Preston v. Clabaugh , 90 Md. 707 ( 1900 )

Usher Clabaugh died in September, 1885, leaving a last will by which he gave, devised and bequeathed "Unto George W. Harris and J. Alexander Preston all my (his) property real; personal and mixed and wheresoever situated, in trust, to hold the same for the use and benefit of my daughters, during their lives; after their death or the death of any one, to the child or children of said daughter, and in the event of said child dying without children of her body, then to the surviving child or children, subject to the right of dower of my wife in said estate, and also subject to the moneys due my mother for advances made by her in my lifetime, with power to said trustees to sell or dispose of all, or any of said estate without the purchaser thereof being required to see to the investment of said trust-funds; and I hereby direct my said trustees to pay over the whole of the income, or so much as may be necessary for the support, maintenance and education of said minor children; and I hereby appoint J. Alexander Preston my executor, c." The persons named accepted the trust and jointly administered the estate, up to the year 1886, when George W. Harris died. Since that period the appellant has been acting as sole trustee. In 1890, the Circuit Court for Carroll County assumed jurisdiction, and since then the trust has been executed by the appellant, trustee under the orders and supervision of that Court.

In 1899, Elizabeth Clabaugh having died unmarried and intestate, the appellant, being in doubt about the true meaning of the will, whether the share of Elizabeth remained in the trust or whether it should be discharged therefrom, filed his petition asking the Court to construe the will and direct him to act in accordance with such construction. The case having come to be heard in due course, the Court decreed, that the share of Elizabeth Clabaugh was discharged from the trust by her death and directed the trustee to assign and transfer one-half thereof to each of the two surviving sisters. From this decree the appellant has appealed.

It appears from the record that Edwina and Anna Clabaugh are still under the age of twenty-one years, the former being about eighteen and the latter fourteen years of age. The language employed by the testator, leaves no question as to the nature of the estate that passed to his daughters. His whole estate is to be held in trust for the use and benefit of his daughters "during their lives," and the whole income of it is to be applied (if necessary) to their support, maintenance and education. It is perfectly clear, therefore, that he intended that the property should be enjoyed by his daughters during their lives only; and also that as long as they all survived, the trust should continue. But while this is true, it does not follow that the daughters must therefore take as a class with a reciprocal right of survivorship; so that the trust would continue for the benefit of the survivors or survivor, so long as any of them were still alive. In England the rule is, that a devise to two or more persons is joint, unless there are words of severance; and if there are such words, or words that indicate severance, the parties will take as tenants in common. Morley v. Bird, 3 Vesey 631; Gilpin v. Hollingsworth, 3 Md. 195.

But in the case first cited, the Master of the Rolls said that "unless there were some words to sever the interests taken, it is at this moment a joint tenancy, notwithstanding the leaning of the Courts lately in favor of a tenancy in common." In this State, the general policy of the law is adverse to the construction of any instrument of writing so as to create a joint tenancy. By section 13, Art. 50, Code, it is provided that no deed, devise or other instrument of writing shall be construed to create an estate in joint-tenancy, unless it is expressly provided therein that the property thereby conveyed is to be so held. In the construction of last wills, while the rule that the intention of the testator must prevail is adhered to, the Courts manifest a strong leaning in favor of a tenancy in common. In the case of Chew v. Chew, 1 Md. 168, where a joint tenancy was strongly contended for, the Court said that it was, "imperatively required by a long course of judicial decisions in this State and elsewhere, sustained by every dictate of reason, justice and humanity, to view with disfavor estates in joint-tenancy and to give the widest and most liberal construction to testamentary instruments in order to defeat them whenever we can." The legatees for life, are described as "my daughters," but, from what appears later on in the will, we think it is clear that the testator did not intend they should take with reciprocal right of survivorship. He declares, that after the "death of any one" of his daughters, "to the child or children of said daughter." Though the words "her share" do not appear in the will, it seems to be clear that the meaning of the testator was, that if any one of his daughters died, her share was to pass to the child or children of that daughter; and in the event of her dying without children, the share was to pass to the child or children of his other daughters. In Barnum's case, 42 Md. 310, this Court said, "the language of the will `is, that the investment shall be for the benefit of my children, during their lives, and after their death, shall be the property, for the shares of the decedents, of their respective children or descendants per stirpes.' This language clearly imports severance or plurality of interests, and thereby constituted the children of the testator tenants in common for life." We are therefore of the opinion that the daughters of the testator took their interests in the estate as tenants in common, with remainder over to their children, in the manner already stated; and there being no such persons in existence at the time of Elizabeth's death, her share passed to her sisters as next of kin.

We do not think the rule in Shelley's case is applicable for the reason stated in Henderson v. Henderson, 64 Md. 191.

Finding no error, the decree of the Circuit Court must be affirmed.

Decree affirmed.

(Decided March 21st, 1900).