Courtenay v. Courtenay

• Decision Date: 03 March 1921
• Docket Number: 48,49.
• Citation: Courtenay v. Courtenay, 138 Md. 204, 113 A. 717 (Md. 1921)
• Parties: COURTENAY et al. v. COURTENAY (two cases).
• Court: Maryland Court of Appeals

113 A. 717

138 Md. 204

COURTENAY et al. v. COURTENAY (two cases).

Nos. 48, 49.

Court of Appeals of Maryland

March 3, 1921

Appeals from Circuit Court of Baltimore City; Robert F. Stanton Judge.

"To be officially reported."

Suit by Charles Dana Courtenay and others against Alexander D. B Courtenay, Executor, to construe testator's will. From the decree, there are two appeals by plaintiffs differently interested. Decree affirmed.

Joseph France, of Baltimore, for appellants George L. and Julia L Courtenay.

C. John Beeuwkes and Eli Frank, both of Baltimore (Frank, Emory & Beeuwkes, of Baltimore, on the brief), for appellants Charles Dana Courtenay and others.

Harry N. Baetjer, of Baltimore, for appellees.

URNER J.

After making certain pecuniary bequests, the will of Isabella Courtenay provides as follows:

"I give, devise and bequeath all the remainder of my property of every kind, real, personal or mixed, whether in possession or expectation, or to which I may hereafter become entitled in any way, including all sums due to me by others, to my sister, Elizabeth Courtenay, should she survive me, absolutely, and entirely in her own right, and to heirs and assigns forever. But in the event that I should survive my said sister, Elizabeth, I direct that the whole of my estate at my death (except the two bequests first mentioned) be divided equally between my brother, William Courtenay at present, and for some time past, residing in the city of Brooklyn, county, state of New York, and the three sons of my deceased brother, David Courtenay late of Milwaukee, Wisconsin, namely: Charles Dana Courtenay, David Kirby Courtenay, Francis Chappelle Courtenay, and their mother, Frances Caroline (Chappelle) Courtenay, all now residing in the city and county of Milwaukee and state of Wisconsin, or their respective heirs and assigns, share and share alike."

The will was executed on January 31, 1908, and the testatrix, who was a resident of the city of Baltimore, died on August 20, 1918. She survived her sister Elizabeth, and also her brother William. By operation of law, the share of the latter in the residuary estate passing under the will has become vested in his widow, Julia Lawrence Courtenay, and his only child, George Lawrence Courtenay. Code, art. 93, § 326. The widow and children of the deceased brother David, named in the will, are all living. At the time of her death the testatrix held two promissory notes aggregating $5,540.74, made by her brother William many years previously, upon which no interest had been paid since 1908, and which are now uncollectible. The record in this court does not show the amount of the estate, but it was stated in the argument to be about $19,000.

Two questions are presented for decision: First, whether the share intended by the will for William Courtenay is chargeable with the amount of the promissory notes to which we have referred; and second, whether there should be a per capita or a per stirpes division among those entitled to share in the residuary estate. The lower court decided the first of these questions in the negative, and held, as to the second, that there should be a per capita distribution. From the decree giving effect to those conclusions, separate appeals have been taken by the respective parties interested in securing a different result as to one or the other of the questions thus determined.

The inquiry as to whether the share bequeathed to William Courtenay is subject to deductions on account of his indebtedness to the testatrix is entirely free of difficulty. In consequence of his death in her lifetime, and by virtue of the Code provision already cited, the share designed for him passed directly to his next of kin, and is, therefore, not chargeable with his debts to the testatrix, or any other creditors. Hemsley v. Hollingsworth, 119 Md. 444, 87 A. 506; Wallace v. Du Bois, 65 Md. 161, 4 A. 402; Glenn v. Belt, 7 Gill & J. 367.

The question as to the proper method of distribution among those entitled to the residuary estate depends, of course, upon the true meaning of the language which the testatrix has employed to express her intention on that subject. There are no other provisions of the will which reflect in any way upon the interpretation of the residuary clause, and its language alone must control our decision. In the event, which occurred, that the testatrix survived her sister Elizabeth, she desired the estate to "be divided equally between" her brother William and the three sons and widow of her deceased brother David. According to the per stirpes theory contended for, the share of William, to which his widow and son are now entitled, would be one-half, while a per capita division would give them one-fifth. The provision to be construed, with the allusion to preceding bequests and the designations of residences omitted as immaterial, may be requoted as follows:

"I direct that the whole of my estate at my death *** be divided equally between my brother, William Courtenay *** and the three sons of my deceased brother, David Courtenay, *** namely, Charles Dana Courtenay, David Kirby Courtenay, Francis Chappelle Courtenay, and their mother, Frances Caroline (Chappelle) Courtenay, *** or their respective heirs and assigns, share and share alike."

The quotation we have made shows the names of the legatees in the relative positions in which they appear in the will. The arrangement of the names in the way indicated affords no appreciable support to either of the opposing theories of construction, as the motive of the testatrix in thus giving special prominence to the names of some of the objects of her bounty is wholly conjectural. They were sufficiently identified as "the three sons" of the deceased brother David, "and their mother," and their subsequent designation by name was superfluous. If the provision is simplified by the omission...