Weatherly v. Mister

• Decision Date: 03 March 1874
• Citation: 39 Md. 620
• Parties: JOSEPH WEATHERLY and RHODA WEATHERLY v. SUSAN MISTER, widow, BEVERLY W. MISTER, EXCR. and MARY A. MISTER.
• Court: Maryland Court of Appeals

39 Md. 620

JOSEPH WEATHERLY and RHODA WEATHERLY v. SUSAN MISTER, widow, BEVERLY W. MISTER, EXCR. and MARY A. MISTER.

Court of Appeals of Maryland

March 3, 1874

APPEAL from the Circuit Court of Baltimore City.

The facts are stated in the opinion of the Court.

The cause was argued before BARTOL, C.J., STEWART, GRASON, MILLER and ROBINSON, J.

John H. Handy and Isaac D. Jones, for the appellants.

The only point in the case is: "Does Rhoda A. Weatherly, by the seventh item of the will, take an absolute estate in one-third of the rest and residue, or an estate for life to her sole and separate use, and with limitations over?"

[Counsel here made an elaborate examination of the provisions of the will, and contended that it did not show a general intention of the testator to subject to one and the same limitation every thing that he gave his daughter, Rhoda. Rep.]

The clause as punctuated makes sense, is not in conflict with any other provision of the will, and in fact has no connection with any other part of it. The plain grammatical construction of the words of the will give Rhoda an absolute estate in one-third of the residue; the contingency provided for her having a different estate not having occurred. The authorities are full that if the will is clear, expressing a definite intent, rules of construction are never invoked. Fenny vs. Ewestace, 4 M. & S., 58; Doe vs. Wright, 8 Tenn., 64; Hopewell vs Ackland, 1 Salk., 239; 14 th Rule of Powell, 2 Wm's Ex., 972. And the ordinary sense of the words must be taken. 1 Vesey, 447 note 2, (Summer's Ed.); 2 Roper on Legacies, 322, Rules 7 and 8; 2 Wm's Ex., 972-979, 1085; Powell's Rules, 10, 13, 14, 16; 1 Redfield on Wills, 326, 430, 473, note 4, Jarman's Rule 12.

Neither the words nor their position are to be changed if the meaning is clear; and even in cases of doubt the exact words are to be adhered to, and are not to be departed from to conform to any supposed preference or intent of the testator or be controlled by any parol testimony in the case. Doe vs. Sloggett, 5 Exch., 107; Doe, ex dem Crutchfield vs. Pearce, 1 Price, 353; 1 Red. on Wills, 434-5-6, Plac. 21 and notes.

Transposition is admissible only to clear up a doubt, not to create it. 1 Red. on Wills, 430-2, Plac. 15 and note 15; 1 Red. on Wills, 435-6, note 30, and cases cited; Hoxie vs. Hoxie, 7 Paige, 187, 192; Maingault vs. Deas, 1 Bailey, Eq., 208.

Punctuation may not be regarded when rejection of existing punctuation will bring out and render clear the meaning of the instrument. It will not be disregarded to raise an ambiguity. 1 Red. on Wills, 433-4, Plac. 5 and note 22.

General intent. Rule 2, 1 Red. on Wills, 433-4, and cases cited in note 18.

It is the Court's "duty to give effect to all the words without rejecting or controlling any of them, if it can be done by a reasonable construction, not inconsistent with the manifest intention of the testator." This rule is stated with this commendation by Redfield, "there is, perhaps, no general form of stating this cardinal rule of construction, which is less exceptionable." 1 Red. on Wills, 434-5, Plac. 19, note 28.

The above propositions and authorities fully sustain the position we have taken, that before the particular intent can be controlled by a general intention, if such existed in the will, it must appear to be in conflict with it. In this case it is not "impracticable" to carry out the bequests of this will, as claimed by the appellants, and it is the duty of the Court to construe the will, that each and every intention may be gratified. In arriving at the particular intention of the clause, the Court may recur to several keys--

1st. If the paper in its construction gives evidence that it is written by a skilled scribe, that may be considered in giving the construction. 1 Red. on Wills, 435-6, Plac. 33.

2d. The general mode of framing the devises in the particular will by such skilled draughtsman, may be looked at.

In this case it appears that the will was drawn by a lawyer, familiar with legal language, and a scholar familiar with the structure of the language in which the paper is written. Full effect must be given then, to these facts--he must be presumed to have intentionally used the particular language, and so punctuated it, as to give the effect under grammatical rules of what he meant to say.

[Counsel here contended from an examination of the will, that the construction claimed to be correct by the appellants would effectuate the special intention of the clause. Rep.]

An estate devised by plain, positive and unambiguous language, cannot be divested except by language as positive and plain. And, if the language supposed to divest it will apply to some other estate, to which, by its position in the structure of the devise, it would seem naturally and grammatically to apply without doing any violence to the rules of construction of wills, it must be so held to apply.

The interest first given will not be taken away by tacitum or dubium, possibile or probabile, it must be per certum et expressum. Hence, the estate given to Rhoda by the first clause, cannot be divested by speculations or remodeling the clause to suit the views of the appellees. Cole vs. Wade, 16 Ves., 45; Thornhill vs. Hall, 2 Clark & Fin., 36; Thornhill vs. Hall, 8 Bligh, N. S., 88; Collett vs. Lawrence, 1 Ves. Jr., 269; Jones vs. Colbeck, 8 Ves., 40; Harwood vs. Goodright, Cowper, 90; Arcularius vs. Geisenhainer, 3 Brad., 65.

And the Court cannot go into another part of the will to explain that which is certain in itself. Where the expressions are varied in two devises, the more natural conclusion is, that the form of expression was altered because the intention was not the same in both cases. Doe vs. Westly, 4 Barn. & Cress., 667; Compton vs. Compton, 9 East, 272; Spurt vs. Bence, Cro. Car., 368; Cownden vs. Clerke, Hobart, 33; Doe, ex dem. Child vs. Wright, 8 Tenn., 64; Goodright vs. Barron, 11 East, 219; Pue vs. Pue, 1 Md. Ch., 382; Doe vs. Sloggett, 5 Ex., 107; Bettison vs. Richards, 7 Taunt., 105.

The plain question is, whether this will is to be read and construed as it reads, or be altered, then read and construed. The appellees are attempting to use a limitation provided by the testator for a case which has never and can never arise. It is not the will of the testator, but the will of the appellees this Court is asked by them to enforce. The contingency he contemplated not having arisen, they seek to stretch its provisions to a case to which he did not apply it.

I. Nevett Steele, for the appellees.

The construction contended for by the appellants would give to the semicolon in the seventh clause, a force and effect unknown to the rules of construction established by the common law. Where ambiguity exists, punctuation may be regarded when no other means of solving the ambiguity can be found, but if itself the source of the ambiguity, it is unimportant, and will not be suffered to confuse a construction otherwise clear. Sanford vs. Raikes, 1 Merivale, 65; Arcularius vs. Geisenhainer, 3 Brad., 64, 76; Arcularius vs. Trout, 25 Barbour, 406; Wigram & O'Hara on Con. of Wills, 29; 1 Red. on Wills, 434; Mims vs. Armstrong, 31 Md., 98.

Even when the fullest force and effect to which a semicolon can be entitled, is given to it in this case, the construction contended for by the plaintiff, cannot be maintained. A semicolon is in punctuation next to a comma--it is always found in a sentence, and not at the end of it; and it does not destroy the dependence of one part of a sentence upon the other part. Where a will is divided into items, as in this case, the whole of each item prima facie constitutes the connected and complete disposition of property to which the item relates. To separate it into independent parts, and treat them as if they were separate clauses, is to do violence to the apparent intention of the will which connects them together as one disposition in one clause. To make such separation, when the item is one sentence, would be to make a will for the testator instead of construing his will as made.

The rules of construction not only require that the whole of each item should be connectedly considered in ascertaining its meaning; but they go further, and require that the whole will should be looked at and considered in settling the meaning of its different provisions; and the general intention thus ascertained, will, as far as possible, be carried into effect. In this case, the intention of the testator, which is after all, the true guide of the Courts in construction, is manifest throughout all the parts of the will, in which bequests are made to Mrs. Weatherly, that she should have a life estate only for her separate use, with remainder to her children if she should have any, and to his other children if she should die childless. The residuary clause was intended, in the part relating especially to her, to carry out this intention.

This construction of the will, founded upon its language, and this apparent general intention running through it, though sufficiently clear and strong of themselves, are strengthened by the evidence in the cause as to the circumstances which surrounded the testator. The age of Mrs. Weatherly rendered it altogether improbable that she would have children; her husband had failed in business in Baltimore; had unpaid debts hanging over him, and had gone to reside in Mississippi. If personal property was given to her absolutely, it would in the event of her dying intestate and without children, pass from the testator's family, and belong absolutely to Dr Weatherly; and even during her life if she went to reside in any State where...