Barnett v. Barnett

• Decision Date: 11 January 1912
• Parties: BARNETT v. BARNETT et al.
• Court: Maryland Court of Appeals

83 A. 160

117 Md. 265

BARNETT v. BARNETT et al.

Court of Appeals of Maryland

January 11, 1912

Appeal from Circuit Court of Baltimore County.

Action between Amelia Emma Barnett and De Warren Beauregard Barnett and others. From the decree, Amelia Emma Barnett appeals. Affirmed.

Crain & Hershey, for appellant.

Robert W. Beach, for appellees.

STOCKBRIDGE J.

On December 5, 1888, Amelia Elizabeth Barnett executed her will for the express purpose of "making some disposition of my real estate." By this instrument she provided that in the event of her husband surviving her, he should have entire control of the farm belonging to her on the Reisterstown turnpike road, in Baltimore county, comprising about 63 acres, but without the power to sell the farm or any part of it, or to permit it to be incumbered by debts or mortgages, or to depreciate from neglect, and with the further expressed wish that her unmarried children should "have a comfortable support from the proceeds of the farm." At her husband's death, and after all debts were paid, and the sum of $3,900 paid to her daughter, Amelia Emma Barnett, her will continues as follows:

"Then an equal division of my property, or if sold, an equal division of proceeds among my five children, Amelia Emma Barnett, Estella Virginia Barnett, Jessie Davis Barnett, De Warren Beauregard Barnett, Florence Lee Barnett, and in the event of the death of any of my children before the settlement of the estate, then their portion shall go to their children, but if they have no children, then their portion shall be equally divided among my surviving children, and to the children left by any of my other deceased children, should there be any. It is my desire that my children shall have their portion of my estate for their exclusive benefit or maintenance and at their death go to their children absolutely, but if any of my children should marry and die without children then their portion shall revert to my surviving children and children left by any of my deceased children."

Nine years after the execution of this will the testatrix executed a codicil in the following language:

"Finding portions of my original will not arranged to my entire satisfaction I desire to make some alterations.

"I desire all of my children to have absolute control of their portion of my estate. I also desire that my children shall be very guarded in advancing their money to anyone. Should any loan be made to secure themselves against loss and in the event of the death of any of my children without issue what remains of their portion shall revert to my living children and children of my deceased children should there be any.

"It is my express desire that there shall be no dissention among my heirs over the division of my estate, and I furthermore stipulate that my property shall not be forced into market and sacrificed, but shall be held at least five years unless they can all agree to dispose of same to advantage before the expiration of five years."

The testatrix died on the 1st July, 1900, leaving her husband surviving her, and he died in February, 1909. The children of the testatrix are all adults, and the record in this case discloses but a single question which this court is called to pass upon.

That question involves a construction of the will, and the determination whether the language of the will and codicil operate to vest in the children of the testatrix an absolute fee or a life estate only. The express terms of the will created in the husband of the testatrix a life estate, which has now been terminated by his death. The limitation upon sale imposed by the concluding words of the codicil, being a time limitation of five years, has now expired, more than...