ALLDER v. JONES

Arthur W. Machen and W.V. Bouic (with whom was R.B. Peter, on the brief), for the appellant.

The power being to will to the children, and without right of selection being given, by employment of the word "such," or equivalent expressions importing right of choice, all the members of the class must be included. With expressions importing power of selection, the right exists; without such expressions, no right to select can exist.

The will of Samuel Jones required the widow to make an equal distribution. This will be apparent when the words of the will are critically examined. If we take the first clause or member of the power, " to will to my children," by itself, there can be no doubt as to its effect. It is manifest that these words, standing alone, import, first, that, under the power, the estate is to go to all the children; and secondly, and, with equal certainty, to those persons equally. The gift being to a class, the members of it must prima facie take in equal shares. It is this fundamental rule of construction which has given rise to the necessity for the insertion of the familiar expression " per stirpes not per capita" wherever individuals in different degrees are embraced in a legacy, and the intention is that a per stirpes distribution shall be made. This then being the natural and legal sense of these first words by themselves, we are to inquire, what is the qualification, or additional provision attached to them by means of the succeeding words, "as she thinks proper?" We submit, that if these latter words can reasonably convey a meaning consistent with the natural signification and prima facie effect of the previous clause such meaning, according to recognized rules of construction, should be given to them. The opinion of the Circuit Court, with reference to the qualifying words in question, says "the words necessarily import that the donee of the power was to have some discretion in the division of the testator's property which was the subject-matter thereof, and it is impossible to see that such discretion could be freely and fully exercised unless it includes the right to make an unequal distribution." We respectfully insist that this conclusion of the learned Court below is not sound or justified by authority.

The question, as we understand it, is this: Do the words "as she thinks proper" necessarily imply that the donee may disregard the general rule of equality? Cannot some other effect be reasonably given to them, conferring a large discretion upon the donee, and yet consistent with the preservation of the equal rights of the testator's children, the objects of the power? Is the assumption to the contrary of the learned Judges of the Court below well founded?

Surely, consistently with dealing with all the children upon terms of equality, the power might be allowed a very considerable scope.

(1.) Under such a power the donee might direct the property to be sold and the proceeds of sale to be divided among the children. Kenworthy v. Bate, 6 Ves. 793.

(2.) She might direct the property to be kept entire for a certain period of time for the common enjoyment of the children, which, under conceivable circumstances, would be a reasonable and not unusual testamentary provision, and afterwards go to them all in sub-division.

(3.) The donee might divide the property into lots or parcels (equal in value) assigning one to each child.

(4.) She might directly devise the entire property to them as tenants in common, leaving it to them, or to the law, to make partition.

(5.) She might devise it to all the children in joint tenancy.

(6.) She might, in the event of her having in her lifetime exercised the power given in the will, "to sell the farm for a big price," make suitable provision for the collection of the purchase-money and due distribution of it or of the securities taken.

Other practicable schemes of disposition possible to the donee under such a power could be suggested, but we believe these are sufficient to show what a wide discretion would be left to the donee under the power of appointment, without interfering with that equality among the children which the provisions of the will indicate to have been in the contemplation of the testator, and which indeed would be presumed in the absence of clear indication of a different intent.

A number of decided cases are cited in the opinion, but none of them, we think, will be found applicable to the point now under consideration. In the will in question the trust, or discretion, or power, to the wife is "to will to my children" — to will to the children, not "among" them. The words are explicit and direct; the property is to be "willed" to the children; the donee is not required to "part" or "divide" it among the children.

In Torrance v. Torrance, 4 Md. 11, 23, the words were "among all or such of my children or their issue, in such manner and proportion, and for such time and estate as she shall think fit."

The English cases cited in the opinion, all, like Torrance v. Torrance, exhibit powers expressly authorizing apportionment.

In Darling v. Edson, 4 Pa. Superior Court, 498, the power was "to divide all my real and personal estate among my children as she shall think proper, giving to each such a share as her judgment shall dictate." The opinion of the Court in the last case contains the sensible observation. "Every will must be construed in the light afforded by its own words and the surrounding circumstances, and the decisions on other wills, unless the cases are in all respects parallel, which rarely happens, may aid but not control the interpretation." Ib. 503. The Judge adds: "The truth is there is an absence of controlling parallelism between any case cited and the case in hand."

Even upon the assumption that the will of Samuel Jones did not require Cecelia S. Jones to regard the rule of equality in the division among the children, the power was not well executed.

The will of the testator plainly contemplated a division among his children of the estate itself, each child to have some part of it. Mrs. Jones has altogether disregarded this intention. Assuming that she has authority to dispose of the estate free from any obligation to divide it among all the children she undertakes to devise the real property — admittedly constituting the bulk of the estate — to her sons, Samuel and William, and daughter, Margaret, ignoring Catherine, the appellant. It is no sufficient answer to say that Mrs. Jones' will requires the payment to Catherine of $1,000 in four equal installments, payable, without interest, at one, two, three and four years from the date of her own death. Such a bequest constitutes no part or share of the estate, although the devise of the land is made subject to its payment.

If we are right in our view that the estate, in the condition existing at the death of Mrs. Jones (no matter now as to equality or inequality of the division), is willed to the children — to all the children, there is an end of the contention, the attempted execution of the power fails, and the property must descend as the will of Samuel Jones intended it in that case to go, to all his children equally.

If we look into the details of the substitutionary provision made for the appellant Catherine in Mrs. Jones' will, the departure from the husband and father's intent becomes yet more manifest. His will provides expressly that the whole estate, ("all of my property, real and personal,") after and subject to the provision for the widow during her life, is to pass to the testator's children at her death.

Catherine, according to the will of Mrs. Jones, is to get nothing at her death. Even the paltry legacy of $1,000 is not payable then. Divided up into four installments, the first of these is only to be paid one year after her death, and the last at four years. While payment is thus postponed, none of it is to bear interest. Can it be reasonably supposed that this is such a division of his estate as Samuel Jones intended? Far from indicating any expectation that a discrimination might be made against his daughter Catherine, the will discloses a special thoughtfulness of her; and indeed we cannot read the whole instrument through without perceiving that she was a favorite child. It seems to us that the Circuit Court has failed to observe how peculiarly alone this case stands, and how entirely different the language of the power in question is from the terms of the powers of appointment considered in the decisions referred to in its opinion.

A testator, who in our country makes a will, knows that the law will equitably fill up any gap which a power of appointment may fail to supply. In almost all instances his intention coincides with the general law, and contemplates an equal distribution among his children. Circumstances may make it desirable that some power of modal regulation should be conferred upon the surviving wife, and hence the insertion of powers of appointment. But it is never, we respectfully submit, to be presumed that when a testator gives power to his wife to will his estate at her death to his children as she may think proper, he intends to give her that unlimited power of disposition which requires the fullest expression of English conveyancing to give when the intent is to reserve to the appointor — himself the settlor and absolute owner of the property — that full power of final disposition which he would have had if no settlement had been made. We rely upon Myers v. Safe Dep. Trust Company, 73 Md. 413, as a direct authority in favor of the appellant, and respectfully submit that it has not been satisfactorily distinguished by the learned Circuit Court.

It is admitted on the part of our adversaries that Mrs. Jones was required to give some share of the estate to the appellant Catherine. Has this been done? Is a charge such as her will makes of a sum of money upon the land devised to Samuel, William and Margaret the same thing as a share of the land? We think an affirmative answer to this question would very much have surprised Samuel Jones. It would appear incomprehensible, probably, to any plain man unaccustomed to legal subtleties.

E.C. Peter and Arthur Peter, for the appellees.