Legge v. Canty

• Decision Date: 22 February 1939
• Docket Number: 41.
• Citation: 4 A.2d 465,176 Md. 283
• Parties: LEGGE v. CANTY et al.
• Court: Maryland Court of Appeals

4 A.2d 465

176 Md. 283

LEGGE v. CANTY et al.

No. 41.

Court of Appeals of Maryland

February 22, 1939

Appeal from Circuit Court, Allegany County; William A. Huster Judge.

Petition bye George W. Legge, executor of the estate of Margaret A Sluss, deceased, against Mary Canty, William C. Sluss, and Harry G. Sluss, to construe the will. From a decree dismissing the petition, the executor appeals.

Decree reversed and remanded.

George W. Legge, of Cumberland, for appellant.

Edward J. Ryan, of Cumberland, for appellees.

Argued before BOND, C.J., and OFFUTT, PARKE, SLOAN, MITCHELL JOHNSON, and DELAPLAINE, JJ.

OFFUTT Judge.

Margaret A. Sluss, at the time of her death in December 1936, owned a house and lot known as No. 115 Allegany Street, Cumberland, Maryland, which she disposed of by will as follows:--'My real property, designated as number 115 Allegany Street, Cumberland, Maryland want retained in my estate by my executor and it is my desire that my son William C. Sluss, reside in said dwelling house as his home with his family, and that he permit and provide a room in said house for my sister Mary Canty, which shall be hers and for her use as long as she lives and after the death of my sister Mary Canty, I direct my executor to sell said real property, number 115 Allegany Street either, at private or public sale, in his discretion, and the proceeds derived from said sale shall be divided equally, share and share alike between my sons William C. and Harry G. Sluss.' On June 24, 1938, George W. Legge, the executor appointed by the will filed in the Circuit Court for Allegany County in Equity, the petition in this case, against Mary Canty, sister of the testatrix, and William C. Sluss and Harry G. Sluss, her sons and only heirs at law. In it after alleging the death of the testatrix, the probate of the will, the statement of a first Executor's Account, that William C. Sluss had moved into the property and had made a home there for Mary A. Canty where she was then residing, he further alleged that he had in his hands funds claimed by devisees and legatees under other provisions of the will, that he as executor was bound to pay taxes and insurance, on the property and provide for the upkeep thereof, and that apart from the retained funds he had no fund from which to meet those expenses and that it was necessary that the will be construed to determine whether he was authorized to sell the property 'while there is a chance that a reasonable sum of money can be realized from said sale'. He accordingly prayed the court to construe the will.

The two sons admitted the facts alleged in the petition and joined in the request for a construction of the will. Mary Canty neither admitted nor denied the facts alleged in the petition, but stated that the language of the will needed no construction and asked that it be dismissed.

Upon those pleadings testimony was taken, the parties heard, and at the conclusion of the hearing the court dismissed the petition. From that decree the executor took this appeal.

It is apparent that the language of that provision of Mrs. Sluss' will is not free from ambiguity, and that its meaning is far from clear. Under such circumstances the right of the executor to have it construed by a court of equity is well settled. For as stated in Miller on the Construction of Wills, sec. 5:--'The construction of a will is, in general, a matter only for the courts of law or equity. The orphans courts have no jurisdiction save what is conferred by statute, and are forbidden under pretext of incidental power or constructive authority to exercise any jurisdiction not expressly conferred by law; and among the powers conferred by law there is none authorizing them to determine the validity or invalidity of devises or bequests under a will.' Littig v. Hance, 81 Md. 416, 434, 32 A. 343; Pomeroy Eq.Jur. secs. 1156, 1157. It is only where the language of the will is so clear as to permit no reasonable doubt of its meaning that a court of equity will refuse to construe it. For while what is said by Pomeroy to be the weight of authority supports the doctrine that a court of equity will not assume jurisdiction for the sole purpose of construing a will, and will never exercise jurisdiction to interpret a will which deals with and disposes of purely legal estates or interests, Pomeroy Eq.Jur. Sec. 1156, in this state it is said by Miller to be 'broadly established' that a court of equity will assume jurisdiction to construe wills, and he classified it with those jurisdictions of which Pomeroy says: 'It cannot be denied that there are decisions by able courts which take another and less restricted view of the jurisdiction. According to the doctrine of these cases, the jurisdiction to construe wills is not necessarily connected with the general jurisdiction over trusts; the presence of a trust express or implied is not made a criterion of its existence nor of its proper exercise; it is regarded as arising wholly from the complicated character of provisions in a will, from the difficulty of understanding their meaning, or the doubt and uncertainty as to the rights and interests of the parties claiming under them. In short the jurisdiction to construe a will exists and is exercised whenever its terms are really difficult or doubtful, or their validity is contested, without reference to the presence or absence of any trust.' Pomeroy Eq.Jur. sec. 1157. And that classification is consistent with the decision and language in Litting v. Hance, supra, and the decision in Woods v. Fuller, 61 Md. 457, 461, although the conclusion and the opinion in that case are not in complete harmony. It may be assumed from that language that the testatrix intended (1) that the property should not be sold during the life of Mary Canty, (2) that during her life Mary Canty should have the privilege of occupying a room in it, (3) that William C. Sluss should have the privilege of using it as a home for himself and his family during the life of Mary Canty upon the condition that he permitted her, Mary Canty to occupy a room in it, and (4) that at the death of Mary Canty the executor of Margaret A. Sluss should sell it and distribute the proceeds of the sale equally between William C. Sluss and Harry G. Sluss.

The testatrix...