Straus v. Rost

• Decision Date: 23 June 1887
• Citation: 10 A. 74,67 Md. 465
• Parties: STRAUS v. ROST, BY HIS NEXT FRIEND.
• Court: Maryland Court of Appeals

10 A. 74

67 Md. 465

STRAUS v. ROST, BY HIS NEXT FRIEND.

Court of Appeals of Maryland

June 23, 1887

Appeal from circuit court, Baltimore city.

STONE J., dissenting.

E O. Hinkley, for appellant.

J H. Dawson and J. W. Leakim, for appellee.

MILLER J.

This appeal presents two questions, one of which depends upon the construction of the will of George Rost. The testator died in December, 1871, and, after providing for the payment of his debts and funeral expenses, the whole of his will is as follows: "I devise and bequeath unto my beloved wife Sophia, so long as she remains my widow, and if she does not marry again, then for and during the term of her natural life, all the property of every nature and kind, whether real, personal, or mixed, and inclusive of all claims, whether legal or equitable, which I now have and possess, or which I may have, possess, or be in any manner entitled to at the time of my death. But if she does marry again, then, immediately upon her second marriage, I give, devise, and bequeath to her such part of my estate only as she would have been entitled to under the laws of the state of Maryland had I died intestate; and the residue of my estate I give, devise, and bequeath absolutely to all my children, to be equally divided between them, share and share alike, the issue or descendants of any deceased child or children to take per stirpes, and not per capita, the share such child or children would have respectively taken had such child or children survived. But if she should not marry again, then I give, devise, and bequeath absolutely, upon her death, all my estate and property of every nature and kind to all my children, to be equally divided between them, share and share alike, the issue or descendants of any deceased child or children to take per stirpes, and not per capita, the share such child or children would have respectively taken had such child or children survived."

The will was executed about eight months before he died, and at the time of his death the testator left surviving him five children; four sons and one daughter. The daughter died a few weeks after her father, an infant, intestate and unmarried. One of the sons, August, died in 1877, leaving the appellee his only child and heir at law, who is now about 19 years of age. The widow married a second time in April, 1881. Upon this state of facts the question arises whether, upon this second marriage of the widow, the appellee took, by virtue of the will, the share of the property which would have gone to his father in case he had survived that event, or whether this share vested absolutely in the father upon the death of the testator, and therefore became subject to an incumbrance which the father had placed upon it in his life-time. In other words, is the survivorship mentioned in this will to be referred to the death of the testator, or to the second marriage of his widow?

Cases are numerous in which this subject has been discussed and adjudicated with reference to particular wills, the intention of the testator in each case being what the court endeavors to ascertain. The law no doubt favors the vesting of estates and as between a vested and contingent estate the intent to make it the latter must be expressed in terms so plain as to leave no room for construction. Tayloe v. Mosher, 29 Md. 443. So, again, as a general rule, the courts will, in the absence of plain expressions, or an intent plainly inferable from the terms of the will, adopt the earliest time for the vesting, where there is more than one period mentioned. It is a question of intention, and the testator has ample power to fix the period of vesting to suit himself, (always within the time the rule of law fixes;) but he must indicate his wish with reasonable certainty, for if he does not the law will presume he intended the earliest time. Crisp v. Crisp, 61 Md. 152. Now, applying these general rules to a case like this, it may be taken as an established rule of law that where there is simply a bequest to A., and in case of his death, or if he die, to B., if A. survives the testator he will take absolutely. 3 Jarm. Wills, 606. But although, in case of an immediate gift, it is generally true that a bequest over in the event of the death of the preceding legatee refers to that event occurring in the life-time of the testator, yet this construction is only made ex necessitate rei from the absence of any other period to which the words can be deferred, as the testator is not supposed to contemplate the event of himself surviving the objects of his bounty; and consequently, where there is another point of time to which such dying may be referred, (as obviously is the case where the bequest is to take effect in possession at a period subsequent to the testator's decease,) the words in question are considered as extending to the event of the legatee dying in the interval between the testator's decease and the period of vesting in possession. 3 Jarm. Wills, 611. In our opinion, the present case falls within the rule thus laid down by Jarman, and which we have approved in the recent case of Engel v. State, 65 Md. 539, 5 A. 249. The testator gave all his property to his wife during...