Cockey v. Cockey

• Decision Date: 23 June 1922
• Docket Number: 28.
• Citation: 118 A. 850,141 Md. 373
• Parties: COCKEY et al. v. COCKEY et al.
• Court: Maryland Court of Appeals

118 A. 850

141 Md. 373

COCKEY et al. v. COCKEY et al.

No. 28.

Court of Appeals of Maryland

June 23, 1922

Appeal from Circuit Court, Baltimore County; Walter W. Preston Judge.

"To be officially reported."

Bill by John T. Cockey and others against Anna B. Cockey and others for the construction of the will of the late Joshua F Cockey, deceased. From a decree, an appeal is taken. Affirmed.

Argued before BOYD, C.J., and BRISCOE, THOMAS, PATTISON, URNER STOCKBRIDGE, and ADKINS, JJ.

Francis Key Murray and Frederick W. Brune, both of Baltimore (Noah E Offutt, of Towson, on the brief), for appellants.

C. Gus Grason, of Towson, and Isaac Lobe Straus, of Baltimore, for appellees.

STOCKBRIDGE J.

This case originated in the filing of a bill for the construction, in part, of the will of the late Joshua F. Cockey, and, incidental to that, for the adjudication by this court of two additional points resulting directly from the construction if in accord with the views of the present appellants. The portion of the will, a construction of which is invoked, is in the following language:

"I give, devise and bequeath my homestead *** at Cockeyville, containing about sixteen acres of land with my dwelling house and all buildings ***, also all the furniture, portraits, pictures, silverware, ornaments, chinaware and dishes contained in my said dwelling house and my carriages, carriage horses and carriage harness, unto my wife, Anna B. Cockey, for and during the term of her natural life and no longer, and from and after her death to my son, Winfield Scott Schley Cockey, absolutely, should he be then living, should my said son, Winfield, die before his mother leaving descendant or descendants surviving her, then such descendant or descendants shall take the share to which my said son, Winfield, would have been entitled under this item I of my will, had he survived his mother, Anna B. Cockey, share and share alike. Should my said son Winfield die before his mother without leaving descendant or descendants living at the time of her death, then and in that event, I give, devise and bequeath said share to my son Bennett F. B. Cockey absolutely. Should my wife, Anna B. Cockey, die without leaving any child begotten of my body, then living, and without any descendants of any such child (then) and in that event, I give, devise and bequeath said share to my son, John T. Cockey, absolutely."

Instead of accepting the provisions made for her by the will, Mr. Cockey's widow renounced the will and elected to take the portion of his estate which the law gives in cases where there is no will. This immediately raises the question as to the effect of her renunciation upon the other parties named in the paragraph quoted, whether the legacies were vested or contingent, and following that the appellants invoke the judgment of the court as to whether the remainder was or was not accelerated as the result of the renunciation by the widow, and lastly, they take the position-

"that they are entitled to have the renounced life interest in two-thirds of the property embraced in item I of the will of Joshua F. Cockey sequestered or rather sold, and the proceeds sequestered to compensate so far as may be those who have sustained loss through the widow's renunciation and election."

In renouncing the provisions made by the will, Mrs. Cockey was simply taking advantage of the provision made for her by law. As to the effect of her renunciation, that act must be regarded as equivalent to her death, and it has been so held in a long line of cases in this state, beginning with Darrington v. Rogers, 1 Gill, 403, down to cases decided within the last 12 months. See Devecmon v. Kuykendall, 89 Md. 25, 42 A. 963; Davis v. Hilliard, 129 Md. 348, 99 A. 420, and Craig v. Craig (Md.) 117 A. 756, decided in January of the present year, 1922.

The cases cited, however, go a step further than this, and hold that, the renunciation having been made, it is the disposition of the courts to regard legacies for life with remainders over as constituting vested rather than contingent devises. This is in strict analogy with the principle that the law favors the early vesting of legacies whenever it can do so without doing violence to the intent of the testator as expressed in his will, or where there is nothing contained in the will indicative of an intention or desire on the part of the testator that the legacy should be of a contingent nature. Tiffany's Law of Real Property, § 121, pp. 289 290; Tayloe v. Mosher, 29 Md. 443; Hoover v. Smith, 96 Md. 394, 395, 54 A. 102; Roberts v. Roberts, 102 Md. 149, 150, 62 A. 161, 1 L. R. A. (N. S.) 782, 111 Am. St. Rep. 344, 5 Ann. Cas. 805. The same principle is announced by all the leading text-writers upon the subject, such as Fearne on Remainders, Blackstone, and Kent. The adjudicated cases are filled with the attempts of various courts to distinguish between language which will create a vested remainder and that which will cause the court to hold the remainder interest to be a contingent...