Barnum v. Barnum

• Decision Date: 29 April 1875
• Citation: 42 Md. 251
• Parties: DAVID BARNUM, AUGUSTUS K. BARNUM, ELIZA STANNARD, and others v. CECILIA R. BARNUM, Widow and Devisee of JOHN K. BARNUM, WILLIAM B. MCLAUGHLIN, and others. WILLIAM B. MCLAUGHLIN, and others v. CECILIA R. BARNUM, and others.
• Court: Maryland Court of Appeals

42 Md. 251

DAVID BARNUM, AUGUSTUS K. BARNUM, ELIZA STANNARD, and others v. CECILIA R. BARNUM, Widow and Devisee of JOHN K. BARNUM, WILLIAM B. MCLAUGHLIN, and others.

WILLIAM B. MCLAUGHLIN, and others v. CECILIA R. BARNUM, and others.

Court of Appeals of Maryland

April 29, 1875

The cause was argued before BARTOL, C.J., STEWART, BRENT, MILLER and ALVEY, J.

T A. Linthicum and Geo. H. Williams, for David and Augustus K. Barnum.

[The argument upon the exceptions to the auditor's accounts is omitted.]

Upon the point as to what becomes of the shares of Ephraim Kirby Barnum and Richard Barnum, they having died without issue the appellants contended:

First. That it has been absolutely settled by this Court in this case, that under this will, David Barnum's children, five in number, and named by him, by the will took life estates and life estates only.

Second. That being so established, they, the five children, of themselves, had nothing to devise or to grant beyond their life estates.

Third. That this Court has so far construed the will as to the testator's intention as to say that his intent was not only to confine his children to life estates, but to keep this property in his family in perpetuity. The perpetuity part of the matter the decision has destroyed, the construction as to intent remains; and to the extent that the intention, without contravening any principles of law, can be gratified, the construction as made remains for its accomplishment. Heasman vs. Pearse, 7 Chan. Appeals, 275, (Law Rep)

Reading the will with or without the aid of this construction, the intention is beyond dispute, viz: after life estates are exhausted, to confine the residue to his family and descendants; and the only possible gratification of this intent, and the only possible construction, is, that the grand-children in esse at his death take as a class and per stirpes inter sese. The word "respective" presents no difficulty. Watson vs Foxon, 2 East, 36; 2 Jarman on Wills, 475, (marg.;) Jones vs. Price, 11 Simons, 557. In these cases the word was rejected.

But even conceding there was an apparent particular intent arising from the use of this word, yet such particular intent would be contrary to the general intent, and in that case the rule of constructien in Maryland is that the general intent controls and overrides the particular intent. Chase vs. Lockerman, 11 G. & J., 185; Taylor vs. Watson, 35 Md., 519.

And to effectuate this, words in conflict are freely rejected. Robinson vs. Waddelow, 8 Simons, 360.

To effect the intention of a testator manifest from the face of a will, Courts everywhere have found no difficulty in transposing and changing words, or supplying words omitted. The plain intent here is that his children should have life estates only. It is equally clear that the limitation over is in favor of his grand-children, the next in order of the primary objects of his bounty.

Failing to provide in express words for the case of a child dying without children, if it were to be held that the testator died intestate as to that share in remainder, and that the child so dying without issue had anything in life to grant beyond his life estate, or anything to devise at his death, would be to hold that the child got more than a life estate in spite of the restriction to him of a life estate only. It would be flatly to contradict the express words of the will as well as the intent; and it would be to reward, as it were, over the others, the child for so dying childless; and also to cut down the estate of the others, and so punish them for having children, who as grand-children to this testator, were the primary objects in order of his bounty. Clark vs. Tennison, 33 Md., 93; Taylor vs. Watson, 35 Md., 519.

But the testator has given us his own understanding or interpretation of the words "the said investment shall be for the benefit of my children during their lives, and after their death shall be the property for the shares of the decedents of their respective children or descendants per stirpes. " He evidently supposed that these words would give the investment to such only of his children as should be living at the time of the making of the investment after the sale, and their children and descendants only. And therefore, in order to provide that all of his grand-children should share in the investment, and to guard against the exclusion of any of his grand-children whose parents might die before the investment made, he declares that "the children or descendants of such of my children as shall have died before the investment, taking as their absolute property and per stirpes the shares to which, if they had lived, the deceased would have been entitled," and by these words, as an exception, affirming his intent as before expressed, that no body should take but grand-children, and having sufficiently declared such intent, and also having, to exclude the only conclusion then in his mind, sufficiently provided that the grand-children born of a child dying before the investment was actually made, should not be deprived of their share by such death by any construction whatever; it was quite unnecessary for him to provide for the contingency of what was to become of the share of any one dying childless, as the whole was confined to grand-children, and grand-children only as such, and he had in his intent no other person whatsoever.

He was dealing with the investment as a whole, and intended the investment to go to his grand-children; and now to drop one-fifth from the investment and say that only four-fifths are to go to the grand-children, is to enlarge the express life estate only of his children to an estate in fee or absolute, and thereby disappoint this manifest intention of the testator.

Edward Otis Hinkley, for Eliza Stannard and others.

The children of the testator took life estates only, and where any child left no issue living at his decease, the share of such child went to the remaining children and their descendants, in the same manner as the original shares, the whole estate, both life estates and remainders being vested at the death of the testator.

The language of the second clause is: "the proceeds of sale to be invested * * * * the said investment shall be for the benefit of my children during their lives, and after their deaths shall be the property for the shares of the decedents of their respective children and their descendants per stirpes; the children or descendants of such of my children as shall have died before the investment, taking as their absolute property, and per stirpes the shares to which, if they had lived, the deceased would have been entitled."

The question here raised was touched upon in 26 Md., 178, which case gives a general view of the intention of the testator. See Chamberlain vs. Owings, 30 Md., 456.

In construing the will, the whole of it, even the void part, must be looked at, for the purpose of arriving at the general intent. Woollen vs. Frick and Golder, 38 Md., 443-4; Taylor vs. Watson, 35 Md., 524 and 529; Chamberlain vs. Owings, 30 Md., 454; Smither's Adm. of Jackson vs. Hooper and Wife, 23 Md., 285.

The particular intent, if not fully or clearly expressed, is nevertheless always subject to the general intent. Saylor vs. Plaine, 31 Md., 163 and 4; Thompson vs. Young, 25 Md., 459 and 460; Taylor vs. Watson, 35 Md., 524.

The construction by implication of intent, when not fully expressed is constantly in use, and may be illustrated by many cases--as well upon wills as deeds of trust, or family settlements.

The particular language of this gift seems to force the mind inevitably to the conclusion that there was no intention of intestacy as to any quantum of the estate, whether in possession or in remainder; and if the Court can see that there is no intention of intestacy, then it will find the intention in the words, and construe them; and herein we find the gift to be "for the benefit of my children during their lives"--to give them more than life estates is plainly not the intent; and no implication can be allowed against those express words.

The investment is of the whole estate, and it, when made, is for the benefit of the testator's children for life only, as here named, and to their children and descendants if any, evidently there is no intention to leave a gap either as to numerical parts, or as to the successive estates, such as for lives or in remainder; the whole estate is intended to be given by this clause, so if any portion remains by failure of issue of a child, it goes by the terms of the gift as the whole is given; for it cannot be said that a piece was intended to be left to intestacy in that event. See Clark vs. Tennison, 33 Md., 85; In re Ridge's Trusts, 7 Chan. Appeals, 655.

It is by no means unusual to construe by implication in the absence of express language, where the presumed intention would lead to it; thus to charge debts or legacies upon the realty, to imply powers, trusts and the like. Budd vs. Williams, 26 Md., 273; Tayloe vs. Mosher, 29 Md., 451; Lett vs. Randall, 10 Simons, 112.

In Burke & Fattle vs. Chamberlain's Lessee, 22 Md., 310, it is said the testator "did not design to die intestate of any interest in possession or reversion, which he might be entitled to." Here the gift to unborn children does not vest--there is therefore no devise to them. It is not a contingent remainder. The estate never went out of the testator to them; but vested only in the others named. It is not the case of a lapsed devise which goes under our Code to the heirs of a devisee living at time of making the will and dying after--for it has been held that this statute does not apply to one not living at the date of the will. Neither is it a case...