Johns Hopkins University v. Pinckney

• Decision Date: 27 January 1881
• Citation: 55 Md. 365
• Parties: JOHNS HOPKINS UNIVERSITY, CLAUDE BAXLEY and ISAAC R. BAXLEY v. THEODORA PINCKNEY.
• Court: Maryland Court of Appeals

55 Md. 365

JOHNS HOPKINS UNIVERSITY, CLAUDE BAXLEY and ISAAC R. BAXLEY v. THEODORA PINCKNEY.

Court of Appeals of Maryland

January 27, 1881

APPEAL from the Circuit Court of Baltimore City.

This was a proceeding in equity, on the part of the appellee, to obtain a construction of the will, and codicil thereto, of Dr. H. Willis Baxley, late of the City of Baltimore, who died in that city on the 13th of March, 1876, having executed the testamentary papers in controversy. The bill prayed, that the executor of the estate might be authorized and required by the Court, to invest ten thousand dollars in some safe security, and to pay the income thereof annually to Miss Pinckney, who claimed to be entitled to receive it as legatee, as long as she might live and remain unmarried. The appellants, Claude and Isaac R. Baxley, were the only children of the testator, who survived him.

By the will the testator directs:

First. That the sum of one thousand dollars shall be paid over to the Trustees of Greenmount Cemetery, in the City of Baltimore, to be by them invested in a safe ground-rent security of said city, and the annual income thereof to be by them expended in the protection from intrusion of his cemetery lot, and for the painting, and keeping therein of suitable shrubbery and ivy.

Second. That a rough hewn granite rock of large size, with an inscription thereon, to wit, "H. Willis Baxley and Annabella Baxley, and their children," shall be prepared at the cost of his estate, and put upon the slab at present covering his tomb, and upon such other basis as may be necessary for its support; and that said rock shall have trained over it, thickly, and always, the ivy green; and that after the burial in said tomb of his son Claude, if he should so select to be with his father and mother, his Greenmount Cemetery lot shall be forever after closed to further interments.

Third. That his executors pay to his brother, J. Brown Baxley, the testator's proportion of whatever costs were incurred by the brother for the removal of the remains of his father and mother, and their children, from Clover Hill Cemetery, and their interment in his Greenmount lot; and that the sum of one thousand dollars shall be paid to his brother, J. Brown Baxley, if alive at his death, in token of his recognition of his kindly interest in his son Claude's welfare. If his brother shall not be alive when this will takes effect, then this legacy to become null and void.

Fourth. He directs that the sum of ten thousand dollars shall be set aside and invested by his executors, hereinafter named, in a safe security, and the income thereof annually to be paid to Theodora Pinckney, (niece of Judge Marion, of Skaneateles New York,) for and during her life, if she shall be and remain unmarried: at her death, or upon her marriage, the principal sum above named to become and be a part of the residue of his estate, and to be disposed of as hereinafter provided for; and that his object in giving this legacy is to show his grateful sense of the Christian sympathy in his sufferings of one met in Rome several years since, and to testify to the influence for good of her inculcation and practice of the precepts of divine truth, in strengthening his efforts to "seek the Kingdom of God and His righteousness."

Fifth. He devises and bequeaths all the rest and residue of his real and personal property of every name and nature, and wheresoever situated, to his son, Claude, if he shall be alive at the time this his will shall take effect; but if he shall be dead at that time, then, and in that case only, he devises to George H. Williams, attorney at law, and to his brother, J. Brown Baxley, both of Baltimore, and to the survivor of them, and thereafter to such trustees as may by them, or the survivor of them, be named, all the rest and residue of his real and personal property, comprehended by the beginning of this fifth clause, in trust and confidence nevertheless, for the following uses and purposes, to wit the income thereof to to be expended in the support and education of the children, or child, if but one, of his son Claude; and on their attainment to lawful age, the principal to be equally divided among them, if more than one, otherwise to be paid to the survivor of them; and if none survive then, after increasing his bequest to the Trustees of Greenmount Cemetery, to the amount of one more thousand dollars, for the protection and preservation of his cemetery lot, the above named trustees shall do with the rest and residue of the principal as to them shall seem right to my memory. In this part of the paper the testator enters into particular reasons for the disposition made by him of his property, in this clause of his will.

Finally he appoints his son, Claude Baxley, and George H. Williams attorney at law, his executors.

The codicil to this will is fully set forth in the Court's opinion, wherein the case is further stated.

The cause was argued before BOWIE, GRASON, ALVEY, ROBINSON and IRVING, J.

Charles J. M. Gwinn, for the appellant, Johns Hopkins University.

The question in the case, is whether the bequest made to Theodora Pinckney, by the testamentary writing, dated May 17th, 1873, was revoked or annulled by the codicil of February 26th, 1876. "The mere fact of making a subsequent testamentary paper does not work a total revocation of a prior one, unless the latter expressly, or in effect, revoke the former, or the two be incapable of standing together." "Though it be a maxim that no man can die with two testaments, yet any number of instruments, whatever be their relative date, or in whatever form they may be, so as they be all clearly testamentary, may be admitted to probate as together containing the last will of the deceased." "If a subsequent testamentary paper be partly inconsistent with one of earlier date, then such latter instrument will revoke the former as to those parts only where they are inconsistent." Williams on Executors, (4 th Am. Ed.,) part 1, book 2, ch. 3, sec. 2, p. 132; Lemage vs. Goodban, 1 L. R. Prob. and Div., 61; Green vs. Triber, 9 L. R. Chan. Div., 1878, p. 234.

From the principles thus stated, the conclusion is plain, that a "will and codicil are to be construed together as one instrument, and are to be reconciled as far as practicable; but if there be any conflict or repugnancy between them, the codicil, as the last indication of the testator's mind, must operate in preference to the will." Lee vs. Pindle and Wife, 12 G. & J., 305; 1 Jarman on Wills, (2 nd Am. Ed.,) 156, 158; 1 Wms. Ex'rs, (4 th Am. Ed.,) margin page 133; Baker vs. Story, 23 Weekly Reporter, 147, (1875;) Kermode vs. McDonald, 3 L. R. Ch. App., 586, 587; Bryan vs. White, 14 Jurist, 919; Sheddon vs. Goodrich, 8 Sumn. Ves., 499, Lord ELDON; Holder vs. Howell, 8 Sumn. Ves. Jr., 102, Sir WM. GRANT; Parker vs. Nickson, 9 Jurist, N. S., 451; Earl of Hardwicke vs. Douglass, 7 Cl. & F., 795; In re Daniel Low, 3 Swab. & Trist, 478; Bosley vs. Bosley, 14 Howard, 395, TANEY, C.J.; Barlow vs. Coffin, 24 Howard's Pr. Rep., 54; Larrabee vs. Larrabee, 28 Verm., 274.

There would seem to be no reason for abstaining from giving full effect, in every case, to the controlling power of a codicil, if there be any conflict or repugnancy between the codicil and the will. When the question is concerning a will only, it is an established rule "that where two clauses or gifts are irreconcilable, so that they cannot possibly stand together, the clause or gift which is posterior in local position shall prevail; the subsequent words being considered to denote a subsequent intention." 1 Jarman on Wills, 2 Am. Ed., 394; Iglehart vs. Kirwan, 10 Md., 564; Pue vs. Pue, 1 Md. Ch. Dec., 385. If a subsequent clause in a will, which is inconsistent with, or repugnant to, a prior clause, prevails over such prior clause, it would seem that the same effect ought, with greater reason, to be accorded to a codicil inconsistent with, or repugnant to, any clause in a prior will, since such codicil is evidence of a testamentary intention manifested at a later period of time.

It would seem to be settled law, moreover, in this State, that where there is a general and particular intent, apparent upon the face of a will, "the general intent, although first expressed, shall control and overrule the particular intent." Chase vs. Lockerman, 11 G. & J., 206; Jones vs. Earle, 1 Gill, 401, 402; Thompson vs. Young, 25 Md., 458; Taylor vs. Watson, 35 Md., 524. It follows, certainly, that in a case where the general intent was not only expressed subsequent to the particular intent, but was expressed at a subsequent period of time, in a codicil, in which the testator radically changed his prior testamentary dispositions, the general intent, as expressed in the codicil, ought, under the decisions in this State, to be construed as controlling and overruling the particular intent expressed in the prior will.

No inference, contrary to the application of this rule, can be deduced from the fact that the codicil, containing the expression of this general intent, republishes the will in every respect in which it does not alter it. Such words of republication were superfluous. The codicil had, of itself, the effect to republish the will, as of the date of the codicil, in respect to all parts of the will, which were not revoked by the codicil in express terms, or by a devise so entirely inconsistent with the terms of the will as to make it impossible to give effect to both. Jones vs. Earle, 1 Gill, 400; Bartholomew's Appeal, 75 Penn. State, 169; 1 Wms. on Ex'rs, (4 th Am. Ed.) margin p. 179.

It is true that the most liberal and enlarged interpretation will be given to testamentary instruments, in order to effectuate the manifest...