Smithers v. Hooper

Bartol, J., delivered the opinion of this Court: This appeal is taken from an order of the Orphans’ Court of Dorchester county, directing distribution to he made of the estate of Doct. William Jackson, deceased, and ordering [284] that, in. such distribution, there be awarded to Margaret H. T. Hooper one-tenth part of the entire balance of the estate in the hands of the administrator, including the proceeds of the sale of the real estate of the deceased,'as sold by his executor, under the directions contained in his will, and charging the administrator with interest, according to statement “G,” filed in the case. The appellant contends that the Orphans’ Court erred in awarding M. H. T. Hooper one-tenth part of the entire balance of the estate, composed of proceeds of both real and personal estate, instead of awarding her only one-tenth of the personal estate on hand; and in support of this view has cited Walters vs. Walters, 3 H. & J., 201; McChesney vs. Bruce, 1 Md. Rep., 344. In those cases gifts of the residue 'of the testator’s estate were construed to pass only personal property, notwithstanding the generality of the words of the gift; because, from the context, it appeared to be the intention of the testator not to include real estate in the devise. • It was held that “the generality of the words was restricted by antecedent bequests, in such a manner as to confine them to the personal estate.” In the construction of the wills in those cases, the Court was guided by the rule,, that the intention of the testator, as expressed upon the face of the instrument, must be carried out. This, after all, is the cardinal rule of construction ; hence the interpretation of such instruments depends mainly upon the particular language employed, and but little aid can be derived from the examination of adjudged •cases, in which other wills, different in their terms and provisions, have been judicially construed. After a careful examination of the will before us, we are of opinion that the Orphans’ Court have properly construed it. There is nothing in the context to justify us in limiting the gift to Mrs. Hooper, in the eighth clause, to the personalty only. By the tenth clause, the testator directs and empowers his executors to sell all his real estate at public sale, on such [285] terms as they, in their discretion, may think most conducive fro the interest of all those interested therein. If this clause had occurred in the first part of the will, there would he little room for dispute as to the meaning of the other provisions. And there is no reason for giving to it a different effect, because it is found in the latter part of the instrument. The intention of the testator must he gathered from the whole will; from a consideration of all the provisions contained in it, without regard to the order in which those provisions 'occur. The real estate is not devised as such, hut is directed to he sold, and the proceeds thereof is disposed of hy the will as money. The effect of these provisions was to convert the real estate into personal assets. Hurt vs. Fisher, 1 H. & G., 88. Thomas vs. Wood, 1 Md. Ch. Dec., 296. Carr vs. Ireland, 4 Ib., 251. It seems to us, looking at the whole will, the intention of the testator was, that his real estate should he converted into money, and constitute, with his personal estate, a common fund, for the payment of debts and legacies, and after these and the expenses of administration were paid out of this common fund, the net balance thereof is given, the one-fifteenth part thereof to his grand-daughter, the one-tenth to his daughter, Mrs. Hooper, and the residue to be equally divided between his three sons. In the opinion of this Court, the executor was properly charged with interest on the estate in his hand after the lapse of thirteen months from the date of his letters testamentary. The facts of this case show inexcusable laches and delay on the part of the executor, in retaining the fund in his hand without apparent reason, and failing to pass his accounts and make distribution. In such casé he is chargeable with interest. Chase vs. Lockerman, 11 G. & J., 186. Gwynn vs. Dorsey, 4 G. & J., 453. No laches or delay, however, can be charged in this case against the administrator de bonis non, who has diligently and faithfully performed his trust, he should not, therefore, suffer any loss by reason of the default of the executor. [286] Hé is chargeable only with the funds that have come into his hands, or which he was entitled to receive from the estate of the deceased executor. It appears, from the record, that he is also administrator of the deceased executor, and, as such, has exhibited and passed, in the Orphans’ Court, accounts of administration on behalf of the executor, under the 11th section of the 93rd Article of the Code. In those accounts, interest on the fund ought to have been charged, which would have augmented the balance in the hands of the executor for distribution among the legatees, and which properly comes to his hands as administrator de bonis non, and to he accounted for by him, (Decided July 7th, 1865.) . As administrator of the deceased executor, he will be entitled to receive the share of the fund bequeathed to his in-' testate, and, in the settlement oí that estate, may be allowed and reimbursed the amount he may pay on account of interest charged against the executor. In our opinion, the •costs of this appeal ought to be paid out of the estate of the testator, and we shall pass an order accordingly. Order affirmed a/nd cause remoulded.