Young v. Twigg

• Decision Date: 23 July 1867
• Citation: 27 Md. 620
• Parties: JOHN YOUNG, THOMAS M. DANIELS, CHRISTOPHER KELLY AND THE COMMISSIONERS OF ALLEGANY COUNTY v. WILLIAM TWIGG AND OTHERS.
• Court: Maryland Court of Appeals

27 Md. 620

JOHN YOUNG, THOMAS M. DANIELS, CHRISTOPHER KELLY AND THE COMMISSIONERS OF ALLEGANY COUNTY v. WILLIAM TWIGG AND OTHERS.

Court of Appeals of Maryland

July 23, 1867

APPEAL from the Equity side of the Circuit Court for Allegany County.

The bill in this case was filed on the 7th of October, 1861, by William Twigg, against the Commissioners of Allegany county John Young, Thomas M. Daniels and Christopher Kelly, and prayed for a decree to compel the Commissioners of Allegany county, to convey to the complainant an undivided half in certain lands purchased from them by Christopher Kelly and James Twigg, the father of the complainant, or to convey to him in severalty that part of the property purchased as aforesaid, and held by the said James Twigg in his lifetime under a parol partition between him and the said Kelly together with an undivided half of so much of said lands as were purchased by them, and not divided between them. The bill also prayed for an account against Daniels and Young for the rents and profits of the said property, while they respectively occupied the same; and for such other and further relief as the nature of the case might require. All of the defendants appeared and answered. Pending the case the defendant Young filed a cross-bill. The facts of the case will be found very fully and clearly stated in the following opinion of REVERDY JOHNSON, JR., who acted as Special Judge in the trial of the cause below:

The bill seeks to procure from the Commissioners of Allegany county, the legal title to a portion of land alleged to have been purchased from them by James Twigg, the father of complainant, and a certain Christopher Kelly, on the 5th of April, 1853. The purchase was in undivided moieties and the full consideration had been paid at the filing of the bill. The land sold by the Commissioners, as appears by the agreement, is described as the reversionary interest in certain land, in which Mrs. Harriet Pigman then had a dower interest, together with the lease of her life estate, and also all the balance of the lands which belonged to B. S Pigman and which had not been disposed of by Hanson B. Pigman or Nathaniel Pigman, trustees, or by Thomas J. McKaig, trustee, for the sale of the real estate of B. S. Pigman, prior to the 6th of April, 1859, being the same lands which were purchased by the Commissioners from the said McKaig as trustee of Pigman, reference being had for more particular description, to the articles of agreement between them and McKaig, of 6th April, 1850. In this latter instrument the lands are designated as "the balance of the Prather Farm not heretofore sold." The complainant rests his claim upon a special devise in the will of his father James Twigg, deceased. The County Commissioners aver their readiness to comply, but for a counterclaim upon them for the same land by the defendant Young. The latter claims by virtue of a sale made by John Hartley as executor of James Twigg, under either an express power to sell conferred by the will, or by the implied power vested in him as executor, to subject the real estate of the deceased to the payment of debts. The controversy turns upon the construction of certain clauses in the will of James Twigg. The questions are, what interest, if any, the complainant took under the will, and whether the executor had any power of sale, as to this particular land? The positions of the claimants are so directly the reverse of each other, that the inquiry into the right of one, virtually disposes of that of the other.

First. As to the complainant's interest under his father's will. The will bears date 9th August, 1854, and in its third clause provides as follows:

"Item. I give and bequeath to my oldest son William, the following tracts or parts of tracts of land, to wit: it being one-half of the tract I bought of the Commissioners of Allegany, and known as the old farm of James Preter, together with all of the improvements thereon, and also part of a tract of land called "Cleverly," and containing in all five hundred and forty-eight acres of land, it being the one-half of the above mentioned tract, "together with all the improvements thereon, the above named tracts or parts of tracts of land lying and being in Allegany county, State of Maryland."

This devise the defendant Young contends is unavailing to the complainant, because on its face it is void for uncertainty, as to what land and what part or half of land it refers to; and because he cannot introduce matters aliunde to give greater certainty to the clause. In construing a will we are to seek the intentions of the testator from the face of the will, and in doing so, have to take all its parts in their mutual relations to and bearing upon each other. And we are also to give effect, if possible, to every clause, assuming that the testator had a specific purpose in each separate disposition, all of which, if they can be carried out, constitute material elements of his will. The testator in this case left a widow and ten children; and the purpose of the will, as gathered from its face, is to give to the widow a one third interest for life, in such of his real estate as she may select, and the remainder of the realty outside of the third clause, as well as the reversion after her life estate, is devised to his ten children. The complainant William was numbered among the ten. After specific pecuniary legacies to three of the children in the seventh clause he devises the "rest and residue" of his real and personal estate to be equally divided among his ten children named in the second clause. Now thus far William would take an equal interest with his brothers and sisters, in what was embraced in the "rest and residue." But there are other provisions of the will to be gratified, and what constitutes the "rest and residue" in the mind of the testator, must depend upon what disposition he may have made in the prior clauses of the will. It is clear that that part of the realty in which the widow might elect her dower, formed no part of this "rest and residue," because in the second clause he expressly provides for that portion after the termination of the life estate. He directs it to be sold by the executor, and its proceeds to be equally divided among all the ten children. On coming to the third clause we see an apparent design of the testator to except other property from this residuary devise. Whether the particular part of the estate can be sufficiently designated or not, so as to pass it to the devisee, the intention is apparent to make William a favored beneficiary under the will. In the second and seventh items, he is given an equal share with the other children in the property, which is clearly embraced in those clauses, and in this third clause a much larger portion of the realty is designed to be given to him. If this can be gratified, it is just as imperative upon this Court to carry out the devise contemplated by this part of the will, as any of the other dispositions it contains. About the intent on the part of the testator, I conceive there can be no doubt, the only question is how we are to arrive at the subject matter of that intent. And I think it is in this, that the defendants' position fails of force. To look outside of the will to ascertain what the testator at the time of using the words may have proposed as to their effect--and to refer " aliunde" to learn upon what subject matter the language as used would operate, are very different inquiries, and so recognized by the authorities. In the first case evidence or explanations " dehors" the instrument, is not admitted to speak for the testator; in the latter such means of ascertaining the subject of the devise are clearly admissible. 1 Greenleaf Ev., 277, 288; Smith vs. Bell, 6 Peters, 68; Walston vs. White, 5 Md. Rep., 297. If the evidence upon which the complainant relies here to give certainty to this devise, is admissible, there can be no doubt as to the particular portion of his estate the testator intended to embrace in this clause. The case of Douglas vs. Blackford, 7 Md. Rep., 8, was very similar to this in its facts, both as to the character of the devise, the evidence introduced to sustain it, and the objection urged. The testator in that case devised to his son Henry his "Home Place," and to his son William his "Lower Farm," on which "Knode lived," to wit, the three parcels of land at different times acquired by purchase from the heirs of Thos. Shepherd, Dr. Hays, and the trustee for the sale of Bedinger's real estate. The question was what passed to William under the description "Lower Farm," there being an apparent discrepancy, between that general term and the further description, "the three parcels of land," &c., in other words, as urged here, an uncertainty as to what the clause devised. But the Court had no difficulty in that case in looking " aliunde' D' and in referring both to record evidence, and to parol testimony to ascertain what the terms "Home Farm" and "Lower Farm," embraced. We turn now to the particular will, and find that in the third clause the testator devises to William one-half of the tract he bought of the Commissioners of Allegany county, "and known as the old farm of James Preter," &c.

With the evidence documentary and parol before the Court, and proper to be regarded, there can be no question as to the particular land referred to in this clause, or the nature of the interest the testator intended to devise. The exhibits and the testimony of White place this beyond all doubt, and the testator, I consider, has validly devised to William, the interest in the undivided moiety which, in connection with Kelly, he bought of the Commissioners of Allegany county. By "one-half of the tract I bought," we are...