must affirm the decree of the orphans court dismissing the petition. In this affirmance, we wish to be understood as deeming it unnecessary to notice any portion of the decree, except that by which the petition is dismissed. So far as this case is concerned, it is not important to inquire, whether the appellee will hold the slaves in the character of executor, or that of a trustee. An account is asked for of all the property which came into the possession of the executor, and all receipts and disbursements; but the answer makes no mention of any personal property, except the negroes, included in the second clause of the will. It denies that the executor had possession of any real estate. The decree takes no notice of any species of property, except the negroes mentioned in the answer. And the argument in this court has been confined exclusively to the same negroes. Our decision, therefore, is to be considered as having reference to them alone. Decree affirmed.