Keyser v. Calvary Brethren Church

• Decision Date: 10 March 1949
• Docket Number: 111.
• Parties: KEYSER et al. v. CALVARY BRETHREN CHURCH.
• Court: Maryland Court of Appeals

64 A.2d 748

192 Md. 520

KEYSER et al. v. CALVARY BRETHREN CHURCH.

No. 111.

Court of Appeals of Maryland

March 10, 1949

Appeal from Circuit Court, Washington County; Joseph D. Mish, Judge.

Proceeding by executor of the estate of Martha J. Uhler, deceased, for construction of a portion of decedent's will. From a decree directing distribution of bequest in question to The Calvary Brethren Church, Ida Keyser and others, residuary legatees, appeal.

Decree affirmed.

Edward Oswald, Jr., of Hagerstown, for appellants.

Martin V. B. Bostetter, of Hagerstown, for appellee.

Before MARBURY, C.J., and DELAPLAINE, COLLINS, GRASON, HENDERSON and MARKELL, JJ.

MARBURY Chief Judge.

This is an appeal from a decree of the Circuit Court for Washington County, construing Paragraph 4 of the will of Martha J. Uhler, and directing the executor of her estate to distribute to the appellee the bequest of $1,000 contained in that paragraph. The case was brought by the executor, and the residuary legatees, who were parties defendant below, are the appellants here.

The testatrix died on May 14, 1942. By the 4th paragraph of her will, which is the one here in question, she made the following bequest: '4th. I hereby give, devise and bequeath unto The Calvary Brethren Corbett Street Chapel (Rev. A. M. Dixon Pastor) the sum of one thousand ($1000.00) Dollars for the building of a Church to be held in trust for a period of five years, if they do not build within five years then this returns to my estate.'

The residue of the estate was given to the three appellants.

The Calvary Brethren Church (the present name of the legatee) purchased a lot of ground by contract of sale dated June 11 1947, securing the deed on July 2, 1947, and started the construction of a church on this lot by the excavation of the basement on July 25, 1947. A building permit was applied for an August 4, 1947, and the permit was granted on August 14 1947. In December, 1947, the congregation began meeting in the basement. The building has not been completed. All of this was done more than five years after the death of the testatrix.

The testimony of the Rev. Mr. Dixon, pastor of the church, showed that the church had bought three other lots on July 12, 1943 within the five years, upon which it had intended to build a church. Subsequently the present lots upon which the church was built were bought, the church authorities thinking them a more desirable location, and the other lots were sold. The United States Government had restricted the use of building materials on April 9, 1942, and those restrictions were not lifted until June 30, 1947. Mr. Russell B. Keener, a contractor of Hagerstown, was consulted by the building committee of the church with reference to building on the three original lots, some time in the winter of 1946-7. In January of 1947, Mr. Keener testified that he consulted the Federal Housing Administration's office, and was advised that a permit would not be granted, until materials were more available. No formal application was made, but it seems to have been clear that steel and lumber, which were necessary for the construction, could not have been gotten during the period between April, 1942 and June, 1947, without a priority granted by the War Production Board. No application was made for such priority, but Mr. Keener had made an application for another church during the period in question, this being for some interior decoration. This application had been rejected at first, but was subsequently approved, because some of the materials were located in the town, and were given for the purpose. The work done on the other church did not require the use of any steel.

We have first to determine whether the condition attached to the bequest in the 4th paragraph of the will is a condition precedent or a condition subsequent. That depends, of course upon the intention of the testator, but if a gift is first given and then a condition is added by later words, such condition is generally held to be one of termination and...