Gardner v. McNeal

• Decision Date: 06 December 1911
• Citation: 82 A. 988,117 Md. 27
• Parties: GARDNER et al. v. McNEAL et al. McNEAL et al. v. GARDNER et al.
• Court: Maryland Court of Appeals

82 A. 988

117 Md. 27

GARDNER et al. v. McNEAL et al.

McNEAL et al. v. GARDNER et al.

Court of Appeals of Maryland

December 6, 1911

Appeal from Circuit Court of Baltimore City; Chas. W. Henisler Judge.

Actions by Charles R. Gardner and others against Joshua V. McNeal and others and by Joshua V. McNeal and others against Charles R Gardner and others. From decrees of the circuit court of Baltimore City, Gardner and others appeal. Decree affirmed in part, and reversed in part, and the case remanded.

Argued before BOYD, C.J., and BRISCOE, PEARCE, BURKE, THOMAS, URNER and STOCKBRIDGE, JJ.

Rufus W. Applegarth and Charles T. Reifsnider, for Charles R. Gardner and others.

Washington Bowie, Jr. (Thomas A. Whelan, on the brief), for Joshua V. McNeal and others.

STOCKBRIDGE J.

On July 26, 1899, Ellen McNeal Gardner executed her will in accordance with the requirements of the statute, in the following language: "I, Ellen McNeal Gardner, of the city, county and state of New York, being of good and sound mind, do hereby make, declare and publish this to be my last will and testament, revoking any former wills made by me, I hereby give, devise and bequeath unto my husband, William Rodgers Gardner, all the property, of every description whatsoever, both real and personal, of which I may be possessed at the time of my death, or which I would hereafter have become possessed." In February, 1900, William Rodgers Gardner, the sole legatee under the foregoing will died, and on June 6, 1905, Mrs. Gardner the testatrix before named, executed in the manner required by law for the execution of wills the following instrument: "Washington, D. C., June 6th, 1905. I, Ellen Gardner, devise and bequeath to my brother, J. V. McNeal, my railroad stock and all money remaining in bank excepting the sum of three hundred dollars, which I leave to Mary Finnegan. My pearl necklace to my niece Marie McNeal and the pearl pin and earrings to my niece Stella McNeal, my diamond ring and earrings to the church (St. Ignatius), my bureau silver to my friend Mary A. Fenwick." After the death of Mrs. Gardner, which took place in July, 1910, the instrument executed by her in 1905 was found among her papers, presented to the orphans' court as the last will of the deceased, and admitted to probate on October 4, 1910. Subsequently the will which she had executed in 1899 was discovered, and upon its production and proof of its execution was also admitted to probate by the orphans' court of Baltimore city on December 10, 1910, and by its order on that date the orphans' court directed "that the said two instruments of writing shall be construed together as the last will and testament of the said deceased."

This presents, as the first question for determination in this case, the effect of the instrument executed by the testatrix in 1905. It did not in terms revoke the will of 1899, and, in the absence of any expressed purpose of revocation, is it to be given the legal effect of a revocation? The statute in regard to revocation of wills (Code, art. 93, § 318) provides, in substance, that: "No will *** shall be revocable otherwise than by some other will or codicil in writing, or other writing declaring the same *** unless the same be altered by some other will or codicil in writing or other writing of the devisor signed as hereinbefore said in the presence of two or more witnesses declaring the same." It is true the instrument executed in 1905, with all the formal requisites to constitute it a will under all the requirements of the law, did not in terms revoke the will of 1899, but this is not necessary. A will may be just as effectively revoked by an inconsistent disposition of previously devised property. 30 Am. & Eng. Ency. (2d Ed.) p. 624; Colvin v. Warford, 20 Md. 357; Hopkins Un. v. Pinckney, 55 Md., 365; Joynes v. Hamilton, 98 Md. 665, 57 A. 25. By the will of 1899 Mrs. Gardner had given her entire estate of every description to her husband. By the second instrument she gave all her railroad stock and all money in bank except $300 (which was bequeathed to Mary Finnegan) to her brother, and certain articles of personal jewelry to named friends. It appears from the agreed statement of facts that this comprised her entire estate at the time, with the exception of a few pieces of furniture and some minor articles of personal adornment. The second paper evidently intended to make a complete disposition of her property no less than the first, and, the legatees being entirely different persons, the inconsistency was as great as was possible. But one conclusion can be reached, the will of 1899 was revoked by that of 1905, and was therefore without any force or effect at the time of her death, and the learned judge below was correct in his decree to this effect.

The proceedings in the case make necessary a consideration of the various legacies contained in the will of 1905.

The agreed statement shows that the articles given by the will to Marie McNeal had been actually given to her before the death of the testatrix, and therefore constituted no part of her estate at her death, and, so far as the legacy was concerned, it had been anticipated by the testatrix in a manner which had the same effect as an ademption. Gallagher v. Martin, 102 Md. 115, 62 A. 247.

The legacies to Stella McNeal and Mary A. Fenwick were specific legacies, and no reason exists why the articles given these ladies should not be delivered to them by the administrators and the circuit court was correct in so directing.

The legacy of "my diamond rings and earrings to the church (St. Ignatius)," presents a different question. So far as the articles are concerned the legacy is specific, but St Ignatius Church is not a body corporate. But the agreed statement of facts embodies the following: "That St. Ignatius Church mentioned in said will of June 6, 1905, is situated at the corner of Calvert and Madison streets, Baltimore, and adjoins and communicates on the south with and is physically a part of Loyola College building, which said college building occupies (including said church) the entire block on the west side of Calvert street from Madison street to Monument street; that the rector or president of said college is by virtue of his office the rector or pastor of said church, the priests attached to said college being also attached to said church, and that said church and college are integral parts of the same management; that the title to said property embracing the church and college building is vested in the Associated Professors of Loyola College, in the city of Baltimore, a corporation duly incorporated under the laws of Maryland, and that by an act of the General Assembly of Maryland (Laws of 1888, chapter 208) said corporation was duly authorized to take and receive bequests on behalf of said church." The act of 1888 referred to was one to enlarge the powers of "the Associated Professors of Loyola College in the City of Baltimore," and as a portion of said enlarged powers the corporation was specifically authorized for the purposes of said church to take, hold, and receive any gift, grant, devise, or bequest of any property, real, personal, and mixed, as fully and to the same extent as it is authorized to do as an educational institution. This legacy, therefore, presents clearly the case of misnomer of a legatee, and a mere misnomer will not operate to defeat the intent of a testatrix, where the beneficiary of the intended bounty is perfectly certain. This legacy is analogous to the one contained in the will of Melissa Baker to "the Woman's College located at the City of Lynchburg," which was held to be a valid bequest to "the trustees of the Randolph-Macon College," in Trinity Church v. Baker, 91 Md. 539,...