Martin v. Cook

• Decision Date: 23 June 1916
• Docket Number: 42.
• Citation: 98 A. 489,129 Md. 195
• Parties: MARTIN v. COOK et al.
• Court: Maryland Court of Appeals

98 A. 489

129 Md. 195

MARTIN v. COOK et al.

No. 42.

Court of Appeals of Maryland

June 23, 1916

Appeal from Orphans' Court of Baltimore City.

"To be officially reported."

Andrew A. Martin, administrator of John McKewen, deceased, filed an account and distribution of the estate, to which William C Cook and others filed exceptions. From an order sustaining the exceptions and requiring a new account, the administrator appeals. Affirmed.

Argued before BOYD, C.J., and BRISCOE, BURKE, THOMAS, URNER STOCKBRIDGE, and CONSTABLE, JJ.

S. S Field, of Baltimore, for appellant.

Benjamin L. Freeny, of Baltimore, for appellees.

CONSTABLE J.

This appeal involves the construction of the will of John McKewen who died in February, 1861. The text of the will in question is set out in full:

"First and Principally, I commit my sould into hands of Almighty God and my body to the Earth to be deacently buried at the discretion of my Executrix Hereinafter named, and after my debts and funeral expenses are paid, which my wife is to pay, I devise and bequeath to her as follows: to my wife, Ellen McKewen, two houses on the East Side of Eutaw Street Numbered 155 and 157 as long as she lives, but to have no power to sell, dispose, bequeath or encumber by mortgage or any other way whatever, the said property, and to keep paid at all times when due the Taxes and Ground Rent on said property. After all this is paid the proceeds and profits to be hers (my wife) and after her death the said property mentioned to be equally divided (the profits) between Elizabeth Martin, wife of John Martin and Catherine Isenhart, wife of John Isenhart, they to be restricted in the disposal or incumbrance of said property as my wife, and to keep at all times the taxes and ground rent paid as they severly come due, or the longest liver of the two to have said proceeds and to comply as heretofore mentioned, and after all three of their deaths the said property to be sold and equally divided between the children of John and Elizabeth Martin above mentioned and lastly, I do hereby constitute and appoint my dear wife Ellen to be sole Executrix of this my Last Will and Testament revoking and annulling all former Wills by me heretofore made, ratifying and confirming this and none other to be my Last Will and Testament."

At the time of the death of the testator, his wife, Ellen McKewen, Elizabeth Martin, and Catherine Isenhart were all living, and have died since, in the following order: The testator's wife first; then Elizabeth Martin in 1881, and Catherine Isenhart in 1915. At the time of the death of the testator, eight children of John and Elizabeth Martin were in being, and they all but one survived their parents, but at the time of the death of the surviving life tenant, all but two of the children had died. Four of the children of John and Elizabeth Martin, who died before the termination of the life estates, left issue surviving them and the surviving life tenant. After the death of Catherine Isenhart, Andrew Martin, one of the surviving sons of John and Elizabeth Martin was appointed administrator d. b. n. c. t. a. of John McKewen, deceased, and, after selling the property mentioned in the said will, filed an account in the orphans' court, by which he distributed to himself and brother, Thomas F. Martin, the whole of the net proceeds of said sale, as the parties entitled as the only surviving children of John and Elizabeth Martin at the time of the termination of the life estates in said property. Exceptions to the distribution were filed by children of a deceased child of John and Elizabeth Martin. The court sustained the exceptions, and passed an order directing the administrator to state an account in which he should distribute the net proceeds of sale to all the children of John and Elizabeth Martin, living at the time of death of John McKewen, or their legal representatives. From that order this appeal was taken.

The only question for us to determine is whether, under the provisions of this will, the estate vested in the children of John and Elizabeth Martin at the death of John McKewen, or was the time of vesting deferred until the time at which the life estates terminated? Were the individuals answering to the description, "children of John and Elizabeth Martin," to be ascertained at the time of the testator's death, or at the time when the will directed the sale to be made?

From the long line of decisions in this state, in which certain principles relative to the construction of wills have been announced and reiterated, it must be regarded as settled that those principles, where applicable, must control. It cannot be questioned but that the paramount aim and object of all construction of wills is to arrive at the intention of the testator as ascertained from the words he has used to express his intention, and, in case of doubt or ambiguity, the situation and surrounding circumstances. It is the absolute right of a testator to fix, as he sees fit, within the period allowed by law, the time for the vesting of the different estates created by his will. But, however, the law unquestionably favors the early vesting of estates, and the rule is that a testator must indicate with reasonable certainty his desire that the time for vesting be deferred or the law will...