Hawman v. Thomas

Bartol, C. J., delivered the opinion of the Court. The bill of complaint in this case was filed by the appellants, claiming to be next of kin and distributees of Peter Thomas of Gf. deceased, for the purpose of enjoining the executor David Thomas from distributing the estate of the testator Peter Thomas of Gf. among certain supposed legatees, under the second clause of the will, which is alleged to be void for uncertainty, and wholly inoperative. Answers were filed alleging that the second clause of the will is valid and sufficient to give to the persons therein named, the whole residue of the property of the testator, not disposed of by the other clauses of the — 41 — will; setting out particularly of what the said residue consists, the same being personal property only, and alleging further the facts and circumstances outside of the will, tending to show that such was the intention of the testator, and the verbal declarations to that effect made by the testator immediately upon and at the time of executing the will. The complainants demurred to the answers ; and thereupon the following agreement was filed, signed by the solicitors of the parties: “It is hereby agreed * * * * that the Court in deciding upon the demurrer, shall also decide whether the will upon its face is inoperative to pass all the estate of Peter Thomas of G.; and if so inoperative, whether it can be cured or interpreted by extrinsic evidence, and if so, by what evidence; and if the Court should decide that the defect, if any, can be cured, or the will interpreted by extrinsic evidence, it shall remand the cause to enable said testimony to be taken ; and if the Court shall deem said will to be on its face incurably defective, or absolutely invalid, as it now stands, to pass all said estate, it shall pass a decree in the cause, which shall be in the nature of a final decree accordingly. All errors in pleading, in bill, answers and demurrer, &c., are hereby waived.” The complainants are the surviving sister of the testator, and the children and grandchildren of his deceased brother and sisters. The testator left no widow, children or descendants, the legatees mentioned in the second clause of the will being the children of his wife, by a former marriage, and the children of her deceased daughter Mary Dutrow. This clause is in the following words : “Second. — I give and bequeath unto Geo. W. Cromwell, Rachel C. Suman, and the children of Mary Dutrow (dec’d) late (her share to be equally divided) wife — Joseph L. Dutrow, and Mrs. Margaret E. Dutrow, now of Baltimore, all children of my beloved wife (dec’d,) the — 42 — three first named, viz., Mr. Geo. W. Cromwell, Mrs. Rachel C. Suman, and the children of Mr.- Mary Dutrow, (dec’d) they to have their mother’s share equally divided. The three shares to be equal, and Mrs. Margaret E. Dutrow, wife of George W. Dutrow, to have half as much as either of the three first (named children of my beloved wife dec’d) including all money due me by note or otherwise, by either of the above named parties or their husbands, which — to be deducted from their respective shares. Mrs. Margaret E. Dutrow’s legacy to be held in trust for the use of the aforesaid Margaret E. Dutrow, by the trustee hereinafter named for that purpose, the said Margaret E. Dutrow to receive annually from said trustee the interest thereon at six per cent, per an-um during her. natural life, after her death this legacy to pass to her children, equally distributed.” Although this clause is awkwardly and inartificially expressed, we should have little difficulty in ascertaining its meaning, so far as respects the persons who were intended to take as legatees, and the respective proportions in which the testator intended them to take. The legatees named are George W. Qromwell, Rachel O. Suman, the children of Mary Dutrow deceased, and Margaret E. Dutrow wife of George W. Dutrow; the last named to take half as much as the others; that is to say, if the subject of disposition had been mentioned or designated in tbe will, or could be certainly ascertained by construction ; the legatees would take in the following proportions, viz., Geo. W. Cromwell and Rachel C. Suman each two-sevenths, the children of Mary Dutrow deceased two-sevenths equally divided between them, and Margaret E. Dutrow one-seventh, subject to the trust as to her share, declared in the will. But the difficulty in giving- effect to the clause arises from the want of some description or designation of the subject of the bequest, the omission to state what property the testator intended to give by this clause of his will. — 43 — It is contended on behalf of the appellees, that the testator intended by this clause, to give the whole residue of his estate, not disposed of by the other parts of his will, and they propose to offer parol evidence, and other proof outside of the will for the purpose of showing that such was the intention of the testator. It is very clear that such evidence is wholly inadmissible. The law requires the will shall be in writing, which must express the testamentary purpose and wish of the testator ; this need not be done in a forma] or technical way, but it is necessary that the intention of the testator shall be gathered from the face of the writing, it cannot be supplied by extrinsic proof. The only object and purpose for which such proof can be properly admitted, is “ not to show what the testator meant, as distinguished from what his words express, but simply what is the meaning of his words.” Walston’s Lessee vs. White, 5 Md., 297. As was said by C. J., Shaw, (in Tucker vs. Seaman’s Aid Society, 7 Metcalf, 205,) “the general rule certainly is, the intention of the testator is to govern, in the construction, but it is the intention expressed in the will.” “Extrinsic evidence is admissible only when the will is plain and clear upon its face, and becomes doubtful when applied to the subject-matter.” “It would not be admissible to show that the testator intended to devise property which had been omitted by mistake.” Ibid., 206, 207. So in Allen’s Ex’rs vs. Allen, 18 Howard, 393, the Supreme Court say: “That the Court may put itself in the place of the testator, by looking into the state of his property and the circumstances by which he was surrounded at the time of making his will, is true, but this is done only to explain ambiguities arising out of extrinsic circumstances, and not to show a different intention from that the will discloses.” — 44 — On this subject the decisions are uniform, a great many might be cited, but the rule is so well settled that this is unnecessary. We refer only to Hiscocks vs. Hiscocks, 5 Mees. & W., 383; Miller vs. Travers, 8 Bing., 244, and to Fouke vs. Kemp’s Lessee, 5 H. & J., 4 ; Cœsar vs. Chew, 7 G. & J., 127, 128, 129 ; Walston’s Lessee vs. White, 5 Md., 297 ; Warner vs. Miltenberger’s Lessee, 21 Md., 264. We proceed to the examination of the will, for the purpose of ascertaining the intent and meaning of the second clause, which is silent so far as respects the property it was intended to embrace, and therefore if taken by itself it must fail for uncertainty, there being a total want of any description or designation of the property upon which it could operate. But to discover the intention of the testator the whole will must be examined. In Beall vs. Holmes, 6 H. & J., 224, it is said that “the true and safe rule of construction is, that the whole of the will shall be taken together, to find out what was the object and intention of the testator at the time of making it, which where it clearly appears, no matter how irregularly expressed, ought to prevail, if when applied to the subject-matter of the devise, there are found apt or sufficient words in law to effectute that intention.” In examining the will before us, we look in vain for any words or expressions which remove the ambiguity, or cure the omission in the second clause, or which throws any light upon its construction. The will consists of five distinct clauses, or paragraphs. By the first, the testator bequeaths to his niece Catharine Thomas sixty-six shares of Frederick County Bank Stock. The second clause is in the words before cited. The third, gives and bequeaths to Joseph S. Dutrow all his undivided interest.in the farm now owned and occupied by him, to have and to hold forever, also a bed with covering for the same, a secretary and wardrobe. — 45 — The fourth, directs certain clothing and bed clothing tobe divided by three competent ladies to be appointed for that purpose by his executors hereinafter named. This clause omits to state among whom the division is to be made. The fifth, appoints executors and trustees to take charge of Mrs. Margaret E. Dutrow’s legacy and revokes all former wills. There is nothing on the face of the will to indicate what the testator intended to give by the second clause. We are asked to insert the words “all the balance of my personal estate.” But by no fair construction of the will are we able to discover'that such was the intent of the testator, or to determine with reasonable certainty what words were omitted. “Conjecture cannot be permitted to usurp the place of judicial conclusion, or supply what the testator has failed sufficiently to indicate.” Wootton vs. Redd’s Ex’r, 12 Grattan, 206. Words can never be supplied, except “where it is certain beyond reasonable doubt, what particular words were omitted.” This is the rule as laid dowm bj Redfield, ch. 9, sec. 7, and this certainty must be reached by a construction of the terms of the will, which in this case we cannot do. We think it may be inferred from the terms of the will, that the second clause was intended to refer to personal property. This is sufficiently indicated by the language employed in the second clause, and by the terms of the fifth clause in which the share intended to be given to Mrs. Margaret E. Dutrow is called a legacy. But how much, or what part of the personal estate was intended to be embraced, is not stated, nor is there anything on the face of the will from which we are able to ascertain ; and the result is that the bequest cannnot take effect. It is settled that where the name of a legatee, or the subject of the legacy has been left Manic, or entirely omitted — 46 — from the will, the legacy fails for uncertainty. Harris vs. Pue, 39 Md., 548. (Decided 29th February, 1876.) It is also settled that such blanks or omissions, though they may have occurred by accident, or mistake of the draftsman cannot be supplied by parol proof of intention. To admit such proof says C. J., Tindal, 8 Bing., 249, would be “not merely calling in the aid of extrinsic evidence to apply the intention of the testator, as it is to be collected from the will itself, to the existing state of his property; it is calling in extrinsic evidence to introduce into the will an intention not apparent upon the face of the will. It is not simply removing a difficulty, arising from a defective or mistaken description, it is making the will speak upon a subject on which it is altogether silent, and is the same in effect, as the filling up a blank which the testator might have left in his will. It amounts in short, by the admission of parol evidence, to the making of a new devise for the testator, which he is supposed to have omitted.” We are of opinion that the second clause of the will of Peter Thomas of Gr., is defective by reason of the failure, or omission to state therein any property upon which the bequest can operate, and we are further of opinion that extrinsic evidence is not admissible for the purpose of showing what property was intended to be embraced therein.- The decree of the Circuit Court will therefore be reversed, and the cause remanded, to the end that the complainants may have the relief prayed for in the bill. It is proper for us to add that the second clause of the will, is not wholly void ; but that it is valid and operative to give to the parties therein named, the amounts of the debts due by them respectively to the testator. Decree reversed, and cause remanded.