Darden v. Bright

• Decision Date: 08 April 1938
• Docket Number: 89.
• Citation: Darden v. Bright, 173 Md. 563, 198 A. 431 (Md. 1938)
• Parties: DARDEN et al. v. BRIGHT et al.
• Court: Maryland Court of Appeals

198 A. 431

173 Md. 563

DARDEN et al. v. BRIGHT et al.

No. 89.

Court of Appeals of Maryland

April 8, 1938

As Modified May 20, 1938.

Appeal from Circuit Court, Dorchester County; T. Sangston Insley Judge.

Action between Jesse Darden and others, and Robert S. Brightexecutor of the last will and testament of James G. Darden late of Dorchester County, to construe the deceased's will.From an adverse decree, Jesse Darden and others appeal.

Affirmed.

Wendell D. Allen and H. Vernon Eney, both of Baltimore (A. Stengle Marine, of Cambridge, and Armstrong, Machen & Allen, of Baltimore, on the briefs), for appellants.

V. Calvin Trice, of Cambridge, for appelleeRobert S. Bright, executor.

Q. C. Davis, Jr., of Norfolk, Va., for appellees children of Louis C. Darden.

Argued before BOND, C.J., and URNER, OFFUTT, PARKE, SLOAN, MITCHELL, SHEHAN, and JOHNSON, JJ.

PARKE Judge.

The will of James G. Darden, who died on November 18, 1933, was duly executed on September 14, 1931, and was admitted to probate on November 24, 1933.He had no issue, but he was survived by his wife.Three of his brothers and a sister had died before the date of the will without leaving any descendants.Another sister had died a number of years before the will was drawn, and had left an only child who was alive at the date of the will.A brother of the testator had died on November 7, 1923, and was survived by six children, all of whom were living at the time of the execution of the will and are now alive.The remaining brother was alive when the testator made his will, and at his death.This brother has nine children all of whom were alive when the will was executed and when the testator died.With this family relation in mind the testator made a will which disposed of a large estate that, at his death, had become much less in value.

The will provided for his burial and the payment of all his debts, and then devised and bequeathed to his wife only such portion of his estate as she would have received if he had died intestate.By the next paragraph he made bequests in language which has given rise to the controversy at bar.The exact words are these: 'Fourth: I give and bequeath, free of tax, the sum of Five thousand dollars to each one of the children of my brother, provided they are living at the time of my decease.If any of such children are then deceased the said legacy shall lapse and become part of my residuary estate.'

By the fifth paragraph, the testator devised and bequeathed all the residue of his real and personal estate of every kind absolutely and in fee to four persons as tenants in common.They were two daughters of an old friend, a former close and intimate business associate and a friend who was his legal adviser.The legal adviser was made the sole executor.The other provisions relate to the details of the administration of the estate and the powers of the executor, and do not affect the questions at bar.

Louis C. Darden is the name of the only brother who was alive at the execution of the will, and the chancellor construed the gifts to be to such of the nine children of this brother as might be surviving at the time of the testator's death.The construction, therefore, excluded the six children of the decedent's brother, Samuel Darden, who was not alive at the time the will was written.These excluded nephews and nieces bring the present appeal.

The appellants urge that the language used is susceptible of more than one interpretation, but, when construed in the light of circumstances, shows that the children intended are those of the dead brother.If this be held untenable, then, in further illustration of the danger of letting plain words yield to an intention drawn from indefinite circumstances, an alternative benevolent construction is advanced that the testator's legatees embraced not only the surviving children of his dead brother, but also those of his living brother.The circumstances, which are contended support these alternative constructions, are found in the extrinsic evidence offered of facts and declarations to show an alleged testamentary purpose and preponderant or equal affection and interest of the testator in the dead brother and his children, so that the inference is to be made that he intended his gifts to be to the exclusion of the children of his living brother, or, at least, to include both classes of children as like beneficiaries.These efforts provoked countervailing extrinsic testimony to show that the construction of the chancellor is in harmony with testator's purpose.Thus the court is, in effect, solicited to construe the written, final expression of the decedent's testamentary purpose in conformity with what may, on the conflicting testimony, be the court's conclusion of what the testator intended, notwithstanding the plain meaning of the words of the will and their clear and specific application to the subject and objects of the testator's bounty.

The aim of the construction of a testamentary document is to ascertain and declare the meaning of the testator in reference to the subjects and objects of his testamentary disposition.The canons which control the court are well established.There is always the necessity of translating the words of the will into things and facts.The translation may be impossible because of some inherent or patent defect of expression; or it may be so simple and clear of rendition as to make the application of the document to persons and objects immediately and directly apparent.Hawman v. Thomas,44 Md. 30;Cassilly v. Devenny,168 Md. 443, 450, 177 A. 919.But whenever the language admits of construction, the sense in which the testator used the terms of the document is to be sought in association with all the circumstances which tend to make clear the sense in which the words were understood by the testator.Thayer on Evidence, p. 425.

The words of a will are to be taken in their primary and usual meaning, unless customarily used by the testator in a sense peculiar to himself.There is nothing on the record to indicate that the words of the will are to be taken in other than their ordinary and grammatical sense.The document was drawn according to the instructions of the testator by a competent attorney, who employed clear, consistent, and appropriate language, and it was read and approved by an intelligent business man as the satisfactory expression of his testamentary purpose.There is no patent ambiguity, and the general rule is that no expression of intention with reference to the subject of the document may be considered.The reason is that an extrinsic statement may not be received to modify or nullify the words of a document.Moreover, an oral utterance would not be a compliance with the statutory requirement that a will be in writing.Miller on Construction of Wills, § 40.However, for the purpose of determining the objects of a testator's bounty, or the subject of disposition or the quantity of interest intended to be given by the will, the court may inquire into every material fact relating to the person who claims to be interested under the will, and to the property which is claimed as the subject of disposition and to the circumstances of the testator and of his family and affairs, for the purpose of enabling the court to identify the persons or things intended by the testator or to determine the quantity of interest he has given by his will.Wigram's Extrinsic Evidence in Aid of the Interpretation of Wills, proposition V. ^[1] Furthermore, if the language of the will is plain and single yet is found to apply equally to two or more subjects or objects, extrinsic evidence and declarations of intention, also, are permitted to assist in the interpretation of this latent ambiguity or equivocation on the theory that, since the terms of the will describe two persons or objects with equal accuracy when only one is meant, 'there,' in the language of Wigmore, 'can be no competition with the words of the document by declarations which merely expand and make more specific those words.'Wigmore on Evidence, 2d Ed., § 2472.The declarations are admissible for the purpose of establishing what the testator understood was signified by the words employed in the will.^[2]Miller on Construction of Wills, §§ 41-44.

Should the terms of the document, when applied to facts and things be found certain so that the sense of the words in which they were used is clear, the office of construction is at an end.The language of the will at bar is plain and precise.The subjects of the gifts are the several sums of $5,000, and its objects are, primarily, every one of the children of the testator's brother, if living at the death of the testator, and, secondarily, the four named residuary legatees, in the event that a legacy should lapse by an original legatee not surviving the death of the testator.These clear terms have reference to the qualifications, at two successive stages in time, of the legatees.The two stages are, first, the time of the execution of the will, and, secondly, the time of the testator's death.At the date of the making of the will, the testator first defined the nephews and nieces with a potential right of legacy to be one of the then living or future born children of testator's brother.Miller on Equity, § 9, pp. 41, 42, § 39, § 86;Benson v. Wright, 4 Md.Ch. 278, 279;Shotts v. Poe,47 Md. 513, 519, 28 Am.Rep. 485.SeeCowman v. Classen,156 Md. 428, 144 A. 367.After prescribing the conditions for admission to the number of potential legatees, the testator made survivorship at the time of his death a condition precedent for the potential right of any legatee to become a vested right.None but a living legatee could take.If death should...