Brome v. Pembroke

• Decision Date: 10 December 1886
• Citation: 7 A. 47,66 Md. 193
• Parties: BROME v. PEMBROKE AND OTHERS.
• Court: Maryland Court of Appeals

7 A. 47

66 Md. 193

BROME v. PEMBROKE AND OTHERS.

Court of Appeals of Maryland

December 10, 1886

Appeal from circuit court, St. Mary's county. In equity.

Daniel R. Magruder, for appellant.

Robert C. Combs, Joseph F. Morgan, and Daniel C Hammett, for appellees.

IRVING J.

This appeal is from an order of the circuit court of St. Mary's county overruling certain exceptions of the appellant to an auditor's report, and the ratification thereof. By that report certain amounts were awarded to the appellees as due from the appellant, and by the order appealed from the appellant was directed to pay the amounts awarded to the appellees. The funds in the appellant's hands arise from the sale of certain property devised to him, in trust, by the will of Thomas W. Gardiner, and the propriety of the order appealed from depends upon the proper construction of the will creating the trust.

The will, after the usual prefatory words, reads thus: " Second. I will and bequeath to my friend Dr. John M. Brome all my property, both real and personal, in trust for the support and education of my minor and unmarried children, to be so held in trust until the youngest child living shall arrive to the age of sixteen years, at which time I desire and will that my property shall be equally divided among both my married and unmarried children, and their heirs. Third. I appoint and name my friend Dr. John M. Brome trustee and executor of this, my last will and testament, authorizing him hereafter to name, by will or otherwise, a trustee as successor to himself; and I also authorize and empower him to sell, or otherwise dispose of, so much of my property, either real or personal, as may be necessary to pay all my just debts."

The oill charges that the youngest child of the testator has arrived at the age of 16, when, by the terms of the will, the property is directed to be divided. It charges that the personal estate amounted to the sum of $3,176.37, and that the debts of the testator amounted to $8,713.60. It also charges that the appellant sold the whole estate, real and personal, and accounted therefor in the orphans' court; but that he claimed allowances for expenditures in support and maintenance of the unmarried and minor children largely in excess of the income of the estate, to which, by law, and the terms of the will, it is contended he was restricted. The lower court sustained the view of the plaintiffs, and ordered an audit on that principle, and the order ratifying the same is the subject of this appeal.

Looking to the whole will, as we must do, for the real meaning of the testator, it is very clear that the lower court was right in the construction thereof. It contemplates that the minor and unmarried children shall have all the proceeds of this property until the youngest child shall reach the age of 16. Then it provides for an equal division of his estate among married and unmarried, minor and adult, children. He clearly did not design the property to be sold, except so far as the executor might find necessary to pay his debts; for the...