Bristol v. Stump
| Decision Date | 16 March 1920 |
| Docket Number | 31. |
| Citation | 110 A. 470,136 Md. 236 |
| Parties | BRISTOL et al. v. STUMP. |
| Court | Maryland Court of Appeals |
Appeal from Circuit Court, Harford County; Wm. H. Harlan, Judge.
Suit by Cassandra Bristol and John W. Stump against Bertram N. Stump individually and as executor of the will of Herman Stump deceased. From decree for defendant, plaintiffs appeal. Reversed, and cause remanded for decree in accordance with the opinion.
J Albert Baker and John L. G. Lee, both of Baltimore, for appellants.
James J. Archer, of Bel Air (S. A. Williams, of Bel Air, on the brief), for appellee.
Herman Stump, Esq., late of Harford county, deceased, departed this life in January, 1917, after having first executed his last will and testament dated the 26th day of August, 1913, in which, after providing for the payment of his debts and costs of administration, he devised and bequeathed his estate as follows To his nephew, Bertram N. Stump, he gave his family portraits, his watch fob, a loving cup, and certain specific articles of his household furniture; to his niece, Rose Murray, he gave his bedroom clock, formerly belonging to her mother; and to his great-nephew, Herman S. Murray, he gave his watch. Then follows the clause in which it is said:
"I give, devise and bequeath to Bertram N. Stump the sum of two thousand dollars ($2,000) in trust to use and dispose of the same as in his judgment and discretion is for their best interests, one-half for the benefit of my nephew, John W. Stump, of the state of Texas, or his family, and the other half for the use and benefit of my niece, Cassandra Bristol, of the state of Texas or her family."
To his wife he gave the furniture in his dwelling house for and during her natural life. Then appears the direction that the mortgage on his real estate shall be paid out of the real estate, and not out of his personal property. The will then concludes by saying:
"I give, devise and bequeath all the rest and residue of my estate, real, personal and mixed, including my farm called 'Waverly,' to my nephew, Bertram N. Stump, and his heirs forever, and I constitute and appoint my said nephew to be my executor without bond."
As shown by the administration account, filed in a special case stated, the entire personal assets of the estate, amounting to $2,503.82, were insufficient to meet the expenses of administration and to pay the claims against the estate, which amounted in all to $2,750.49, making it necessary for the executor to advance to the estate the sum of $246.67 to pay such deficiency, leaving the bequest of $2,000 to Bertram N. Stump in trust wholly unpaid. It follows, therefore, that if said bequest is paid at all, it must be paid from the real estate of the testator, which at the time of the execution of the will as well as at the time of his death consisted of the farm of "Waverly" only.
The sole question presented by this appeal is whether the "gift, devise or bequest" to Bertram N. Stump of the sum of $2,000 in trust, one half for the benefit of his nephew, John W. Stump, or his family, and the other half for the benefit of his niece, Cassandra Bristol, or her family, is a charge or lien upon the farm called "Waverly."
By the above-quoted statute the bequest to Bertram N. Stump in trust for the parties mentioned is a lien upon the farm "Waverly," unless it be held that said farm was specifically devised unto him, or unless the contrary intention of the testator clearly appears.
A specific legacy is defined in England v. Vestry, 53 Md. 466, as:
See Miller v. Weber, 126 Md. 663, 95 A. 962.
In Dryden, Executor, v. Owings, 49 Md. 364, Judge Robinson, speaking for this court, said:
"Inasmuch as specific legatees are not liable to contribution in case of a deficiency of assets, and inasmuch as the legacy fails entirely if the testator parts with the property or thing specifically bequeathed, courts lean against construing a legacy to be specific, and have gone so far as to say that in no case ought a will to be so construed, unless the language imperatively requires it." Gardner v. McNeal, 117 Md. 34, 82 A. 988, 40 L. R. A. (N. S.) 553, Ann. Cas. 1914A, 119.
The question whether a testamentary gift of real estate is specific or general is to be determined by the same tests as where the subject of the gift is personal property. Estate of Painter, 150 Cal. 498, 89 P. 98, 11 Ann. Cas. 760.
With these observations we will proceed to consider whether the gift or devise to the testator's nephew, Bertram N. Stump, of the farm "Waverley" is a specific or general devise. In determining this question, the intention of the testator, as gathered from the whole will, must govern, if not inconsistent with some principle of law, and such construction must be given as will gratify every part of the will, if it can be done consistently with the general intent. Bowly's Lessee v. Lammot, 3 Har. & J. 4; England, Executor, v. Vestry, supra.
The testator in disposing of his estate first makes certain specific bequests to those mentioned. He then provides for the creation of the trust fund of $2,000 for the benefit of his nephew and niece, John W. Stump and Cassandra Bristol. Then follows the bequest to his wife and his direction that the mortgage upon his real estate be paid out of his real estate, and not from his personal property. He then devised to his nephew, Bertram N. Stump, the rest and residue of his estate, real, personal, and...
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Bish v. Bish
... ... the payment of the life estate for the benefit of the wife ... Code 1939, Art. 93,§ 346; Bristol v. Stump, 136 Md ... 236, 241, 110 A. 470 ... We are ... of the opinion that testimony should be taken to determine ... the ... ...