Kuykendall v. Devecmon

• Decision Date: 23 January 1894
• Citation: 28 A. 412,78 Md. 537
• Parties: KUYKENDALL ET AL. v. DEVECMON ET AL.
• Court: Maryland Court of Appeals

28 A. 412

78 Md. 537

KUYKENDALL ET AL. v. DEVECMON ET AL.

Court of Appeals of Maryland

January 23, 1894

Appeals from circuit court, Allegany county, in equity.

Bill by Althea L. Kuykendall and husband against J. Semmes Devecmon and others for an adjudication as to the rights of the legatees and distributees under the will of John S. Coombs deceased. From an order ratifying the report of an auditor as to the manner of distribution, plaintiffs appeal. Affirmed in part and reversed in part.

Argued before ROBINSON, C.J., and BRYAN, FOWLER, PAGE, and BOYD, JJ.

D James Blackiston and B. A. Richmond, for appellants.

J Semmes Devecmon, for appellees.

PAGE J.

1. The questions arise on these appeals from out of the distribution of the estate of John S. Coombs, whose last will was construed, and the right of parties under it determined, by this court in Devecmon v. Shaw, 70 Md. 219, 16 A 645. His daughter, Althea Louisa Coombs, who has since intermarried with Daniel F. Kuykendall, having arrived at the age of 21 years, has filed a petition praying the court to assume jurisdiction over the subject-matter of the will and the estate of her father in the hands of the executors and trustees appointed by the testator, and to further adjudicate the rights of the several legatees and distributees of his estate. Upon this petition all the parties interested answered, and the court passed an order by which it assumed jurisdiction of the estate; ordered the executors and trustees to make a full report, that a final distribution might be made; and on the 4th of August, after the trustees and executors had made their several reports, and other proceedings were had, ordered the papers to be referred to the auditor, with the instructions set out in the record. On the 28th of September, 1890, the auditor submitted his report, to the ratification of which Mr. Kuykendall and Messrs. Shaw and Devries and the Devecmons objected upon various grounds, which will be stated hereafter. By the third clause of John S. Coombs' will, he bequeathed to his daughter, Althea Louisa, the balance of United States bonds invested in his name, amounting to $29,000, viz. 15 shares of stock in the Second National Bank of Cumberland, 25 shares of stock in the National Bank of Baltimore, and also all the money deposited in his daughter's name in the following Savings Banks in Baltimore, viz. the Eutaw Savings Bank, the Central Savings Bank, the Metropolitan Savings Bank, and the Savings Bank, "subject to be defeated by the death of said Althea Louisa without leaving a child or children at the time of her death, or, in case she shall die having a child or children surviving her, by the death of such child or of all such children under the age of twenty-one years," and, in the event of such contingencies happening, this property is to pass to Mrs. Althea M. Devecmon, and to her children and grandchildren, to stand in the place of their deceased parents. 70 Md. 229, 16 A. 645. The money in the savings banks, amounting to the sum of $5,725.83, was deposited in the name of Althea Coombs while she was a minor, and she claims that it was her property at the time it was so deposited, and still is. It is treated by the auditor as part of the estate of the testator, and subject to the executory devise to Mrs. Devecmon, whereas she contends it should have been awarded to her absolutely. It is unnecessary to inquire whether the proof establishes her title to this property, because, if she claims an interest under the will, she must give full effect to its provisions, as far as she is able. It is only carrying out the plain intent of the testator that the funds in the savings banks should stand on the same footing with the other items of property mentioned in the same clause, and be subject, like them, to the executory devise to Mrs. Devecmon. "The foundation of this doctrine," said this court in Barbour v. Mitchell, 40 Md. 161, (citing from Spencer on Equity,) "is the intention of the testator, and its characteristic is that by equitable arrangement effect is given to a donation of that which is not the property of the donor. * * * The intention being assumed, the conscience of the donee is affected by the condition, (though destitute of legal validity,) not expressed, but implied, annexed to the benefit proposed to him. To accept the benefit while he declines the burden is to defraud the design of the donor." McElfresh v. Schley, 2 Gill, 181.

2. Mrs Kuykendall, who also excepts to the report, because "the sum of $6,521.28, being two-thirds of the residuum after paying debts," etc., is audited to her, "subject to the devise to Mrs. Devecmon," whereas she claims that it should have been awarded to her absolutely, free from any trust in the will, and also from the devise over to Mrs. Devecmon. The testatcr, having made certain devises and bequests, directed his executors to sell all his real and personal property not otherwise disposed of in his will, and to divide the proceeds between his wife and daughter, one-third to his wife, and two-thirds to his daughter. Mrs. Coombs renounced the will, and in consequence the specific property intended to pass to the widow under the will became subject to the power of sale vested in the executors as "part of the estate not otherwise disposed of," and an intestacy resulted "as to the one-third of the real and personal estate embraced in and operated upon by the residuary clause of the will." 70 Md. 227, 16 A. 645. The court below was of the opinion that the decree in the case in 70 Md. and 16 A. embraced the portion of the residuary fund bequeathed to the daughter, but we cannot concur with him. The decree states that the adjudication was made "for the reasons set forth in the opinion of the court filed in the...