Rizer v. Perry

Irving, J., delivered the opinion of the Court. There are two appeals in this case taken by different parties in antagonistic interests, and both claiming against the heirs-at-law of Mrs. Mary Hoye, in whose favor the decree of the Court below was passed. The case therefore presents a tripartite contest. The trustees of “The Mary Hoye School House ” insist that the Court below was in error in declaring a certain legacy to them, void. The other appellants, who are the residuary legatees and devisees under Mrs. Hove's will, contend there ivas no error in declaring that legacy void, but that there was error in disregarding their claim, as the residuary legatees and devisees, to the proceeds of the void legacy or devise, (whichever it may be regarded,) and in giving the same to the heirs-at-law of Mrs. Hoye. The clauses of the will involved in this case, and the facts which raise the controversy, are sufficiently set out in the opinion of the Judge who decided the case below. The questions involved are so fully and clearly discussed in that opinion, and concurring as we do in the conclusions reached, we should add nothing to its reasoning, but for the earnest reliance of the counsel for the residuary legatees and devisees, in this Court, upon the 309th sec. of Art. 93 of the Code, as abolishing all distinctions between real and personal property as respects the operation of the residuary clause of a will. The argument in favor of that position was very ably presented; and at the hearing we were strongly impressed by the authorities cited from other States where statutes like our own prevail, and doubted whether our own decisions, pronounced since the [135] passage of the Act of 1849, which gives the section referred to in the Code, and without the point having been made, ought to be followed. After a careful examination of all the authorities cited, and others that were not cited, we find the decisions in the other States upon that question are by no means uniform; but on the contrary are very conflicting. The preponderance, if any, being we think in favor of upholding the distinction, so far as lapsed and void legacies are concerned, where the statute has not in express terms provided for them. In some of the States void and lapsed devises are held to stand on different foundations, and are to be controlled by a different rule. Following Doe, Lessee of Stewart vs. Sheffield, 13 East, 526, and Morris vs. Underdown, Willes, 293, it has been held that devises void from the beginning, pass with the residue under the residuary clause; whilst lapsed devises having been good when made, but becoming inoperative for after arising causes, should not so pass, unless expressly so directed by statute. Patterson vs. Swallow, 44 Penn., 486; Ferguson’s Lessee vs. Hodges, 1 Harrington, 524. Our decision of Lingan vs. Carroll, 3 H. & McH., (353,) 333, is referred to in those cases, and cited as counter authority which could not be followed. The doctrine of Lingan vs. Carroll was again re-asserted in Tongue vs. Nutwell, 13 Md., 415, in Deford vs. Deford, 36 Md., 168, and in Orrick and Wife vs. Boehm, 49 Md., 105; and that must still be the law of this State, unless the 309th sec. of Art. 93, which does not appear to have been brought to the attention of the Court in those cases compels a departure from the ruling in those cases. The language of our statute is very broad and general, and if it would not disturb the authority of decisions already rendered, in the face of the statute which it was the duty of the Court to know, and of which the Court did know and had passed upon hi other aspects, (though it was not, as appears, especially brought to their atten-r [136] tion in those cases,) we should incline to follow the rulings in Massachusetts and New Jersey, where they have statutes similar to our own; New Jersey's statute being almost verbatim, the same. But to follow the decisions in Prescott vs. Prescott, 7 Metcalf, 141, Thayer vs. Willington, 9 Allen, 295, and Smith vs. Curtis, 5 Dutch., 345, and other cases in those States of like import, would unsettle the law as it has been held and acquiesced in in this State since 1849, when the law was passed, and long before; 'and would be according to the statute an object and effect not heretofore ascribed to it or understood. Some of the cases cited, fully sustain the contention of the residuary devisees, that in those States statutes like ours have been held to erirtirely abrogate the distinction between real and personal property so far as the operation of a will on them is concerned. In Pennsylvania and New York, however, where similar statutes exist, an entirely different conclusion has been reached. There, in the absence of a section like the 25th sec. of 1 Vict., ch. 26, the Courts have held, that the old distinction was not wholly destroyed, but it applied only to’ after acquired property. Massey’s Appeal, 88 Pa., 470; Waring vs. Waring, 17 Barbour, 552; Vankleeck vs. Dutch Church, 20 Wendell, 469. The cases of Patterson vs. Swallow, 44 Pa., 486, Williams vs. Neff, 52 Pa., 329, and Yard vs. Murray, 5 Norris, which were relied on so confidently by the appellants, the residuary devisees, and which cases announced a similar doctrine to the decisions of Massachusetts and New Jersey, already cited, have been unqualifiedly overruled by Massey’s Appeal, 88 Pa., where the Court say, that the statements of the Judge, in those cases with respect to the effect of the statute, were -entirely aside the question before them; and adjudged the statute to have no such effect as was ascribed to it. The cases from Ohio, Illinois, New Hampshire and Maine, cited in argument, were all cases where after137 acquired property was involved, and the decisions went no further than to construe and decide the effect of the statutes thereon. We have heen able to find but one other case (outside the States where the 25th section of 1 Vic., ch. 26, has heen adopted,) where a question similar to the one presented here has heen considered, and that is Tatum vs. McLellan, 50 Miss., 1, where it was hold that the heir took a void devise. In that State after acquired ju'operty may pass hy the will. The decision of Tongue vs. Nutwell, was rendered upon a will long antedating the Act of 1819. But the cases of Deford vs. Deford, 36 Md., and Orrick and Wife vs. Boehm, 49 Md., wore upon wills made after that Act was operative. In Deford’s Case it was a concession of counsel on both sides, that void devises went to the heir-at-law; and it is true that the mind of the Court does not appear to have heen drawn to the possible effect of the Act of 1849, ch. 229. But in Rea vs. Twilley, 35 Md., 409, the construction of the Act of 1849, and its effect upon devises of after acquired property, was before the Court, and the Court said, that standing alone, the residuary clause was comprehensive enough to carry the after acquired property; hut that it would appear from the whole will, the residuary clause was not intended to embrace real estate, and that the heir was not to be disinherited unless the intention was clearly shown. It re-affirmed the doctrine, therefore, that the presumption was in favor of the heir-at-law, notwithstanding the Act of Assembly under consideration. It was, to that extent, therefore, the assertion of exactly the contrary doctrine contended for hy the appellants, (the residuary devisees,) whose contention is, that the statute changes the presumption, and shifts the onus. The effect of the decision in the liea and Twilley Case, is to re-assert the presumption in favor of the lxoir, and to re-state the doctrine that the intention is the main object of search in the construction of wills. In none of [138] the cases in this Court involving the construction of the Act of 1849, ch. 229, from Magruder & Frick vs. Carroll, 4 Md., 335, to Rea vs. Twilley, 35 Md., has it been suggested that the Act had any other object or eifect than to give to wills the eifect of carrying after acquired property, if the terms of the will were sufficiently comprehensive, and a contrary intent was not apparent in the will. The point now made and relied on, has never before been made in this Court. As it does not appear iu the will, that the testatrix desired the residuary devisees to take the property in question, and, as is said by the Judge of the Circuit Court in his opinion, a different intention being naturally inferrible from the effort to give the property to other persons, and devote it to a charitable object, we do not feel warranted by force of the statute alone to say, that the void devises pass to the residuary devisees. Eor the reasons stated by the Judge of the Circuit Court, and these in addition thereto, we must affirm the decree. (Decided 3rd March, 1882.) Affirmed with costs, and cause remanded. Stone, J., dissented as to the construction of the Act of 1849, ch. 229.