Stannard v. Barnum

Bartol, C. J., delivered the opinion of the Court. The bill in this case was filed by S. H. Tagart, executor, to obtain a judicial construction of the last will of Mrs. Ann K. Barnum, and to have distribution of her estate made under the direction of the Court. The will is as follows; omitting the introductory clause: Item. I give to each of my grand-children David Barnum and Kirby Barnum, children of my deceased son Augustus Barnum, the sum of one hundred dollars. Item. I give to my son Richard Barnum, the sum of two hundred dollars. Item. I give to my daughter Eliza Stannard, the sum of two hundred dollars. Item. It is my wish that after the payment of my debts and funeral charges, should there be a balance left in the hands of my executor, to he hereinafter named, that said balance of money shall be equally divided between my two children Eliza Stannard and Richard Barnum. She then appoints-S. H. Tagart, executor. The will was executed in October 1866, and admitted to probate November 28th 1866; the testatrix died Novem — 449 — ber 14th. The contest in this case is as to what property and estate of the testatrix passes under the last clause of her will. It appears from the record that the estate which has come to the hands of the executor, arose and was derived in this way: 1st. The testatrix owned an annuity of $2200, per annum for life, payable to her in money. At the time of her death there was due to her a proportion of this annuity amounting to $1002.22. 2nd. A controversy was then pending with regard to the construction of the will of David Barnum, her deceased husband, made in 1843 and admitted to probate in 1844. This controversy was finally determined by the decision of the Court of Appeals, made after her death, in December, 1866, (Barnum vs. Barnum, 26 Md., 119,) whereby it was decided that the first clause of the will was void and inoperative, and the result of the construction of the will then established, was that there fell into the estate of the'widow, the testatrix, a valuable share or interest in the hotel property. This property was sold in 1870, and there came into the hands of Mr. Tagart, the executor, from the proceeds of that sale, the sum of $35,180.79, as appears by the first account of his administration passed on the 7th day of May 1877. Of this sum, there remains in his hands after deducting allowances for disbursements, &c., the sum of $26,370.59, all of which are proceeds arising from the sale of the hotel property. The appellant contends that this is embraced in, and passes under the last clause of Mrs. Barnum’s will. While the appellees maintain that the will operates •only to dispose of the sum of $1002.22 belonging to the testatrix in money, at the time of her death, and cannot be construed as embracing her share or interest in the hotel property. — 450 — The testatrix left surviving her five grand-children, the children of her deceased daughter Mrs. McLaughlin, who are not named in the will. When we read this instrument, it seems to be impossible to resist the conviction, that the testatrix had in her mind only the sum of money arising from her annuity, and intended only to dispose of that sum. She gives small pecuniary legacies to her son, and daughter and two of her grand-children, amounting to $600, and then she expresses the wish “that after the payment of her debts and funeral charges, should there be a balance left in the hands of her executor, that said balance of money shall be equally divided between her two children, Eliza Stannard and Richard Barnum,” to whom she had, in the former part of the will given small pecuniary legacies. By the agreement of counsel, the proceedings in the case of Barnum vs. Barnum, before referred to, are allowed to be read in evidence subject to exception, “and it is further admitted that at every stage of said controversy and down to the time of her death, the position of the testatrix, as to the matters embraced therein, was as set forth in her answers therein filed, adopting those of the McLaughlins, and that it does not appear that she ever departed therefrom during her life.” Those answers show that she repudiated and resisted the attempt to impeach the validity of the first clause of her husband’s will, and always protested that she had no interest, share or estate in the hotel property devised by the will, .such as was by the subsequent decision of the case, (made after her death,) ascertained to have devolved upon her under the will. These facts justify the inference that she did not know, when she executed her will or at any time thereafter, that any estate or interest in the hotel property belonged to her, except the annuities for life charged thereon by the first clause of her husband’s will; and the appellees rely — 451 — upon that inference, in aid of the interpretation of her will, arguing that if she did not know that she owned an interest or share in the hotel property, she cannot be supposed to have intended to dispose of it by her will, citing Cooke vs. Oakley, 1 Pre. Williams, 302. There the will under consideration was made by a person at sea, and contained, after certain specific gifts of chattels, the words “ and all things not before bequeathed.” The testator had succeeded to considerable leasehold estates, by the death of his father of which he was ignorant, and the question arose whether these leaseholds passed under the general words, “all things not before bequeathed.” In the argument of counsel it seems, much stress was laid upon the fact of the ignorance of the testator of his father’s death and of his ownership of the leasehold estates. The Master of the Rolls decided that they did not pass under the will; but made no reference to the subject of the testator’s ignorance. We think with Mr. Jarman, that the decision in Cooke vs. Oakley, rests upon the familiar rule of interpretation “ ejusdem generis,” or “noscitur a sociis;” that is to say, because it appeared from other parts of the will, and especially from the context, that the general words “ all other things not before bequeathed,” clearly meant things or property of the same kind as was particularly mentioned, therefore they could not be properly construed to embrace or refer to the leasehold estates belonging to the testator at the time of his death. We do not think the case of Cooke vs. Oakley, can be relied on as authority for any other doctrine. It was cited in Cole vs. Ensor, 3 Md., 453, and in Hamilton vs. Darrington, 36 Md., 446. But in neither of those cases was it relied on as establishing any other doctrine than that before stated. Many cases of the highest authority have held that property will pass under a will, although the testator was ignorant of the fact of his ownership. It would be a dangerous doctrine to establish, and one with — 452 — out precedent, that where the language of the will is plain, and the residuary clause, in terms, disposes of the whole estate, and there are no qualifying words in any part of the will, you may introduce extrinsic evidence to show that the testator did not know that certain property which he owned actually belonged to him, for the purpose of restricting the natural meaning iind operation of the will such evidence would clearly be inadmissible. We return to an examination of the terms of the will, and the only question is whether the words in the last clause operate to pass the interest or estate of the testatrix in.the hotel property. In construing this clause we must look at the whole will, and read it in the light of the circumstances in which the testatrix was placed, and of the nature of her property and estate. It must be observed that the testatrix after giving the few pecuniary legacies, amounting in all to $600, directs that if there should be a balance of money left after the payment of her debts and funeral charges, the same should be equally divided between her two children. The administration account shows that she owed no debts except the bills of the physician and nurse, amounting to $100, and a debt of $100 due G. D. Clarke. The language of the will, expressing doubts whether there would be any balance left in the hands of the executor, indicates that she had in her mind and intended to dispose of only the amount of her annuity then due to her in money, and did not intend her will to operate upon any interest or estate she might have in the hotel property. And this conclusion becomes irresistible when we see that the last clause is not a gift of the general residue of her property or estate; but is in its terms only a gift of a balance of money remaining in the hands of the executor. In point of fact, as we have before stated, the testatrix, at the time of making her will, was entitled under the resid — 453 — nary clause of the will of her late husband, as the same was subsequently construed, to a valuable share or interest in the buildings and grounds constituting “Barnum’s Hotel” property, and the question is presented whether under a gift of “a balance of money”, the testatrix’s estate in the hotel property will pass. The question as to the construction and effect of a bequest of money or balance of money, has often arisen; many cases have been cited in argument, they will be found collected in 1 Jarman, 703m, and in 2 Redfeld, 111, and notes. In Gosden vs. Dotterill, 1 Myl. & K., 56, there was a gift of “the rest of my money.” It was held by Sir John Leach, M. R., that under this bequest, stock belonging to the testator did not pass. In that case it was said to be established by the authorities, that the term “money” will not pass stock, unless there is in the will some explanatory context. A similar decision was made in Lowe vs. Thomas, 5 De G., McN & G., 315, where the bequest was of “all my money,” it was held, that stock did not pass. And in Collins vs. Collins, L. R., 12 Eq. Ca., 455, decided in 1871. Where the words of the will were, “As for my worldly goods and chattels I bequeath them as followeth: ” The testator then gave several pecuniary legacies, and among the rest, to his daughter S. a legacy of £3000. He also bequeathed to his daughter S. “ all things in the house remaining, and all moneys, both in the house and out of it,” and made no express residuary bequest. “At the time of his death, testator had moneys in his house, at his bankers, and at a savings bank. He had also due to him arrears of a superannuation allowance, and a sum for funeral expenses from a friendly society; as to all which there was no question. “ He had besides some shares in a building society, and some consols, standing in his own name.” It was held, — 454 — that the shares and stock did not pass under the bequest of “all moneys, both in the house and out of it.” On the other hand; in Dawson vs. Gaskoin, 2 Keen, 14, Lord Langdale said the word money may be so used in a will as from the whole context to show that testator meant to pass stock, and in that case he held, that such intention clearly appeared; and Sir John Leach, M. R., in Kendall vs. Kendall, 4 Russell, 360, said, “it is true, that upon the whole context of particular wills, it may be clear, that stock was not intended to pass, and therefore will not pass by any of the words here used; but it is equally true, that upon the whole context of other wills, stock may pass by any one of the words here used, except the word ' clothing.’ In that case the words were all moneys, goods, chattels, clothing, &c., my property.’ ” In Stocks vs. Barre, Johnson’s (Eng. Ch.) R., 54, it was held by V. C. Sir Page Wood, that a bequest of “any "money” which may remain after payment of testator’s debts, in the absence of any other bequest of the residue "of testator’s personal estate and effects, included the general residue of the personal estate not specifically bequeathed, and-which by law is liable to the payment of testator’s debts. In that case it was held, that such a bequest of money, passed the testator’s reversionary interest in a sum charged on real estate by an indenture. The case of Stocks vs. Barre, has been much relied on by the appellant in argument, and the reasoning of the Vice-Chancellor, has been supposed to establish as the proper construction of the will before us, that the gift of the balance of money, after having provided for the payment of debts, is equivalent to a general residuary devise, and carries the whole residue of the estate of the testatrix, not before disposed of. We cannot so construe this will. It has been correctly said, that “in the construction of wills, the object of the Court is to give effect as far as it can, to the real-meaning of testators.” — 455 — Here the bequest is simply of “a balance of money.” The context shows, that the testatrix meant to dispose of only what belonged to her consisting of money, and the language of the will does not support the theory of the appellant, that the testatrix meant by those words to dispose of her interest and estate in the hotel property. Such an interest and estate will not ordinarily pass under a bequest of “money.” Mann vs. Ex’rs of Mann, 1 Johns. Ch. R., 231. There is nothing in the context to show, that the testatrix used the word money in any other than its customary and popular sense, and to extend its meaning, so as to embrace her interest in the hotel property would be doing violence to the real intent of the testatrix. In our opinion, the will operates only to dispose of the money belonging to the testatrix, arising from her annuity, and that she died intestate of all her interest and estate in the hotel property. We therefore, on this question, concur in the opinion of the Circuit Court. Objection has been made by the appellant to the terms of the decree, whereby an account is directed to be taken of all the moneys which have come to the hands of the executor, arising from the sale of the hotel property. Whereas, the executor only brought into the Circuit Court the balance of the same remaining in his hands, a portion thereof having been paid out and disbursed by him, and allowed by the Orphans’ Court, as shown by his administration account, and exhibited with his bill of complaint. In the answers of the respondents, no question is made with respect to the payments and disbursements by the executor, as stated in his account, except, that the administrators of Robert Fowler, deceased, who was assignee of Augustus McLaughlin, deceased, allege in their answer, that “ the executor has in his hands a much larger sum for distribution, than the sum mentioned in his account.” And in the answer of Augustus K. Barnum, — 456 — it is claimed, that the pecuniary legacies are not payable-in any part out of the moneys arising from the sale of the-hotel. (Decided 17th June, 1879.) No proof has been adduced showing errors in the-administration account, and its correctness was not questioned in the argument; nor were any of the disbursements made - by the executor, and allowed by the Orphans' Court, alleged to have been erroneously allowed. So far as appears from this record, the account of the-executor exhibited with the bill is correct, and the sum for distribution is the balance thereby shown to be in his hands. An examination of the account, shows that the sums paid on account of the pecuniary legacies were no-more than what remained of the cash received from the annuity, after the payment of debts, funeral expenses and commissions, and that no part of the money arising from the sale of the hotel has been applied to the payment of the pecuniary legacies. We conclude, therefore, that the decree below is erroneous, in so far as it directs an account to be taken of all the moneys arising from the sale of the hotel, and that the true amount for distribution is. the balance shown by the account of the executor to be in his hands, viz: the sum of $26,370.59. The decree of the Circuit Court will be affirmed in part,, and reversed in part, and the cause will be remanded, to the end that an account be taken, and distribution made amongst the parties entitled according to the views herein-before expressed, the costs in this Court, and in the Court ■below to be paid out of the fund. ' Affirmed in part, and reversed in part and cause remanded.