Weybright v. Powell

• Decision Date: 04 January 1898
• Parties: WEYBRIGHT v. POWELL et ux.
• Court: Maryland Court of Appeals

39 A. 421

86 Md. 573

WEYBRIGHT v. POWELL et ux.

Court of Appeals of Maryland

January 4, 1898

Appeal from circuit court, Carroll county, in equity.

Bill by W. H. Powell and Emma S. Powell, his wife, against Samuel Weybright individually, and as executor of the estate of John Weybright, deceased. From a pro forma decree construing deceased's will, defendants appeal. Reversed in part, and affirmed in part, and the cause remanded.

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

Francis N. Parke and H. M. Clabaugh, for appellants. Armstrong & Scott, John M. Roberts, Jas. A. C. Bond, D. N. Henning, and E. O. Weant, for appellees.

BOYD J.

This is an appeal from a pro forma decree construing the last will and testament of John Weybright, which was executed in 1887. The testator bequeathed to his wife $1,000 in cash, and certain goods and chattels absolutely, and 18 shares of stock in the First National Bank of Westminster, Md., for her use and benefit during her natural life. He also devised to her for life, certain real estate. He left to his son, the appellant, $4,000, subject to a deduction for money due by him; and to his daughter, the appellee, he gave the real estate and bank stock left to his wife, for life, adding after each item "not to take effect until after the death of her mother," and then gave her certain other real estate and personal property in addition to what was left to her mother for life. Following the devises and bequests to his daughter, who is now Emma S. Powell, is this clause: "Item. Nevertheless, the said Emma S. Weybright dies without bodily heirs, my will is then that said real estate and personal property thus described shall relapse to my son, Samuel Weybright, and his heirs, for their proper use and benefit, but not until her mother's death." He directed his executor, who was his son, to collect all debts due his estate, and pay his debts as soon as possible, and to sell his other property, real or personal, not disposed of by his will, to the best advantage, and apply the proceeds to the augmentation of his estate, and then added the following clause: "After my debts and expenses and all of the above legacies are all paid, should there be any money left of my estate, my will is that said money shall then be equally divided between my two children,--that is to say Samuel Weybright and Emma S. Weybright,--share and share alike." The clause in the will that has given rise to this controversy is the one above. "Nevertheless the said Emma S. Weybright dies without bodily heirs," etc. An agreement in the record states that the widow departed this life in December, 1892, about a year after the death of the testator, and that the executor was allowed, in his first account passed in the estate, to retain the stock in the First National Bank of Westminster (which had been left to Mrs. Weybright for life, and then to Mrs. Powell), and the stock of the Westminster Saving Institution (which was left to Mrs. Powell), subject to the provisions of the will. It is admitted in the answer that Mrs. Powell had an infant child but it is contended that the words "dies without bodily heirs" mean without bodily heirs living at the time of the death of Emma S. Powell, and that the executor is entitled to retain the property until her death. The court below, by the pro forma decree, adjudged and decreed that those words vested in Mrs. Powell an absolute fee-simple estate in the real estate left her, and that the personal property bequeathed to her was given to her absolutely without any limitations or qualifications whatever, and that she is now entitled to the possession of the real and personal estate. Samuel Weybright, the executor, was directed to surrender and deliver to her all the personal property bequeathed to her. The question to be determined, therefore, is what effect, if any, that qualifying clause had upon the bequest and devises to Mrs. Powell. There is nothing in the language of the devises and bequests themselves which in any wise limits or qualifies them, excepting in the first, second, and third items, which conclude with the statement "not to take effect until after the death of her mother," those items being applicable to the real estate and national bank stock given to Mrs. Weybright for life; and, but for this clause in the will now in controversy, the daughter's estate and interest in the property given her would now be absolute, her mother being dead.

It is conceded by the appellant that prior to Acts 1862, c. 161 (section 317, art. 93, Code), the words "dies without bodily heirs," without anything in the will to modify or restrict their meaning, would have meant an indefinite failure of issue, and the devise over would have depended upon too remote a contingency for the executory devise to be good; and hence Mrs. Powell would have taken a fee simple in the land devised to her, without any restriction, and an absolute estate in the personalty. But it is contended that the act of 1862 does apply and remove that difficulty. It provides that, "in any devise or bequest of real or personal estate, the words 'die without issue,' or 'die without leaving issue,' or any other word which may import either a want or a failure of issue of any person in his lifetime or at the time of his death, or an indefinite failure of his issue, shall be construed to mean a want or failure of issue in the lifetime or at the time of the death of such person, and not an indefinite failure of his issue unless a contrary intention shall appear by the will." That the words "dies without bodily heirs" are embraced within the act of 1862 would seem to no longer admit of doubt in this state. The expression "bodily heirs" means "heirs of the body." Seeger v. Leakin, 76 Md. 506, 25 A. 862. In Mason v. Johnson, 47 Md. 347, the term used was "shall die without an heir of the body lawfully begotten," and it was held to be covered by the act of 1862. In Gambrill v. Forest Grove Lodge, 66 Md. 17, 5 A. 548, and 10 A. 595, it was "die...