Black v. Herring

• Decision Date: 14 March 1894
• Citation: 28 A. 1063,79 Md. 146
• Parties: BLACK v. HERRING ET AL.
• Court: Maryland Court of Appeals

28 A. 1063

79 Md. 146

BLACK v. HERRING ET AL.

Court of Appeals of Maryland

March 14, 1894

Appeal from circuit court of Baltimore city.

Bill by Calvin H. Black against Annie Herring and others to construe parts of the will of Elizabeth W. Black, deceased. From the decree of the circuit court, complainant appeals. Reversed.

Argued before ROBINSON, C.J., and BRYAN, BRISCOE, McSHERRY, FOWLER ROBERTS, and BOYD, JJ.

J. J Wade, for appellant.

C. D Barnitz, for appellees.

ROBERTS J.

This case comes here on appeal from the decree of the circuit court No. 2 of Baltimore city on a bill filed by the appellant against the appellees to obtain the true construction of certain provisions of the last will and codicil thereto of Elizabeth W. Black, late of said city. The chief controversy arises out of the proper construction of the fourth clause of the original will, which reads as follows: "I give, devise, and bequeath all that lot property, and premises situate on the south side of Lexington street, which by deed dated the tenth day of July, 1866, I acquired from William W. McKaig, to my daughters, Mary E. Derringer and Annie M. Herring, and the survivor of them, and their successor in the trust, and executors, administrators, and assigns, the subreversion and subground rent in the back of the above-mentioned lot being included in this bequest; in trust and confidence, however, to hold the same, and to collect and have collected, receive, and receipt for, the rents, income and proceeds thereof, and to pay all taxes, ground rents, insurance, and other expenses therein (including a commission of five per cent. for their services), and, after paying out of the net proceeds of said property and premises, the sum of one hundred dollars to Mrs. Holmes, of Grafton, West Virginia, should they think proper so to do to pay over from time to time the net income and proceeds of said property to my said son, Calvin H. Black, for and during the term of his natural life, and to hold the same in further trust that upon the death of my said son, that then the said property and premises shall go to and become the property and estate of his children and descendants then living, share and share alike, per stirpes." This controversy is certainly a very narrow one, and depends solely upon a question of punctuation. We are called upon to determine the meaning and effect of the particular location of the comma in that part of the above clause which reads as follows: "And after paying out the net proceeds of said property and premises, the sum of one hundred dollars to Mrs. Holmes, of Grafton, West Virginia, should they think proper so to do to pay over from time to time the net income and proceeds of said property to my said son, Calvin H. Black, for and during the term of his natural life," etc. It is contended by the appellees that the comma appearing after the word "Virginia" invested the trustees with discretionary power over the trust fund, and authorized them "to pay over from time to time the net income or proceeds of said property to my son, Calvin H. Black," etc., or not, as they might think proper so to do. This, we think, would be giving to a mere matter of punctuation a controlling force in the construction of wills never yet, so far as we are aware, sanctioned or recognized in any authoritative statement of the law. This court, in Weatherly v. Mister, 39 Md. 629, has said that punctuation may perhaps be resorted to when no other means can be found of solving an ambiguity, but not in cases when no real ambiguity exists except what the punctuation itself creates. In such cases it will not be allowed to confuse a construction otherwise clear. It is conceded that if the comma had followed or been located at the end of the phrase, "should they think proper so to do," then the discretion to be exercised by the trustees would have related solely to the payment of the $100 to Mrs. Holmes. But we think the intent and meaning of...