Hammett v. Hammett

• Decision Date: 24 November 1875
• Parties: JESSE F. HAMMETT v. JAMES R. HAMMETT, and C. B. SLINGLUFF and J. A. C. BOND, Trustees.
• Court: Maryland Court of Appeals

43 Md. 307

JESSE F. HAMMETT v. JAMES R. HAMMETT, and C. B. SLINGLUFF and J. A. C. BOND, Trustees.

Court of Appeals of Maryland

November 24, 1875

APPEAL from the Circuit Court for Baltimore County, in Equity.

The appeal in this case involves the construction of the will of Robert H. Hammett, made and admitted to probate in the year 1850, and the terms of which are set forth in the opinion of this Court. The widow of the testator married again. His only children, Jesse F. and James R., are of age, and are married and have children. The bill in this case, was filed by James R. Hammett against his brother Jesse F. Hammett, to procure a sale of certain real estate devised under said will, for the purpose of partition. A decree for a sale was passed in the Court below, and trustees were appointed to make the sale the property was sold as a fee-simple estate to Jesse F Hammett.

Subsequently the purchaser with a view of determining what interest he held, doubts in relation thereto having been suggested, filed exceptions to the sale, on the ground that the children of Robert H. Hammett did not acquire a fee-simple title under their father's will. The Court, by consent of counsel, passed an order overruling these exceptions and ratifying the sale. From this order the present appeal was taken.

The cause was submitted to BARTOL, C.J., STEWART, MILLER, ALVEY and ROBINSON, J.

Fielder C. Slingluff, for the appellant.

James A. C. Bond and J. Alexander Preston, for the appellees.

STEWART J., delivered the opinion of the Court.

This case involves the construction of the following clauses in the will of Robert H. Hammett:

"I desire that my half of all the property, real and personal, held jointly by my brother Jesse and myself, shall be for the use of my wife during the time she shall remain my widow, for the support of herself and children."

"If she should marry again, I devise the same to my two children equally, and should one of them die, the property to go to the survivor, and in the event of the decease of both, then the property to go to my brother Jesse and his children, or the next of kin."

According to the conceded facts, his wife did marry again, and the two children have survived that event, both are of age and have children. There can be no question that the intention of the testator to be derived from a consideration of all the provisions of the will, must govern its construction, and be carried into effect, if he has used language sufficiently intelligible to enable the Court to comprehend his purpose.

The testator does not undertake in the first clause, to dispose of the fee in the property.

He merely gives the use of it to his widow, for the support of herself and children, so long as she remains such.

Without other provision, his children would have taken the property in fee by inheritance, after the determination of the limited estate given to his wife.

It is to be presumed, the testator was aware that such would have been the effect, and that he so intended, in case his wife never married, but continued a widow.

The language of the will should not be construed to impair the legal rights of the children, unless it can be clearly deduced therefrom, that such was the intention of the testator.

The testator obviously had in his contemplation, when he made his will, that his wife might not remain his widow, and very clearly provides that in the event of her marriage, her rights in the property should cease, and the children should forthwith take the property equally.

The words used by the testator, "all the property, real and personal," are sufficient as the law then stood, to dispose of all his interest in the property. Under that provision his children would take the property after the determination of his wife's estate by her marriage, which they would have inherited at her death, if she had remained a widow, under the operation of the former provision.

From both provisions, it seems manifest the testator designed to give the property to his children absolutely, if in the contingency provided for in his will, one or both of them as the case might be, should then be...