Emmert v. Hearn

• Decision Date: 01 September 1986
• Docket Number: No. 70,70
• Parties: Miriam E. EMMERT, Pers. Rep. of the Estate of George Gordon Roberts, Sr. v. Ruth R. HEARN et al
• Court: Maryland Court of Appeals

Page 19

309 Md. 19

522 A.2d 377

Miriam E. EMMERT, Pers. Rep. of the Estate of George Gordon

Roberts, Sr. v. Ruth R. HEARN et al.

No. 70 Sept. Term, 1986.

Court of Appeals of Maryland.

March 23, 1987.

William B. Dulany (Jeffrey D. Scott and Dulany, Parker & Scott, on the brief), Westminster, for appellant.

Nancy G. Fax (Norman M. Glasgow, Susan H. Sarch and Wilkes, Artis, Hedrick & Lane, Chartered, on the brief), Rockville, for appellee.

Argued before MURPHY, C.J., and ELDRIDGE, COLE, RODOWSKY, COUCH, McAULIFFE and ADKINS, JJ.

MURPHY, Chief Judge.

This case concerns whether, under the will of George Roberts, the bequest of "all my personal property" includes intangible as well as tangible personalty.

I

The testator died in 1981, survived by seven of his eight children. His wife had predeceased him in 1970 and a son, Richard, had died in 1971, leaving one child, Brian. The testator's will, executed in 1977, contained the following pertinent provisions:

"FIRST: I hereby direct my Personal Representatives hereinafter named to pay all of my just debts, and funeral expenses....

SECOND: I bequeath all my personal property to my surviving children to be divided equally.

THIRD: I devise all my real property to my daughter, MIRIAM ELEANOR EMMERT for the term of her life, in trust, to be known as the 'TESTAMENTARY TRUST.'

A. The net income from said 'TESTAMENTARY TRUST' shall be divided equally and paid to my surviving children.

D. The said 'TESTAMENTARY TRUST' shall terminate upon the death of my daughter, MIRIAM ELEANOR EMMERT, the Trustee and the principal of the Trust[ ], the remaining real estate or the proceeds from the sale of the real estate, shall be transferred to the 'INTERVIVOS TRUST' established prior to my death.... After said transfer of principal from the said 'TESTAMENTARY TRUST' to the said 'INTERVIVOS TRUST,' the Trustee of the 'INTERVIVOS TRUST' ... shall have the absolute power and discretion to sell the transferred real estate and shall then place the proceeds of such sales in the 'INTERVIVOS TRUST.'

FOURTH: All the rest, residue and remainder of my estate, real and personal, of every nature and description, and wherever situate, including any property over which I may have a general power of appointment, I give, devise and bequeath unto the 'INTERVIVOS TRUST'...."

At the time of Roberts' death, his estate was valued at approximately $750,000. Miriam E. Emmert, the testator's daughter and the personal representative of his estate, filed inventories showing real property appraised at $425,000, tangible personal property worth approximately $2,500, and intangible personal property, including corporate stocks, bonds, and bank accounts, appraised at $324,000.

As personal representative, Emmert filed a petition for declaratory relief in the Circuit Court for Carroll County. The petition alleged that the phrase "personal property" in Paragraph Second was ambiguous when considered in light of other provisions of the will; that the testator intended the phrase to mean only tangible personal property; that the existence of the residuary clause in Paragraph Fourth indicated the testator's intention that some portion of his assets would remain and pass under it; that if "personal property" were construed to include intangible personal property, then nearly one-half of the testator's estate would pass under the bequest of Paragraph Second directly to the surviving children and not into the inter vivos trust under Paragraph Fourth ¹; and that such a result would be contrary to the testator's desire to treat his children and grandchildren equally, as evidenced by the distributive schemes of the inter vivos and testamentary trusts.

The trial court (Nissel, J.) concluded that "in determining the quantity of interest the testator intended to pass and to which beneficiaries the interest is to pass" a latent ambiguity existed as to whether "personal property" in Paragraph Second included intangible as well as tangible personal property. The court held that extrinsic evidence was therefore admissible to "clear the ambiguity." Over objection, ² it admitted the testimony of the personal representative, one of the testator's children, and the deposition of the attorney who drafted the will, all to the effect that the testator intended "personal property" in Paragraph Second to mean only tangible personal property. The court found that the words "personal property," as used in Paragraph Second, applied only to tangible personalty and that the intangible personal property passed under Paragraph Fourth of the will into the inter vivos trust.

The Court of Special Appeals, in an unreported opinion, reversed the judgment of the circuit court. It recognized the rule that extrinsic evidence and declarations of intention are permitted to determine the testator's intention where a latent ambiguity exists in a will. But it found that the words of the will were clear and that no such ambiguity existed. Relying upon our cases, the court said that the words "personal property," without more, include every form of personal property, both tangible and intangible and that where, as here, the will was drawn by an attorney, the words employed must be given their accustomed technical meaning. In so concluding, the court recognized that Paragraph Second created an inequality among the legatees because it excluded a deceased child's issue from sharing in the distribution of the personal property. It said, however, that it was not free to interpret the will so as to achieve equality among issue, and that because there was no latent ambiguity, the trial court was in error in admitting extrinsic evidence of the testator's intention. We granted certiorari to consider the significant question raised in the case.

II

In construing a will, the paramount concern of the court is to ascertain and effectuate the testator's expressed intent. Leroy v. Kirk, 262 Md. 276, 279, 277 A.2d 611 (1971); Shellady, Inc. v. Herlihy, Ex'r, 236 Md. 461, 471, 204 A.2d 504 (1964); Marty v. First Nat'l Bk. of Balto., 209 Md. 210, 216, 120 A.2d 841 (1956). The testator's intent must ordinarily be gathered from the four corners of the will, Reedy v. Barber, 253 Md. 141, 148, 251 A.2d 882 (1969), with the words of the will given their "plain meaning and import." Leroy, supra, 262 Md. at 280, 277 A.2d 611; Marty, supra, 209 Md. at 217, 120 A.2d 841. However, words having legal significance will be construed in that sense unless the will clearly indicates otherwise. Patchell v. Groom, 185 Md. 10, 15, 43 A.2d 32 (1945). But whether the words of the will are given their ordinary or legal meaning,

"[e]xtrinsic evidence should not be admitted to show that the testator meant something different from what his language imports.... What he meant to say must be gathered from what he did say."

Fersinger v. Martin, 183 Md. 135, 138, 36 A.2d 716 (1944).

Looking first to the plain meaning of "personal property," Webster's New International Dictionary (1971), p. 1687, defines it as "an estate or property other than real property consisting in general of things temporary or movable including intangible property." Black's Law Dictionary (5th ed. 1979), p. 1096, defines the term to mean "all property other than real estate." Thus, there is no distinction between the ordinary and the legal meaning of "personal property," both of which encompass tangible and intangible property. Furthermore, the general rule applied consistently in our cases is that, absent some indication from the will to the contrary, bequests of "personal property" are to be construed broadly. As we stated in Cameron v. Frazer, 187 Md. 368, 50 A.2d 243 (1946):

"[T]he words 'all my personal property,' without any limiting context, may be all-inclusive; they may include personal property of every kind, tangible or intangible, goods and chattels or choses in action, owned when the will is made or thereafter acquired."

Id. at 373, 50 A.2d 243. See also Leroy v. Kirk, supra, 262 Md. at 281, 277 A.2d 611; Frick v. Frick, 82 Md. 218, 222, 33 A. 462 (1895); Dalrymple v. Gamble, 68 Md. 523, 528-29, 13 A. 156 (1888).

In Dalrymple, for example, the testator bequeathed to a certain legatee "all my personal property," worth about $100 when he executed the will. Between the time of the execution of the will and the testator's death, a brother of the testator died intestate; the testator's distributive share of his deceased brother's personal estate was worth approximately $30,000. We there held:

"[T]he terms in this will, 'all my personal property,' are sufficient to pass the testator's distributive share of his brother's estate, unless their obvious meaning, can, upon good and legal grounds be put aside or restricted, and held not to embrace this property. There is however nothing upon the face of the will to enable the court to give it any such restricted construction. The words are as comprehensive as any that could be used. He does not say 'my ranch and all my personal property thereon' nor 'all my personal property in California.' He makes no enumeration of articles, nor any bequest to any one else, so as to give the court the slightest clue or ground for relying on the rule 'ejusdem generis ' or 'noscitur a sociis.' "

Id. at 528-29, 13 A. 156.

We have, on occasion, found that the doctrines of noscitur a sociis and ejusdem generis ³ may qualify the bequest of personal property so as to render it less than all-inclusive. In Leroy v. Kirk, supra, 262 Md. at 283, 277 A.2d 611, we stated that

"[t]he maxims mean that the meaning of a word is or may be known from the accompanying words so that, under the rules, general and specific words, capable of analogous meaning, when associated together, take color from each other, so that general words are restricted to a sense analogous to less general (citation omitted)."

In Leroy, the testator bequeathed "all of my personal property, including my automobile,...