Mudge v. Mudge

• Decision Date: 09 June 1927
• Docket Number: 22.
• Citation: 138 A. 20,153 Md. 291
• Parties: MUDGE v. MUDGE.
• Court: Maryland Court of Appeals

138 A. 20

153 Md. 291

MUDGE v. MUDGE.

No. 22.

Court of Appeals of Maryland

June 9, 1927

Appeal from Circuit Court, Baltimore County; C. Gus Grason, Judge.

"To be officially reported."

Bill by Margaret H. Mudge against Arthur P. Mudge, individually and as executor of the last will and testament of Edward Tileston Mudge, deceased. Decree for defendant, and plaintiff appeals. Reversed in part, affirmed in part, and remanded for decree in conformity with opinion.

Argued before BOND, C.J., and PATTISON, URNER, ADKINS, OFFUTT PARKE, and SLOAN, JJ.

Philander B. Briscoe, of Baltimore, for appellant.

Wm. H Lawrence and Leigh Bonsal, both of Baltimore, for appellee.

PATTISON J.

Edmund Tileston Mudge, late of Baltimore county, departed this life on or about the 7th day of January, 1926, after having, on the 30th day of September, 1925, executed his last will and testament in these words:

"I, Edward Tileston Mudge of Baltimore county, Maryland do make and publish this my last will and testament hereby revoking all wills by me heretofore made.

After the payment of my just debts and funeral expenses I give devise and bequeath my estate as follows:

First. I give and bequeath to my wife, if she survives me the proceeds of my life insurance policies, aggregating ten thousand dollars, should she predecease me, then the said ten thousand dollars to revert to my son Arthur P. Mudge.

Second. To my granddaughter Margaret I give and bequeath the sum of five thousand dollars absolutely and direct the sum of fifty dollars each month to be paid her until she shall in this way receive five thousand dollars. Should she die before receiving the said sum to be paid in this manner, any residue thereof to revert to her father, my said son Arthur.

Third. Should my son Arthur survive me I give and bequeath to him all my interest & share in the business of Dobler & Mudge. I hereby make him my residuary legatee and constitute and appoint him the executor of this will without bond.

In testimony whereof I have hereto subscribed my name and affixed my seal this 30th day of September in the year nineteen hundred and twenty five."

The will was on the 12th day of January, 1926, admitted to probate and thereafter letters testamentary were issued to testator's son Arthur P. Mudge, who qualified and entered upon his duties as such executor.

Margaret H. Mudge, the granddaughter of the testator, filed in the circuit court for Baltimore county, sitting as a court of equity, a bill against Arthur P. Mudge, individually and as executor of Edmund Tileston Mudge, deceased, asking for a construction of the will.

In her bill she alleges that:

By the "true construction of said last will and testament, and particularly of the second paragraph thereof, * * * the complainant is given and bequeathed the sum of $5,000, in addition to and in excess of the sum of $50 each month to be paid until an additional amount of $5,000 is received," though the "defendant denies that such is the proper construction of said last will and testament and claims that the testator intended only to give the sum of $5,000, to be paid in monthly installments."

The bill then alleges that:

"She has demanded, in writing, the payment of said $5,000, in addition to said monthly payments, but the defendant has refused to pay the same."

The defendant answered the bill, admitting all its allegations except the one alleging that, by a true construction of the will, the plaintiff was entitled to receive thereunder the amount claimed therein by her.

After a hearing upon bill, answer, and testimony taken in open court, the learned chancellor adopted the contention of the defendant and decreed:

"That the defendant, Arthur P. Mudge, executor of the last will and testament of Edward Tileston Mudge, pay unto the plaintiff, Margaret H. Mudge, the sum of $5,000, paying the same in installments of $50 each month until said total sum is paid; in the event of said Margaret H. Mudge dying before receiving the full sum of $5,000, the residue of said sum not paid is to go to her father, Arthur P. Mudge, as provided in said will.

It is further ordered and decreed that the bill filed in this case is not dismissed, and this court will hold the case until the estate is fully administered in the orphans' court of Baltimore county, when, upon a petition filed in this case by the plaintiff, this court will assume jurisdiction of the trust created under the second clause of the will relating to the bequest of $5,000 mentioned above.

And it is further ordered that the defendant pay the cost of this proceeding out of the funds of the estate of the testator." From that decree the appeal in this case was taken.

At the time of the death of the testator, he was the owner of a tract of land in Baltimore county, containing...