Reid v. Walbach

Irvins, J., delivered the opinion of the Court, In the execution of a power of appointment in the will of her husband, Mrs. Eliza Whelan made a will and died in 1867. The will contains thirty clauses; and there are four codicils-. The provisions of this will and these codicils give rise to the questions presented in this case. By this will and these codicils certain property was given to Jane M. Walbach, a daughter of the testator, and a married woman, and to her sole and separate use; and Francis W. Elder and Thomas Whelan were appointed trustees to hold and manage the property for Mrs. Walbach. After proceedings in equity in the Circuit Court in Baltimore City, two parcels of the real estate devised in trust for Mrs. Walbach were decreed to be sold for better investment, and sales were made. But in the proceedings for the sale of .one of these parcels certain — 214 — persons now supposed to have been necessary parties defendant, were not made parties; and the case now under review was instituted for the purpose of getting the sales made ratified by the Court after bringing all necessary parties before the Court; and to get the Court to assume jurisdiction of the trust, and to appoint a trustee in the place of Thomas Whelan, deceased, and E. W. Elder, resigned; and to construe certain clauses of the will, and to direct the new trustee who shall be appointed in the place of Thomas Whelan, deceased, and Francis W. Elder, trustee, (who resigned and was released,) as to the distribution of the funds. The clauses of the will requiring consideration are the tenth, the twenty-first, the twenty-fourth, the twenty-fifth, and twenty-eighth; and the first, second and fourth codicils. . The tenth clause reads thus: “I give and devise to my daughter, Jane Margaret Walbach, the dwelling house and lot, (my present residence,) on the west side of Charles street in said city;” and the twenty-fourth clause isas follows: “It is my will that the property herein before given my daughter, Jane Margaret Walbach, shall be held by, and the same is hereby given to, my friend, Francis W. Elder, in trust for the sole and separate use of my said daughter for and during her natural life, so that the same and all the rents and profits thereof as they may accrue, may be taken and enjoyed by her as a feme sole, and free from the control of her present or future husband, and without being in any manner liable for his debts; and from and after her death in trust for her child or children then living, to be equally divided between them if more than one, and in the event of the death of a child, living my said daughter, the issue thereof, if any, to succeed to the part of its parent.” By the third codicil to the will Thomas Whelan, Jr., was appointed co-trustee with Francis W. Elder to execute the trust. — 215 — By the second codicil, and first "clause thereof, the testator says: “I give and devise a lot of ground on Federal Hill to my daughter, Jane Margaret Walhach, and her children, to be held and enjoyed by her and them in like manner as the real estate given to her and them by my last will is directed and appointed to be held and enjoyed. ” In the fourth codicil Eliza Whelan, the testatrix, devises as follows: “Whereas, in and by my last will I have given and devised to my son, Thomas Whelan, Jr., the warehouse and lot lying on the north side of Baltimore street in the City of Baltimore then occupied by Messrs. F. R. Waesche and Co., and others, and also the three feet alley in the rear of said lot and leading thence to Charles street. Now I do hereby revoke the said devise and in lieu thereof do hereby give and devise the said warehouse and lot and said alley unto the said Thomas Whelan, Jr., and to my daughter, Jane Margaret Walhach, and their heirs as tenants in common in the following proportions; that is to say, to my son two parts in three, and to my said daughter one part in three to be divided, and I give the part so intended for my said daughter unto my said son, and to my friend, Francis W. Elder in trust for my said daughter and her children and descendants in manner and form precisely as she and they are to have and enjoy the property which I have given'toher or them, or in trust for her or them by my said last will and the codicil thereto heretofore made by me.” Clause 28 of the will is a residuary clause in the following language: “All the rest and residue of my property and of the property over which I have any control, including ready money, rents, dividends, and other moneys due me at the time of my death after payment of my debts, funeral expenses and expenses of administration shall be divided as follows: To my daughter, Cornelia, one-half part thereof; to my daughter, Mary, — 216 — one-fourth part thereof, and to my daughter, Jane Margaret, one-fourth part thereof; and in the event of an insufficiency of said funds to pay said debts and expenses, the same is to he made up out of the property given to-my said son Thomas.” The Charles street property and the Federal Hill property have been sold under decree of the Court in separate proceedings, but the Baltimore street property has not been sold. The first question for consideration is, was there any contingent interest in the property given in trust for Jane Margaret Walhach left undisposed of? The Court below decided there was, and in that conclusion we fully concur. The property is given in trust for Jane Margaret Walhach during her life, and after her death in trust for her child or children then living, and in the event of the death of any child during the life of the mother the issue of such child to take the part of the parent. It is plain that there is no provision made for the contingency of all the children dying in the life-time of the mother leaving no issue. Should that condition of things occur it is evident that the fee-simple in these three pieces of real estate are undisposed of by the testatrix unless that contingent interest passes under the residuary clause of the will. By the language used there can be no vested interest in the children until the death of the mother, for it is to vest only in such children as may be living when the mother dies. The vesting-being contingent upon the mother’s death, and dependent on who may survive her, for the estate to'vest in, the interest is a contingent interest only. Demill vs. Reid, et al., 71 Md., 192; Larmour vs. Rich, et al., 71 Md., 369; Bailey vs. Love, 67 Md., 592; Straus vs. Rost, 67 Md., 465; Mercantile Trust and Deposit Co. vs. Brown, et al., 71 Md., 170; Engel, et al. vs. State, use of Geiger, 65 Md., 544. Mrs. Walhach is an old woman having but one — 217 — child — a daughter thirty-eight years old and unmarried, and if she was to die before her mother, and without issue, the life estate of the mother would be the only effective disposition as to those pieces of property. This contingent fee simple interest the Circuit Court decided, passed by the residuary clause, and in this view we agree also. Contingent estates of inheritance will pass by descent and are also devisable. Spence vs. Robins, 6 G. & J., 513; Hambleton, et al. vs. Darrington, et al., 36 Md., 444. This is a case where the testatrix, having failed to dispose of a certain contingent, and possible interest in the estate by special gift, we are asked to decide whether she is to be regarded as having died intestate thereof, or shall be regarded as having disposed of the same by the residuary clause of the will. In Booth vs. Booth, 4 Vesey, 407, Lord Alvanly says, “Every intendment is to be made against holding a man to die intestate who sits down to dispose of the residue of his property.” And this view is adopted by this Court in Dulany, et al. vs. Middleton, et al., 72 Md., 76. In Barnum, et al. vs. Barnum, et al., 42 Md., 312, this Court expressly decided that undisposed-of property will pass under a residuary clause of a will, no matter how it happens that any part of the property is not disposed of by the special provisions of the will. It may be that the testator may not know that he or she is leaving any thing unprovided for. Even if the testator does not know that the property undisposed of actually belongs to him, it will pass by a residuary clause sufficiently comprehensive in language to embrace it. Vide Barnum, et al. vs. Barnum, et al., supra. It has been suggested that the language of the residuary clause, in this will, is not comprehensive enough, but contains language which so narrows its effect and operation as to exclude this contingent estate. The language relied on for this contention is as follows: “All the rest and residue of my property, and of the property over which I have — 218 — any control, including ready money, rents, dividends and other moneys due me at the time of my death, ” &c. The particular kind of property which is intended to he covered by this provision, it is suggested, is here indicated as being moneys or funds. The word “including” is sought to be given the meaning of “consisting of,” and thus to designate what and what only was to pass by that clause. We do not think this a fair, natural, or reasonable construction of the language used. It begins with the language, “all the rest of my property, and of the property over which I have any control,” and then follows the language about the moneys. She evidently intends disposing of all the balance of her own property, and all the balance of that which she had the control over, by appointing the takers thereof. The words which are added were added by way of indicating that money was to be regarded as property within her meaning, and excluding the possible idea and conclusion that it was not intended to be included. Undue anxiety that all should be included has given rise to a contention that would not have arisen but for the effort to be more explicit than was necessary. The use of the word “ including” shows that the testatrix meant to put in something besides what was specially designated by the first words used. In charging the payment of debts and funeral expenses upon what was put into this residuary clause, and, if any deficiency, putting its payment on Thomas Whelan from what was given him, it is argued that this contingent estate can not be supposed to have been intended as included. It is very possible that the testatrix did not know she had made such an omission, in disposing of the real estate already mentioned, as to leave the fee in certain contingencies unprovided for; but that does not make any difference. Dalrymple vs. Gamble, et al., 68 Md., 528; Stannard vs. Barnum, et al., 51 Md., 451; Hambleton, et al. vs. Darrington, et al., 36 Md., — 219 — 446. The intention not to die intestate of any thing is clearly manifested in the disposition she makes of even small articles mentioned in the will. Another question has arisen under this residuary clause, and that is, how and in what proportion the distribution under it is to be made. The appellant contends, that under that clause Jane M. Walbach takes an interest, and that her interest is only for life ; and it is further contended that Geo. W. Reid takes (|-) three-fourths of his mother’s (Mary Reid) share, and that the heirs of Thomas Reid take one-fourth thereof.' As a daughter of the testatrix, and named as one of the legatees, Jane M. Walbach takes a share of the residue, and the question is, does that interest go in trust and for life only. There were four children, and Jane M. Walbach’s share is named as one-fourth of this residue. As that undisposed-of interest cannot arise till after Mrs. Walbach’s death, it would be a contradiction to say her share thereof is for life only, when such interest cannot in fact exist; and unless the language was so express that such construction was unavoidable it ought not to be adopted. But there is no difficulty about it. The clause creating the trust confirms the trust to the property hereinbefore given Mrs. Walbach. It does not attach to any property or interest given in a subsequent clause of the will. Whatever passed to her by the residuary clause of the will clearly passes to her absolutely, and unfettered by the trust. The twenty-fifth clause of the will, which directs the method of distribution between the children of Mary Reid, if both of them should survive her (for there were but two) confines the direction of distribution to the property hereinbefore given to the mother, and cannot by any fair construction be made to apply to and include property thereinafter given. By the word “hereinbefore” that only is intended and included which had already been given, and that which — 220 — is afterwards given cannot be held as controlled by the direction in the 25th clause of the 'will. Argument cannot make that plainer. Cornelia Whelan under the residuary clause takes one-half of the residue. .By her will after certain pecuniary bequests, she gives all the residue of her property to her brother Thomas Whelan, and there can be no doubt that he succeeds to her interest under the residuary clause of the will. The appellant contends that the interest in the furniture, set of china, and pew in the Cathedral pass to Mrs. Walbach for life only, and are controlled by the trust. We see no ground for this contention, and think the Circuit Court was right in decreeing Mrs. Walbach’s interest in those things or their proceeds was absolute and freed from the trust. The argument is that, as the fur.niture was given by the 21st clause of the will, it is included in the property described in the 24th clause as “property hereinbefore given,” to which the trust by that clause is made to attach. However plausible that contention might be if there were no other provisions afterward made, the subsequent provisions in the codicils relieve the matter from doubt. By the first codicil, reciting the disposition in the will of the furniture, she speaks of it as being intended for her daughter Jane and her sister Mary, without any qualification whatever; and then after stating that she had loaned this furniture to her daughter Jane, she says; “Now I do hereby will and direct that all' the articles which I have so loaned to my said daughter Jane, or which I may hereafter loan to her, shall on my death, go to and I hereby give and bequeath the, same to my said daughters Jane and Mary.” By this last expression of her will and wishes she gives the furniture loaned to Jane to her and her sister absolutely. She could not have intended a part to he in trust and a part to be an absolute — 221 — gift. This codicil reflects light on what was originally intended, and shows that the trust was only intended to apply to the real estate. It is very like the case of Wood vs. Conrey, 62 Md., 546, where the Court held that certain furniture named in the will was not subject to a limitation over, but that the limitation only applied to the real estate. The china is given without qualification by the second codicil, and the interest in the pew in the Cathedral is similarly given in the third codicil. These gifts are absolute and subject to no trust. It is worthy of note that whenever by codicil any thing is given to Jane M. Walbach, in whicli it was the wish of the testatrix that she should take only a life estate, and be subject to a trust, the qualification of the gift is expressly made. Having expressed the wish as to part, that about which .no such wish is expressed is excluded. Expressio unius exclusio alterius. (Decided 28th January, 1892.) The decree appealed from ratified the sale of the Charles street property and the Federal Hill property, and the investments made of the proceeds. .No objection has been made in this Court to the action of the Court below in this regard. In the case of the sale of the Federal Hill property all persons having any interest, vested or contingent, were made parties to the proceeding, and no reason has been assigned why that sale was not advantageous and proper. As to the sale of the Charles street property, it was shown to be advantageous to the parties, and it was admitted to be to the interest of all that it should be confirmed. The purchaser supposed when he bought that he bought all the interests of all the parties. Those who were not original parties having been brought in, offer no objection to the ratification of the sale, and that action of the Court as to that sale will also be approved. Decree affirmed.