This is a special case stated under the 47th general equity rule, for the construction of the last will and testament and codicil thereto, of William Hamilton, late of Baltimore City, deceased.
The facts to enable the Court to decide the questions submitted and raised on the record, briefly stated, are these.
Mr. Hamilton departed this life on the 15th day of November, 1902, owning real and personal estate of the aggegate value of fifty thousand dollars, and leaving a last will and testament dated the second day of July, 1890. A codicil was made to the will, and bears date, the 16th day of March, 1897. The will and the codicil were duly admitted to probate in the Orphans' Court of Baltimore City, and the appellees qualified, as the executors, named therein.
By the eighth clause of the will and the one here in controversy he provides as follows: "I give to my two grandchildren, the children of my deceased daughter, Mary Julia, wife of Tulley A. Joynes, Jr., all that lot in fee fronting about fifty-nine feet on Franklin street near Arlington avenue and adjoining *Page 681 the lot I gave to my daughter, Mary Julia, and that my executors shall sell or lease the same and deposit the net proceeds in bank or invest the same for the benefit of my said grandchildren, Evelyn and Julia Joynes, and also the sum of one thousand dollars the interest to be paid from the time of my death until they or either of them are eighteen years old and in case of the death of either the survivor to have all and in case of the death of both before they are of the age of eighteen the said sum or sums of money is to be equally divided among my children living at the time of said death if such should occur."
The testator left surviving him seven children and three grandchildren. The appellants are the children of a deceased daughter and are the granddaughters named in the eighth clause of the will and are now above the age of eighteen years.
At the date of the execution of the will, the lot which the testator owned on Franklin street, and which he devised by the eighth clause of the will to the appellants, was improved by a small chapel and this was rented to the Concordia Evangelical Lutheran Congregation of Baltimore at a yearly rental of $80.00.
On the 28th of July, 1896, and six years after the date of the will, the testator, in consideration of $500 paid him, leased this lot to the church for 99 years, subject to a ground rent of $120 and gave the church the right in the lease to redeem the rent and purchase the lot at any time for the sum of $2,000.
Subsequently, on the 16th day of March, 1897, Mr. Hamilton executed a codicil to his will, which among other things provides as follows: I release my son, Cornelius J. Hamilton, in paying to my two granddaughters, Evelyn and Julia Joynes, the children of my deceased daughter, Mary Julia, the sum of one thousand dollars and give to them the ground rent of eighty-two 50-100 dollars on the lot fronting sixteen feet six inches on the west side of York road corner of Barrackman's lane by one hundred and twenty feet deep, they are *Page 682 to have the ground rent created on the lot on Franklin street adjoining the lot given or deeded to my daughter, Mary Julia, the rent amounts to one hundred and twenty dollars during their natural life and in case neither of them should leave no children then their portion to go to my children living at their death in equal shares.
Afterwards, on the 22nd day of October, 1901, the church redeemed the ground rent reserved in the lease, for the sum of $2,000 and received a deed from the testator, for the Franklin street lot. And it appears from the testator's bank-book with the Fidelity and Deposit Company of Baltimore, that the sum of $2,000 was deposited by him in the bank on the same day.
And it further appears, that after the decease of the testator, there was found in a pass-book of the Savings Bank of Baltitimore, which belonged to him, the following check and letter in his handwriting:
Check.
No." Baltimore 190
Fidelity and Deposit Company of Maryland
Pay to the order of Evelyn and Julia Joynes
Two thousand ...................................... dollars $2,000.
(Signed) Wm. Hamilton.
Letter.
Baltimore, October, 1901.
The enclosed check for two thousand dollars, in case of my death is to be paid to Evelyn and Julia Joynes, my grandchildren, the children of Tulley A. Joynes, in lieu for the ground rent of one hundred and twenty dollars on lot on Franklin street in my will, which has been redeemed by the church.
(Signed) Wm. Hamilton.
Upon the case as thus stated the Circuit Court of Baltimore City held that under a proper construction of the will and codicil of the testator, the appellants were not entitled to any interest in or to any part of the proceeds of sale of the Franklin street lot mentioned in the eighth clause of the will. And an appeal is taken from this decree.
It will be thus seen, that there are two questions presented for our determination and they relate, first, to the disposition of the $500, a part of the proceeds of the Franklin street lot, *Page 683 received by the testator, at the date of the lease to the church of the lot, in dispute, and secondly, as to the effect of the devise of the ground rent created on the lot on Franklin street, and specially devised by the testator in the codicil to his will, to the appellants, and subsequently redeemed by the church.
As to the first question, but little need be said, because we think it is quite clear that the testator in the codicil, dated the 16th day of March, 1897, revoked the previous devise of the lot, as contained in the eighth clause of the will, and gave in lieu thereof the ground rent created thereon. The language of the codicil is, they are to have the ground rent created on the lot on Franklin street adjoining the lot given or deeded to my daughter, Mary Julia, the rent amounts to one hundred and twenty dollars, during their natural life, and in case neither of them should leave children then their portion to go to my children living at their death in equal shares.
The testator executed this codicil about eight years after the lease to the church, creating the redeemable ground rent, which was subsequently redeemed at $2,000, and after he had received the $500, a part of the consideration for the lease. The codicil gives the ground rent only and not the $500, which he had received from the lessee. There is nothing in the will or codicil to indicate a contrary intention and as the will was revoked by the codicil to this extent, the devise must fail as to this part of the proceeds of the Franklin street lot, given by the eighth clause of the will to the appellants. Jones v. Earle, 1 Gill, 395; Boyle v. Parker, 3 Md. Chy. 43; Johns Hopkins v.Pinckney, 55 Md. 380.
The remaining question in the case involves a construction of the will and codicil as to the effect of the devise of the redeemable ground rent created on the lot, and the converted proceeds of $2,000, subsequently deposited by the testator in the bank.
Now it is a cardinal rule in the construction of wills, that the intention of the testator is to be carried into effect, unless opposed by some principle of positive law.
Looking to the will and codicil, and the testimony in the *Page 684 case, we are satisfied that the testator did intend to give to the two granddaughters the converted proceeds of the ground rent on Franklin street, and that any other construction of the will would clearly defeat this intention.
In the first place it appears from the eighth clause of the will that he gave them the lot itself with directions to his executors to sell or lease the lot and deposit the net proceeds in bank or invest the same for their benefit until they arrived at the age of eighteen.
By the codicil, dated on the 16th day of March, 1897, he devised, among other things, the ground rent, which had been created on this lot.
Subsequently, after the rent had been redeemed, he drew a check on the bank where the fund had been deposited, payable to the appellants and accompanied it with a letter, dated October, 1901, to the effect that the enclosed check for two thousand dollars, in case of my death is to be paid to Evelyn and Julia Joynes, my grandchildren, in lieu for the ground rent of one hundred and twenty dollars on lot on Franklin street in my will, which has been redeemed by the church."
But it is contended, upon the part of the appellee, that as the church redeemed the ground rent in the lifetime of the testator it was not there for the appellants to take under the codicil, and the devise failed. We cannot agree to the application of this rule of law, to the facts and circumstances of this case.
While it may be conceded that the check, letter and other paper, set out in the record cannot be upheld as testamentary papers or as constituting an enforceable gift, Saylor v.Plaine, 31 Md. 158, and Chase v. Stockett, 72 Md. 244, yet they clearly trace out and identify the fund in bank at the time of the death of the testator as the proceeds of the redeemable ground rent, and also show that it was the manifest intention of the testator, that the converted proceeds should pass under the codicil to his will to the appellants.
This being so, there was no ademption of the legacy, and the grandchildren take the fund of $2,000, subject to the limitations expressed in the codicil. Littig v. Hance, 81 Md. 425; *Page 685 Frick v. Frick, 82 Md. 218; Nooe v. Vannoy, 59 N.C. 185;Wright v. Marshall, 72 Ill. 584; Woods v. Moore, 4 Sanford, N.Y. 579.
The intention of the testator obviously, was to provide for the appellants, the grandchildren named in the codicil, and to sustain the appellees contention and the conclusion reached by the Court below in this case, would defeat not only one of the objects of his bounty, but would violate this intention, as expressed in the will and codicil.
For the reasons, we have given, the decree of the Court below will be reversed and the cause remanded, to the end that a decree may be passed in accordance with the views herein expressed.
Decree reversed and cause remanded, the costs to be paid bythe executors out of the estate.
(Decided February 17th, 1904.)