The appellant was appointed trustee by the Circuit Court for Harford County to sell, for the purpose of partition, certain lands which had belonged to Mary E. Farnandis, who died in the year 1888. Amongst other property sold by him was that known as the Homestead Farm, which he sold for $25,000, and the sale was duly ratified. An audit was stated and by direction of the Court the trustee retained one-sixth of the net proceeds of sale until it was determined what interest James Farnandis had in this property, under the will of Mary E. Farnandis, his mother. The Court below having determined that the one-sixth was vested in James, ordered that it be distributed to Elizabeth F. Mitchell, who was the devisee under his will. A motion to dismiss the appeal from that order was made on the ground that the appellant had not such *Page 59 interest in the fund as to authorize an appeal by him, but as the questions involved were fully argued, and at the time of the argument it was not too late for other parties to enter an appeal, we will dispose of the case on its merits, without further reference to the motion to dismiss.
By her last will and testament Mrs. Farnandis gave to her son "James Farnandis for his natural life the Homestead Farm including therein" certain lands, ways, water-courses, rights and privileges mentioned. By succeeding paragraphs she gave him the live stock, farming utensils, crops, furniture, etc., on that farm, and the crops on the farm occupied by David Norris, and then follows this paragraph: "All the rest of my personal property, except my leasehold property in Baltimore City, I give to my children, Henry D. Farnandis, Walter Farnandis, James Farnandis, Edward Farnandis, George G. Farnandis and Elizabeth Mitchell to be equally divided between them share and share alike the share of my daughter Elizabeth to be subject to the limitations and provisions hereinafter prescribed." Although that only refers to personal property, it is important as it is the only place in the will where the names of the six children of the testatrix are given.
She then devised to two of her sons all of her real estate and leasehold property, except the lands devised to James, in trust to hold them for five years to collect the rents and profits and after paying the taxes, insurance, repairs and other expenses and charges, to divide the net income therefrom "equally amongst mysaid six children annually." She directed that no part of her said real estate or leasehold property should be sold or disposed of during the five years, excepting if the trustees deemed it judicious to sell any of said estate, or to lease any of the unimproved property, they could do so with the consent in writing of all her children who were living. The proceeds of the property so sold, and the rents of that so leased, she directed should be divided "equally amongst my said six children," and after the expiration of the five years the property devised to the trustees"shall be equally divided amongst my said six children." And if her daughter *Page 60 elected within three months after the death of the testatrix to take as part of her share a house and lot on Cathedral street, in the city of Baltimore, she could do so as therein directed, and in that event in the ultimate division of the estate the house and lot were to be "deducted from her sixth part of said estate."
The will then continues, "The remainder in fee after the life estate of my son James in the Homestead farm and lands herein specifically devised to him shall be held by said trustees and shall not be sold during the life of said James, but after his death the said Homestead farm and lands so specifically devised to my son James shall be equally divided amongst my said sixchildren." This is the provision which gives rise to the controversy in this case — the appellant contending that inasmuch as James was one of the testatrix's "six children," and by the terms of this devise it only undertakes to give the remainder after his death, she made the mistake of speaking of her six instead of five children amongst whom it was to be divided. When the testatrix died (in 1888), her six children named in the will were still living. Walter died in 1889, leaving children, and Edward in 1891, intestate and without issue, leaving as his heirs his brothers and sisters and the children of his deceased brother Walter. James died in 1900 and after making various bequests he left all the residue of his property, including his interest in the Homestead farm to Mrs. Mitchell, and therefore the real question to be determined is whether he had any interest in the Homestead farm to devise to his sister, excepting such as he inherited from his brother Edward. As already stated, the testatrix only named her children once — in the residuary clause disposing of her personal property — and James was one of the six then named. After that, in speaking of them she invariably used the term "my said six children." She unquestionably left James a sixth interest in her real estate other than the Homestead farm, and in her leasehold, and she did so by the use of the precise language now being considered — "shall be equally divided amongst my said six children." And then when we look at *Page 61 the will to ascertain what interests in the Homestead farm were left to the other devisees, we find that they must rely wholly and exclusively on that description of them. There is nothing in the terms of the will itself to indicate that the testatrix intended to give each of her five children (other than James), a one-fifth interest, but on the contrary she said these lands "shall be equally divided amongst my said six children." They could not be divided equally among six, if some have a fifth interest. The reasons assigned for this contention by the appellant are that the will indicates an intention on the part of the testatrix to have equality, and that by its terms James would be dead before the estate in remainder could be enjoyed, and hence it is argued she would not have intentionally made such provision for him. But if it be admitted that those would be sufficient reasons, if established, to justify us in changing the number of her children intended as devisees from six to five, we would be met by the fact that the will indicates a clear intention on the part of the testatrix to give James more than she gave the others. She not only left the Homestead farm to him for life, but she gave him absolutely all the live stock, farming utensils, crops, furniture and family stores on that farm and all the crops growing at the time of her death, or harvested on the farm occupied by David Norris. It is stated in appellant's brief that this personalty was appraised at $4,013, and yet in the paragraph in the will next after those bequests, the testatrix gave the rest of her personal property to her six children by name, including James. So after first giving the Homestead farm to him for life, when she disposed of the remainder she did just what she had done with the personalty and the rest of her realty and leasehold property — directed that it should be equally divided amongst her said six children. It should be observed in this connection that when she authorized her only daughter to select the house and lot on Cathedral street, then occupied by Mrs. Mitchell, she expressly directed not only that she should be charged with its value in the ultimate division of the real and leasehold property, but that she should be charged with interest *Page 62 on its valuation from the death of the testatrix and with taxes, insurance and expenses paid by or chargeable to the trustees. It is manifest then that she did intentionally make a distinction in favor of her son James. The testimony offered by those adopting the views urged by the appellant gives what was probably the explanation of this distinction made by Mrs. Farnandis. Her son James was paralyzed from his waist down for many years prior to his death, and he was wheeled around by a servant in an invalid chair. He lived on the Homestead farm in a cottage near the mansion house where his mother lived. Although physicially disabled, his mind was bright and he had charge of the farm and attended to other business for his mother. One of the witnesses said "there always seemed to be on her part the greatest solicitude and care for him, and on his part the disposition to give attention to her matters and manage the property." Under such circumstances it is not strange that a mother would be so touched by the physical condition of her son as to cause her to make some special provision for him and leave him more than she did her other children, and she may have thought that something might occur which would make it desirable for him to have more than a life interest in this farm. It would seem to be much more probable that such was her intention, than to suppose she would have forgotten that this afflicted son would be dead when the time came to divide the Homestead farm.
Nor would the fact that she knew he would be dead when the time for the division arrived be a sufficient reason to justify the Court in changing the terms of her will. Although she postponed the enjoyment of the possession of the remainder until after the death of her son, she gave these six children a vested remainder, and hence each of them could devise, convey or otherwise dispose of his interest, unless restricted by the will, and there was no such restriction attempted to be imposed on James's interest. While it may be unusual, it is by no means unheard of for a testator to devise a life estate and leave the remainder to a class that would include the life *Page 63 tenant. In discussing the rule where a devise in remainder is to the heirs of the testator, or to his next of kin, it is said in 24 A. E. Ency. of L. (2 ed.), 394. "The fact that the devisee of the particular estate is one of several persons who at the death of the testator answer the description of heirs or next of kin does not prevent the application of the rule. He would take jointly with the others a vested remainder." On the same page the author refers to the earlier cases which held that a devise for life to the sole heir of the testator, and after his death to the testator's heirs, was sufficient to exclude the devisee of the life estate from taking in remainder, and adds "The later cases, however, state as the correct rule that where a testator gives property to a tenant for life and on the death of the tenant for life to the testator's next of kin, and there is nothing in the context to qualify or in the circumstances of the case to exclude, the natural meaning of the testator's words, the next of kin of the testator living at his death will take; and if the tenant for life be such next of kin, either solely or jointly with other persons, he will not on that account be excluded." InReid v. Walbach, 75 Md. 205, there was a devise in trust for Jane M. Walbach for life, and from and after her death in trust for her child or children then living, etc., but there was no provision made for the contingency of all her children dying in her lifetime leaving no issue. It was held that upon the happening of such contingency the property would pass under a residuary clause in the will, and as Mrs. Walbach was by that clause entitled to one-fourth part thereof, her contingent interest would pass to her absolutely, and not subject to the trust. But we do not understand the appellant to contend that there was any legal obstacle in the way of James taking an interest in the remainder left after his life estate, and hence we need not cite other instances of devises of somewhat similar character. By this will there was a vested remainder created, which was expressly left to the six children of the testatrix, all of whom were living at the time of her death, and hence it is free from complications that sometimes arise in cases of this character, in which tenants for life are also given interests in remainder. *Page 64
We are of opinion, therefore, that by the terms used in the will of his mother, James Farnandis took a vested one-sixth interest in the remainder of this property, which by his will passed to Mrs. Mitchell, and there have not been sufficient reasons shown to justify us in determining that the testatrix did not mean what she said but intended to exclude James from the devise. It is not necessary to discuss the objections to the testimony taken subject to exception as it cannot affect the conclusions we have reached. The decree below will be affirmed, the costs to be paid out of the funds in the hands of the trustee, reserved for that purpose by the final order of ratification of the audit.
Decree affirmed, costs to be paid out of the funds in thehands of the trustee reserved by the order of Court ratifying theauditor's eighth report.
(Decided March 22d 1904.)