Mines v. Gambrill

Bryan, J., after stating the case as above reported, delivered the opinion of the Court. Mrs. Mines, at the time of her death, owned no real estate. Certain personal property belonged to her absolutely, in addition to whatever rights she might be entitled -to claim under her father’s will. The seventh clause of the fourth item of this will clearly shows that the money left to her was to be held in trust, and that the trust was to be declared in a subsequent part of the will. It was declared in the ninth clause, which is in these words: ‘‘I give and bequeath to my friends, John H. Williams and Edward Khriver of Frederick City, in the State of Maryland, all the share or proceeds of mv estate, to which my daughter, Ann Margaret, shall be ' [34] entitled under this, my last will and testament, in 'special trust and confidence nevertheless, to invest the same in some safe security, or securities, and to hold the same with all the interests and dividends accruing therefrom, to, for, and upon the following uses and purposes, that is to say: To suffer and permit my said daughter, Ann Margaret, to take for her own use and upon her sole receipts, the incomes, or interest and dividends thereof, without anticipation, as they may be due and payable, for and during her natural life, and from and immediately thereafter their said share, or the investments thereof to be taken, possessed, and enjoyed by such person, or jiersons as she, in her last will and testament may appoint, except to Samuel S. Richardson, her former husband, and any bequest or devise she shall make to him, or for his use and benefit, either directly or indirectly, shall wholly fail, and be of no effect; biit such bequest or devise shall descend to such person or persons who would have taken the same under the laws of this State had she died intestate, and this I do, not as in any way reflecting upon my daughter, whose conduct towards him stands entirely above reproach, but from a wish to secure her from all annoyance that might occur from the suggestions of a base and cunning man. In all other respects I leave her perfectly at liberty to will her property as her best judgment and affection may dictate.” It will be seen that the equitable estate is given in clear and unmistakable terms to Ann Margaret, “for and during her natural life, ’ ’ with the power of appointment by last will and testament in favor of any person, or persons, except her former husband. The case of Benesch vs. Clarke, 49 Md., 504, distinctly determines that where property is devised or bequeathed to a person generally or indefinitely with power of disposition, the gift carries the entire estate; but where the gift is in express terms for life, the power does not enlarge the life estate into an absolute interest, [35] but it remains simply as a power annexed to the estate, by which it is competent to dispose of the reversion, and if the power is not executed, the reversion, if there is no limitation over, must go to the heir, or next of kin of the testator, according to the nature of the property. It. appears to us, therefore, to be quite clear, that unless the will of Mrs. Mines was a valid execution of this power, her legatee will take no interest in the trust fund. The Act of 1888, chapter 249, changed the pre-existing law of the ¡State on the subject of the execution of powers, but this Act cannot influence the present question. Before that Act, it had been repeatedly decided by this Court that “the intention to execute a power of appointment by will, must appear by a reference in the will to the power, or to the subject of it, or from the fact that the will would be inoperative without the aid of the power.” Mory vs. Michael, 18 Md., 241, and many other cases down to Malls vs. Dampinan, 69 Md., 390, and Cooper vs. Haines, 70 Md., 282. The will in question bequeaths to the husband of the testatrix all her property, of every description, absolutely, and revokes all former wills. It makes no reference to the power or to the subject of it. It operates with full effect on the personal property, which belonged absolutely to the testatrix at the time of her death. The property within the scope of the power was all personal estate, and therefore it is not necessary to look to it for the purpose of furnishing a subject-matter for the bequest. We cannot attribute much weight to the suggestion, that the will wais not necessary to vest in the surviving husband her personal estate; as she had no children. In point of fact the will was made, and does operate. It is of no avail to consider what would have been the husband’s title without a will; as the will was validly executed, he cannot claim anything except according to its terms. hlor is it [36] competent for us to infer the personal wish of the testatrix, and give effect to it, except from the circumstances which we have mentioned, namely, a reference to the power, or to the subject of it; or the question whether the will would have no operation without the aid of the power. We find the law so established, and we are obliged so to declare it. By the seventh clause of ({am-brill’s will, it was directed that in the event of failure of issue of any deceased child, his or her share should descend to the testator’s heirs. It is evident, when this passage is read in connection with the sentence immediately preceding it, that it means to provide for a failure of issue during the life-time of the testator. We have -seen that Ann Margaret took only an equitable life estate; as a necessary consequence the equitable reversion remained undisposed of, and vested in the testator’s next of kin, subject, however, tobe divested on the execution of the power. A child’s share of this reversion belonged to Mrs. Mines, and passed under her will. (Decided 11th June, 1889.) It will be seen that we agree with the Circuit Court in the decision of this cause. Decree affirmed; costs to be paid out of the trust fund.