Jones v. Holloway

• Decision Date: 23 March 1944
• Docket Number: 17.
• Parties: JONES et al. v. HOLLOWAY et al.
• Court: Maryland Court of Appeals

36 A.2d 551

183 Md. 40

JONES et al. v. HOLLOWAY et al.

No. 17.

Court of Appeals of Maryland

March 23, 1944

Appeal from Circuit Court, Wicomico County; Levin C. Bailey, Chief Judge.

Proceedings in the matter of the estate of Manlius K. Morris, deceased between Rosena C. Jones and another, executors of decedent's last will and testament, and Wilsie C Holloway and others for construction of the will. From a decree construing the will and the first and second codicils executors appeal.

Affirmed.

Lewis C. Merryman, of Salisbury (Taylor & Taylor, of Salisbury, on the brief), for appellants.

J. Edgar Harvey and William W. Travers, of Salisbury (Harvey & Cropper and Woodcock, Webb, Bounds & Travers, all of Salisbury, on the brief), for appellees.

Before SLOAN, C.J., and DELAPLAINE, COLLINS, MARBURY, and MELVIN, JJ.

DELAPLAINE Judge.

Manlius K. Morris, of Wicomico County, Maryland, died in 1941 leaving a will and three codicils. His executors, Rosena C. Jones and Willis Morris, have brought this appeal from a decree construing the will and the first and second codicils.

First, we will consider the devise of the home on Ocean City Boulevard. In the will, made in 1931, the testator gave to his daughter, Wilsie, a life estate in the 'bungalow home, * * * which consists of about five and a half acres of land, and the filling station situate thereon.' He also bequeathed to her $5,000, but, if necessary on account of her mental condition, to be held in trust for her use during her lifetime, any surplus remaining thereafter to revert to the residue of his estate. His wife died in 1932, and his daughter became incurably insane. In the first codicil, made in 1933, he revoked the devise of the 'brick bungalow home,' and added it to the residue; but in addition to reaffirming the bequest of $5,000, he directed his executors to use enough of his estate to provide adequately for his daughter's care and maintenance. In the second codicil, made in 1936, the testator, having married again in 1933, withdrew the 'brick bungalow home' from the residue, and devised it to his wife, Stella R. Morris, for life.

After making his will the testator erected a weatherboard shop between the bungalow on one side of the property and the filling station on the other. The executors contend (1) that the testator, by making a drain between the bungalow and the shop and planting a row of evergreens along the ditch, divided the property into separate parts; and (2) that the first codicil revoked the devise only as to the land appurtenant to the dwelling, and did not revoke it as to the land appurtenant to the shop and filling station. The object of testamentary construction is to ascertain the intention of the testator from the language of his will, read in the light of the surrounding circumstances at the time it was made, and to give full effect to it unless it is contrary to some established rule of law. West v. Sellmayer, 150 Md. 478, 133 A. 333; Gent v. Kelbaugh, 179 Md. 343, 18 A.2d 595; Robinson v. Mercantile Trust Co., 180 Md. 336, 24 A.2d 299, 138 A.L.R. 1427. The Court should consider the situation of the testator and his relations with the recipients of his bounty in connection with the language of the will, in order to be enlightened as to his motives and intention in making the will. Henderson v. Henderson, 64 Md. 185, 1 A. 72; Childs' Estate v. Hoagland, Md., 30 A.2d 766. It naturally follows that the context of a will and the surrounding circumstances at the time it was made may be considered in determining the amount of land that passes under a devise of a house. In accordance with the ancient principle of the common law that a house includes the curtilage surrounding it, it is held that a devise of a dwelling house, by any description sufficiently certain to afford the means of its identification, passes title not only to the land covered by the house but any adjacent land which was used by the testator in connection with it and which is necessary for its reasonable use and enjoyment, in the absence of definite expression of intention to the contrary. Gilbert v. McCreary, 87 W.Va. 56, 104 S.E. 273, 12 A.L.R. 1172; 3 Page on Wills, Lifetime Edition, § 959; 1 Underhill, Law of Wills, § 302.

In a case in Massachusetts, where a husband left to his widow the use of the 'house in which we now live,' but it did not appear whether a stable in the rear of the house was so connected with it as to pass under the will, Justice Holmes observed: 'The mode of use in the testator's lifetime does not necessarily establish that the stable is included in the words * * *.' Bridge v. Bridge, 146 Mass. 373, 15 N.E. 899, 902. But it is not overlooked that the word 'home' has a much broader meaning than 'house.' Willett v. Carroll, 13 Md. 459, 468. Ordinarily, the devise of a home includes not only the dwelling house, but the entire residence estate. Chase National Bank v. Deichmiller, 107 N.J.Eq. 379, 152 A. 697. In determining whether certain appurtenances pass with a home under a devise, the use to which they were put in the testator's lifetime are considered important circumstances. Usually the person to whom a home is devised can claim all appurtenances which were customarily enjoyed by the occupant and which tend to make it a convenient and agreeable place of abode or business. If the devisee himself lived there and enjoyed certain appurtenances, then the inference is especially strong that the testator intended him to continue to enjoy those appurtenances. 2 Jarman on Wills, 7th Ed., 1261, 1262. We do not believe the evidence as to the ditch and evergreens is sufficient to prove that the testator intended to divide his property into separate parts. Indeed, such a division of the property might prove to be undesirable, if not detrimental. The testator's widow explained that her husband built the shop at her request, and that he planted the evergreens merely for the purpose of beautifying their home. Furthermore, the testator has made ample provision for the care and maintenance of his daughter for the rest of her life. Carrying out his wishes, the Court ordered the executors to set aside $5,000 for her support in addition to the $5,000 bequeathed by the will. No party to this proceeding has expressed any doubt that the total trust fund of $10,000 is ample for its purpose, as the charge for keeping the patient at Springfield State Hospital is only $360 a year. The executors concede that they have no objection to the allowance, if this Court decides that the daughter has no interest in the real estate. We cannot believe that the testator intended to give his widow only the house, thereby depriving her of the buildings which would help to provide for her support, especially in view of the fact that he has made ample provision for his daughter's maintenance.

If there were any doubt in this case, it would be removed by the fact that the testator gave a complete description in his will of what his home consisted. We think it was unnecessary for him to repeat the entire description in the codicils. Chief Judge Alvey, in construing the will and codicil of Governor Lloyd, declared the established rule in this State...