Chassaing v. Durand

Roberts, J., delivered the opinion of the Court. Emile Ducatel, late of Baltimore City, in this State, died in the city of Paris, republic of France, in the month of June, 1894, leaving a last will and testament and certain codicils thereto, all of which have been duly admitted to probate in the Orphans’ Court of Baltimore City and letters of administration with the will annexed of said deceased, were by said Court granted to Ferdinand E. Chatard, one of the executors named in said will, who accepted said trust 'and in due course of administration passed his first account in said Court. The other executor, Alfred B. Durand, named in said will, renounced the trust. Among the numerous other bequests contained in said will, the testator in the twentieth clause thereof provided as follows: “ I give and bequeath to my friend, Alfred B. Durand, all my furniture of No. 9 rue Clapeyron, including my library and other books and pamphlets, wines, &c., and in fact all that is to be found in said premises, free of all testamentary expense, requesting him to follow some instructions given in my private letter to him. By codicil No. 1 to said will the testator bequeathed as follows : “ I bequeath to my friend, Alfred B. Durand, the sum of two thousand dollars, in addition to my household effects in No. 9 rue Clapeyron, and I thank him in advance for his services in closing up my estate as testamentary executor.” Doubts having arisen as to the construction proper to be placed upon certain parts of said will and of the codicils; and certain of the residuary legatees having objected to the payment of the legacy to said Durand, contending that by a proper construction of codicil No. 1, the said legacy of two thousand dollars was intended by the testator as compensation for the services which Durand was to render in the settlement of the testator’s estate, and having renounced “ all right and claim to letters testamentary on said will, or to act as executor thereof,” he thereby disentitled himself [427] to claim or receive said legacy. Because of the uncertainties attending the administration of said estate under said will, and the conflicting views entertained concerning the testator’s true intent and meaning as to the bequest to said Durand, a Court of Equity has by this proceeding been appealed to for its direction and protection. There is, however, but one inquiiy before us on this appeal, the other questions having been satisfactorily disposed of by the Court below. The question lies within very narrow' limits and has frequently been before the Courts, both in England and in this country, for consideration and determination. So that we are only to ascertain and declare the testator’s intention as to the legacy claimed by Durand. The facts of this particular case and the language employed by the testator in conveying his wishes should control the result. The testator w7as unmarried and had a numerous family relationship, to most of whom he bequeathed something, either of considerable or inconsiderable value. In the will, dated the 22nd of September, 1885, there is bequeathed to Dr. Chatard the sum of $2,000 and to Mr. Durand the bequest’ hereinbefore stated, but to none of his relations, who are beneficiaries under his will, has he requested the performance of any trust or given them private instructions as to matters not set out in this will. This language significantly points to Mr. Durand as his trustworthy friend, to whom he committed the execution of certain private instructions which he wanted carried out, but which he manifestly intended should not be made public. We think it defines in very expressive terms the close and intimate relationship existing between the testator and Mr. Durand, and sufficiently accounts for the bequest to his friend. Five years later on the testator by codicil No. 1, executed at Paris and dated June 5th, 1890, bequeathed to his friend, Mr. Du-rand, the sum of two thousand dollars in addition to his household effects in No. 9 rue Clapeyron, but he nowhere intimates that the legacy to Mr. Durand or to Dr. Chatard is given in lieu of commissions as executors, or in consid [428] eration of the discharge of their duties as executors. There can be no controversy as to the rule of construction generally applied in cases of this character. The late Mr. Justice Robinson delivering the opinion of this Court in Halsey's case, 75 Md. 285, said : “ Where a bequest is made to one as executor, the presumption is that the legacy is given to him in his character as executor, in other words, the gift is annexed to his office; and if he refuses to act as executor, or dies before taking upon himself the trust, the legacy fails. But this presumption may be rebutted, and if, upon a fair construction of the entire will, and taking into consideration the circumstances under which it was executed, it appears that the bequest was made to him, not in his fiduciary character, but as an individual, and from personal regard or affection, then, in such a case, the intention of the testator must prevail, and the executor will be entitled to the legacy, even though he should refuse to discharge the duties of the office.” To the same effect is the law as settled in many well considered cases. The case of Read v. Devaynes, 2 Cox, Ch. 285, relied upon by the appellants in support of their contention, can scarcely be regarded as authority for their claim since we find Sir John Leach, V.-Ch., in delivering the judgment of the Court in Cockerell v. Barber, 2 Russ. 592, says, “ The question is, whether it does appear upon the face of this will that the testator meant that Mr. Palmer, in respect of his trouble as executor, should be confined to the particular legacies which he has here given him. There is only one Judge who has adopted the opinion broadly, that a iegacy given to an executor was to be considered as given on an implied condition, and that he could not take the legacy without taking upon himself the duties of the office. Even the Judge, who expressed that opinion, never carried it the length of a decision; for, in Road v. Devaynes, the point ultimately was not decided. That case in truth was one which might well warrant strong expressions of doubt on the part of the Judge; but those [429] expressions of doubt induced the executor to take upon himself the office, and thereby put an end to the question.” Then after stating -in full his reasons for the conclusion which he reached, which are clearly in accord with the views herein expressed, he adds, “ For these reasons, I am of the opinion that this will and codicil furnish clear and decisive evidence that the testator in his bounty to Mr. Palmer regarded him not simply in the character of executor, but in the character of a near and dear friend,- whom he considered as a special object of his regard.” This case was on appeal affirmed by Lord Eldon — S. C., 2 Russ. 599 — and is supported by In re Denby, 3 De G., F. & J. 350; Dix v. Reed, 1 S. & S. 237; In re Mason, 98 N. Y. 533; Burgess v. Burgess, 1 Coll. 367; Wildes v. Davies, 1 Sm. & G. 475; Slaney v. Watney, L. R., 2 Eq. 418; Pollexfen v. Moore, 3 Atk. 272. It is needless to pursue this inquiry farther, as the doctrine which must control us in declaring the testator’s intention in making the bequest to Mr. Durand has been announced in the Halsey case, supra, and is fully sustained by the English authorities, and is strictly in accordance with the canons of interpretation accepted as rules in the construction of wills. We think it only necessary to add that the will upon its face clearly demonstrates the fact that the testator was a man of intelligence, capable of knowing his own wishes and intentions and of expressing them in plain and exact terms, and that nearly five years before he bequeathed the legacy of two thousand dollars to his friend, Durand, he had nominated him as one of the executors of his will executed in 1885, and it is only reasonable to suppose that if he had intended the legacy to be accepted by him in his capacity of executor, or in lieu of his commissions, he would have employed apt words to convey his intention. The will executed in 1885 contains no less than twenty-three paragraphs, and there were subsequently, from time to time, executed eight codicils to the will, the first dated 1890, and the last in 1893. So that if the testator had desired to affix any condition to [430] the acceptance of said legacy to Mr. Durand, he had his will frequently under consideration and had the fullest opportunity of accomplishing his purpose. We find nothing in the record of this appeal to justify us in construing the will and codicils in accordance with the contention of the appellants, and must therefore affirm the decree of the Court below. (Decided April 1st, 1897.) Decree affirmed with costs.