Hutchins v. Pearce
Hutchins v. Pearce
Opinion of the Court
delivered the opinion of the Court.
This is an action of ejectment, the determination of which depends upon the construction of the last will of John B. Pearce. Mr. Pearce died in 1874, leaving surviving him a son and two daughters. At the time of his death, his son, Jacob M. Pearce, was forty years of age, married and with a family of five children, ranging from one to twelve years
By his will John B. Pearce, after providing for the payment of his debts and funeral expenses, by the second clause bequeathed to his daughter, Mary Louisa, certain ground rents, particularly described, of the total annual value of $1,448, “subject to the trust, however,” thereinafter created; and by the third paragraph, to his other daughter, Sophia, certain other ground rents; of the total annual value of $1,419.50, also subject to the same trust. The fourth paragraph is as follows: “ I will and bequeath unto my daughters, Mary Louisa Pearce and Sophia Augusta Pearce, each the sum of five thousand dollars, to be invested in good securities or ground rents, and to be held in trust by my son., J. Myers Pearce, whom I hereby appoint trustee for my daughters, in all the property I have devised to them, both real and personal; the rents and incomes derived therefrom to be paid to them for their especial benefit; and in case my daughters die without issue, then such portion or portions shall become part of my estate and be divided between my surviving heirs.” After sundry minor bequests, he then bequeaths the rest of his estate to his son. The codicil is as follows: “ I annul all that part of my said will in which I directed my son to invest for my two daughters five thousand dollars each; and in lieu thereof T give and bequeath to my daughter, Louisa, four ground rents on the west side of Oregon street, near Thompson street, in the city of Baltimore, each rent 117 dollars, payable in March and September; and six rents of 90 dollars each on the east side of Gilmor street, payable half yearly on the 1st of January and the 1st of July.
*445 “ And unto my daughter Augusta, I give and bequeath five ground rents on the N. W. corner of Carey and Edmond-son streets, each lot ioo dollars annually, payable on the ist of January and 1st of July, and a rent of 400 dollars on the York turnpike, fronting thereon 100 feet, running back to Barclay street 400 feet, payable quarterly, in May, August, November and February; the same rents to be held in trust as directed in my foregoing will.”
The first question that arises is upon the proper construction of the fourth paragraph of the will, and this, we are of opinion, is free from difficulty. Though the testator, in the first clause, uses no words of perpetuity, there is nothing in the will to indicate that he intended his daughters should take anything less than an absolute interest in the property. This, however, is subject to the limitation, that “ in case my daughters die without issue, then such portion or portions shall become part of my estate, and be divided between my surviving heirs.” The words “ die without issue,” unless a contrary intention appear by the will, must be construed, since the Act of 1862, ch. 161, to mean a want or failure of issue in the lifetime or at the time of the death of the person so taking. Lednum v. Cecil, 76 Md. 153; Mason v. Johnson, 47 Md. 355; Devecmon v. Shaw, 70 Md. 224; Gambrill v. Forest Grove Lodge, 66 Md. 17. And we are of opinion that this construction effecutates the intention of the testator, as gathered from a fair examination of the whole instrument when taken in connection with his surroundings and the objects of his bounty. He had three children, a son and two daughters, and to them he bequeaths his entire estate, with unimportant exceptions. The daughters were unmarried; one of them was thirty-two years of age, the other thirty-six. He must have contemplated the possibility of one or both dying without leaving children, and if that did so occur, it appears to have been his wish that such portions of his property as he had left them should pass to such of his own descendants as might then survive. To make this desire effectual, he created a trust,
From what we have said it follows that we find no error in the ruling of the Court below, and the judgment will therefore be affirmed.
Judgment affirmed.
Reference
- Full Case Name
- ELIZABETH S. HUTCHINS v. JACOB M. PEARCE and Others
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- 14 cases
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- Syllabus
- Devise and. Legacy — Dying without Issue — Will and Codicil Construed Together — Substituted Legacy\\. A testator bequeathed a sum ot money to his daughter A., to be invested and held in trust by a trustee, with a limitation over in case A. should die without issue. Held, that A. took an absolute interest defeasible upon her dying without issue living at her death, and such property cannot pass under her will in the event of her so dying. In such a bequest, the time to which the dying without issue refers is that of the death of the legatee and not of the testator. Where the property given by the codicil is merely in substitution of that given by the will, it is taken with all its accidents. By his will a testator bequeathed a sum of money to a'trustee to be invested for the benefit of his daughters A. and B., and provided that in case they should die without issue, then such portion “ shall become part of my estate and be divided between my surviving heirs.” By a codicil-, the testator annulled that part of his will directing the trustee to invest a sum of money for his daughters, and “ in lieu thereof,” gave to his daughter A. certain ground rents, without expressly .making them subject to the limitation over, and by the next clause gave to his daughter B. certain other rents, adding “the same rents to be held in trust as directed in my foregoing will.” A. died without issue, leaving a will by which the residue of her estate was given to the plaintiff. Held,, That the devise of the ground rents to A. in the codicil must be read into the will; that she took in them an equitable estate in fee, subject to be defeated in the event of her dying without issue living at the time of her death, and that consequently the rents did not pass under her will.