Hemsley v. McKim
| Decision Date | 17 January 1913 |
| Citation | 87 A. 506,119 Md. 431 |
| Parties | HEMSLEY et al. v. McKIM et al. McKIM v. SAME. HEMSLEY v. SAME. |
| Court | Maryland Court of Appeals |
Appeals from Circuit Court No. 2 of Baltimore City; Henry D. Harland Judge.
"To be officially reported."
Action by Walter Hemsley individually and with another, as executors of the will of Mary Hemsley Sterett, against Oswald T Hemsley and others for the construction of such will and the settlement of the estate. From the decree, Oswald T. Hemsley and others, S. Sterett McKim, and Walter Hemsley, bring separate appeals. Affirmed.
Argued before BOYD, C.J., and BRISCOE, BURKE, THOMAS, PATTISON URNER, and STOCKBRIDGE, JJ.
Eli Frank, C. Baker Clotworthy, J. Southgate Lemmon, and Allan McLane, all of Baltimore, for appellants. German H. H. Emory, of Baltimore, for appellees.
Mrs. Mary Hemsley Sterett, widow of Samuel Sterett, died on September 10, 1911, leaving a last will and testament, which was executed on January 16, 1897, by which she left all her estate to her executors, whom she directed by the first clause to pay her just debts, funeral expenses, and costs of the administration, and to erect a tombstone over her grave, and by the second clause she directed them to divide the residue of her estate, as therein stated, between those we will designate as the McKims and the Hemsleys. Walter Hemsley, individually, and he and John Hemsley Johnson, executors of the will of Mrs. Sterett, filed a bill in equity in circuit court No. 2 of Baltimore city against those interested in the will, and asked that the court would assume jurisdiction over the further administration and settlement of the estate, construe the will, and direct and protect the executors in the discharge of their duties. That court assumed jurisdiction and determined a number of questions which are the subjects of these three appeals, the first of which was taken by the Hemsleys, the second by S. Sterett McKim, and the third by Walter Hemsley, one of the plaintiffs. We will consider the various questions in the order they were passed on by the lower court.
1. The second clause of the will gives rise to the controversy over the construction of the will. It is not divided into paragraphs, but is printed in the record as one paragraph. For convenience of reference, however, and to emphasize certain portions we will divide it, will italicize parts of it, and will insert in brackets the numbers which do not appear in the will. It is as follows:
The important question raised as to the construction of the above is whether by the will the McKims only took the interest of the testatrix in the St. Paul street property and in the coal companies and mines, as the Hemsleys contend, or whether they took one-half of the residue of the estate, after the payment of debts, etc., provided for in the first clause, as the McKims claim. The question becomes important because the St. Paul street property and the interest in the coal properties are together worth probably less than a fourth of the residue of the estate. Samuel Sterett, the husband of the testatrix, left all of his estate to her by his will admitted to probate in 1879, and he was a relative of the McKims, while Mrs. Sterett was a Hemsley. No shares in coal companies were found by the executors, but the testatrix had an interest in coal land in Schuylkill county.
In our judgment the learned judge below, who filed an able and clear opinion indicating the reasons for the conclusions reached by him, was correct in holding that it was the intention of the testatrix to leave the McKims one half and the Hemsleys the other half of the residue of her estate, and that she did not intend to confine the McKim interest to the St. Paul street property and the coal companies. She distinctly empowered and directed her executors to divide the residue of her estate into two equal parts --not simply into two parts. If she had intended to only leave the McKims the St. Paul street and coal properties, the usual, natural, and simple way would have been to have said, "I give, devise and bequeath" those properties as described in the will to those named, in the proportions they were to take them. But she not only did not do that, but, after directing the residue of her estate (which consisted of everything left after the payment of her just debts, funeral expenses, etc.) to be divided by her executors into two equal parts, she simply said: "In the first part they are to put my interest in my house and lot," etc. But that is not all, for after referring to the second part she said: "The first mentioned of the two above described equal parts of the residue of my estate, my executors are to assign, pay over, or convey as follows"--thus again speaking of the two equal parts. Then when she had provided for the McKims and was about to make provision for the Hemsleys, she said: " The remaining one-half of my estate constituted as above described, my executors will pay, assign and convey as follows" to the Hemsleys.
But as paragraph 3, which immediately follows 2 reads, "Into the second part they are to put all the balance, of my estate and property," except the household furniture, etc., "all of which they are to divide equally among my four brothers and my nieces," it is contended that the testatrix thus left to the Hemsleys all of her estate and property excepting the St. Paul street house and lot and her interest in the coal properties, after payment of the debts, etc. But such construction would ignore and render meaningless not only the express directions to divide the residue of the estate into two equal parts, but the distinctly expressed intention of the testatrix, when she named the beneficiaries of the first part, where she said, "The first mentioned of the two above described equal parts." It seems clear to us that she only meant by paragraph 3 to say all of the balance of her estate and property which remained after taking out for the first part the St. Paul street property and the coal properties, and so much more as was necessary to carry out her intention that there should be two equal parts, and that she used the expression, which it must be admitted is an awkward one, in connection with the exception following; that is to say, the household furniture, etc., which she gave absolutely to the six Hemsleys mentioned. There is much more reason for holding that the household furniture, silverware, and articles of personal use were to be regarded as part of the second part in the division of the residue, but as those articles were distributed in the account passed by the orphans' court of Baltimore before this bill was filed, and that account has not been disturbed, we will not discuss that question further, but will sustain the decree of the lower court in regard to this branch of the case.
We do not think that the cases cited by the appellants (Cole, Executor, v. Ensor, 3 Md. 446; Douglas v. Blackford, 7 Md. 8; Mims v. Amstrong, 31 Md. 87, 1 Am. Rep. 22; Zittle v. Weller, 63 Md. 190; Needy v. Middlekauff, 102 Md. 181, 62 A. 159; and Cochrane v. Harris, 118 Md. 295, 84 A. 499) are in any way in conflict with that conclusion. When we read this will in the light of the circumstances in which the testatrix was placed, we are convinced that her intention was to leave one half of her estate to the McKims and the other half to the Hemsleys, and there is nothing in any of the authorities cited to prevent her intention being carried out. The general rule in the construction of wills is that, "where there is a general and particular intent, apparent upon the face, the general intent, although first expressed, shall control and overrule the particular, if there be a conflict between them." Chase v. Lockerman, 11 Gill & J. 185, 35 Am. Dec. 277, Thompson v. Young, 25 Md. 450, and Taylor v. Watson, 35 Md. 519. In this will, as we have seen, the general intent that the two parts should be equal was not only expressed in the first part of the will, but was repeated after what is claimed to be a particular intent was indicated, thus removing, as it seems to us, any possible doubt of the intention of the testatrix.
2. the next question to be determined is whether the devise or legacy to Hollins McKim lapsed by reason of chapter 37 of the act ...
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