
    St. John’s Mite Association vs. Anna Maria Buchly et al.
    Equity.
    No. 9773.
    Decided February 14, 1887.
    Justices IIagner and James sitting.
    The whole will must be taken together and construed in the light of all its parts, and effect be given to the testator’s intention when thus ascertained, although it be apparently contrary to the language of some of the clauses of the will.
    STATEMENT OE THE CASE.
    Anthony Buchly died leaving his last will and testament. At the time of his death he was a member in good standing of the Masonic Mutual Relief Association of the District of Columbia. One of the by-laws of this association is as follows :
    “Sec. 4. Benefits. On the death of a member of this association, and upon payment of all deaths which have occurred prior to his, his widow, orphan, heir, assignee or legatee, shall be entitled to receive as many dollars as there are members in the association at the time of death.”
    By reason of this provision, his “ widow, orphan, heir, assignee or legatee,” as the case might be, became entitled to receive $1,652; and that amount was paid over to the administrators c. t. a. by the association, by whom it was invested for the benefit of Anna Maria Buchly, who claimed to be the sole legatee for life of the testator.
    Thereupon this bill was filed by the St. John’s Mite Association, which organization claimed the fund as an immediate bequest to it under the will of the testator. The bill, after setting forth this claim, prayed that the administrators be required to pay over the said fund to the trustees of said St. John’s Mite Association.
    A demurrer was filed, on the grounds: “1. That said complainant hath not in and by said bill, stated such a case as doth or ought to entitle it to any such relief as is thereby sought and prayed for against these defendants; 2. That if the matters stated do give the complainant any cause of complaint against these defendants, the same is triable and determinable at law, and ought not to be inquired of by this court.”
    The court below, upon hearing, entered a decree overruling the demurrer, and decreed that the administrators pay over to said trustees said sum of $1,652, together with all interest by them received on the same.
    From this decree the administrators c. t. a. and Anna Maria Buchly appealed to the General Term.
    So much of the will as is necessary to an understanding of the case appears in the opinion of the court.
    Job Barnard for plaintiffs:
    It does not appear from the will that the testator ever intended that the money to be paid by the Masonic Mutual Belief Association at his death should constitute any part of the life estate of his sister, or that it would be paid to his executors. He never contemplated that such would be the case.
    Our court, in'General Term, has in effect decided that the money to be paid by said association, on the death of a member, will in no case be payable to his administrator as assets. Masonic Mut. Relief Asso. vs. McAuley/2 Mackey, 10, *1*1.
    
    If he leaves no widow, orphan, heir, assignee or legatee, the mo.ney is paid into the general funds of the association.
    The person designated by will as a legatee will take in preference to the heir. Baub vs. Masonic Mut. Belief Asso., 3 Mackey, 68, 15.
    This fund is made up by the payment of $1 by each surviving member, on the death of a member; and in no case can it be called the property or estate of the member, for it never can come to him or to his estate. It is only an expectancy during his life, liable to be forfeited by his misconduct, or by failure to pay dues. A general disposition by will of all property and estate will not carry this expectancy ; but there must be a special designation of the fund, and of the person to whom it must be paid. Md. Mut. Benefit Society vs. Clendinen, 44 Md., 429; Morey vs. Michael, 18 Md., 241; Arthur vs. Odd Fellows’ Beneficial Asso., 29 Ohio St., 557.
    Upon the point as to the remedy being at law, I contend that the court of equity has ample jurisdiction on several grounds.
    The complainant is a beneficiary under a trust created by will where the trustees have never accepted or taken any action whatever; and the bill asks for them to act, or that new trustees be appointed. 1 Story Eq., secs. 29, 595.
    The bill seeks to follow a trust fund, converted into United States bonds.
    It also seeks the proper construction of a will, for which purpose a court of equity has original jurisdiction. 1 Wins. Exrs., 294.
    If there is any remedy at all at law, it is not such as would be adequate and complete so as to oust a court of equity of its jurisdiction.
    I submit that the decree of the court in special term should be affirmed.
    F. P. Cuppy for defendants:
    Whatever construction may be given to said will, the appellee has a complete remedy on the law side of this court, and for that reason its bill of complaint should be dismissed.
    The charter of the Masonic Mutual Relief Association granted by Congress, and by-laws, section 4, clearly make the certificates of membership property, which a member may assign or bequeath to whomsoever he may choose. Weil vs. Trafford, 3 Term. Ch., 108; Ex parte Huggins, 47 L. T. N. S., 559; s. s., 28 Alb. L. J., 6; Raub vs. Masonic Mut. Relief Asso., 3 Mackey, 68, 78.
   Mr. Justice James

delivered the opinion of the court.

The case involves the construction of a will.

It appears by the bill that Anthony Buchly was a member of the Masonic Relief Association, an organization which provided for the payment by its members of $1 each upon the death of a brother member in good standing. Mr. Buchly dying, the sum of 01,652, being the amount due, was paid to the executors of his will, and the question now is, To whom, under the terms of the will, is it payable ?

The testator gives to his sister, in general terms, for her life, all his real and personal estate and property “ of whatsoever kind or character, wherever situated, of which I may " die seized and possessed, with full powers to my said sister to sell,” etc. He further goes on to say that “ The personal property intended to pass to my sister includes all my household furniture, store, stocks, horses, vehicles, moneys, bonds, credits and open accounts on my books, and whatsoever else I may have and possess of personal effects.”

It is contended, on the part of the complainant, that this clause does not include the fund in question, because under a decision of this court (Masonic Mut. Relief Asso. vs. McAuley, 2 Mackey, 70), it is not in the ordinary sense a part of the estate of the testator.

If this clause were all there was of this will, it would be quite true that it would not carry this fund, since it is not in the ordinary sense of those words his property or estate.

The complainant, moreover, contends that there is a direct disposition of the fund in question by a subsequent clause, and that, too, in the manner required by the charter of the Masonic Relief Association.

This subsequent clause is as follows: “ The amount due my heirs or estate, at my death, from the Masonic Mutual Relief Association of the District of Columbia, I give and bequeath to William Peirce Bell, William H. Goods and Joseph Hamacher, trustees, and successors forever, for the use, in trust, of the association known as the St. John’s Mite Association,” etc.

As the first clause of this will, standing alone, contains nothing that sufficiently describes this fund, so, taken by itself, this second clause would seem to constitute a direct legacy of it to the St. J ohn’s Mite Association. But the whole of this will is not contained in these two clauses, and as the whole will must be taken together, we are of opinion that whether this fund is to be considered property or not, so as to pass, under a general clause devising and bequeathing his property, there is nevertheless exhibited, when the entire will is taken together, an intention on the part of the testator to include this fund in what he gives his sister Anna Maria for life.

Thus he goes on to state that this bequest to the St. John’s Mite Association is in addition to another one which is to take effect after the death of Anna Maria Buchly. ' We do not think that the testator could have intended this fund to vest in these trustees at once, if it was to be an addition to another legacy which was not to take effect until after the death of Anna. It would rather seem that this fund was intended by him not to go until the other legacy takes effect, namely, after the death of Anna.

Then there is another clause in which the testator uses this language in reference to the sole legatee for life : £i In the appointment of my sister as one of my executors, she having the life estate in all, I direct that no bond or surety be required of her.”

That would seem to indicate that he intended to leave nothing which she, as executrix, was to pay over during her life. Of course she would have to give a bond in any event, but that does not any the less weaken the fact that the testator’s intention as to this fund is shown by his idea that a bond was not necessary if the executrix was to receive all for life; so that, taking the whole will together, we are clearly of the opinion that the intention of the testator was to give — and that he so understood himself as giving-^-this fund to his sister as a part of his property. It is entirely immaterial whether in point of law he was right in calling it his property, provided he shows that it was his intention to have it pass to his sister under the bequest to her of all his property for life.

We were referred to a case in 29 Ohio St., 557, Arthur vs. Odd Fellows’ Beneficial Asso., in which the court said that such a fund as this would not pass as property; that it would only pass by the exercise of the power of appointment.

But by this we understand that all that is necessary is, that the appointment, viz.: the power of disposing of it by will, shal^be intelligible; that it shall be sufficiently designated to whom the fund is to go. We think the testator done that. The fund goes to his sister, not as property passing by the first clause of his will, but because this will, taken together, indicates the intention of the testator that it is to go to Anna Maria Buchly for life, and after her death to the St. John’s Mite Association*

For these reasons we shall have to reverse the decree below.

Mr. Justice Hagner

concurring;

I think it is very clear that the testator, in the general words which he uses at the commencement of his will, intended his sister to have a life estate in everything, when we view that provision in the light of the other clauses of this will. One of these clauses, where he creates a residue and remainder out of which this shall be paid, is this:

Upon the death, of my said sister, I give, devise and bequeath all the remainder and residue of my real estate and personal property, upon the terms, conditions and restrictions, to the persons, parties and corporations following.”

Then for the first time ho names this corporation with the others. Therefore the corporations, acoording to that, are to get it after the death of the sister. He then goes on to say what shall be done with certain real estate. He directs that it shall be sold after the death of his sister, and “ that to the proceeds of such sales shall be added the proceeds of all my remaining personal property and effects, after the death of my said sister, of -whatsoever kind or character.”

There he uses the same expression “property,” which, as my by brother says, shows whether we may think it was property in the general sense or not, it was designed by him to be disposed of in the way indicated.

Going on further we find that this $1,652 is to be added to something, and that the something to which it is to he added, cannot, by its very terms, come into existence until after the death of Anna Maria Buchly. Of course this addition cannot take place until after her death, and of course it cannot go until then.

Then going on further, he says:

“I deem it best to add, as my intention in all the foregoing, that no appropriation or disposition of any of my property shall be made during the lifetime of my sister, excepting only those devises and bequests to my said sister and son, as the same are herein provided, or as she alone may desire and direct.”

Then again comes the expression “she having the life estate in all,” to which my brother James referred. Then there are two or three other provisions of the same character in thecodicils, such as this :

“ Upon the determination of the life estate of my sister I give, devise and bequeath unto William Pierce Bell, William H. Goods and Joseph Iiamacher, trustess and survivors forever, for the uses and trusts specified in my will, $5,000 in trust, for the sole use and benefit of the objects of the St. John’s Mite Association of the District of Columbia.”

That is the same association to which he is now about to give an additional legacy over and above what was to arise from this Masonic Mutual Belief Association. He continued; “ The interest and income only to be used, expended and disbursed for the objects of said association as in said will is particularly set forth, and under the same restrictions and regulations as in the former bequest to said association,” etc.

Here, again, was a sum of money which was to be added to this thing, and this $5,000 could not be paid over to this Mite Association until after the death of his sister.

Now when we find in the will a bequest like this which, in terms, is not to be paid over until the happening of a certain event, and then find another legacy to the same association, having the same trusts and the time fixed, about which there may be some doubt and ambiguity, we must surely apply the principle that this ambiguity must be solved in the line of the express bequests which are settled.

All of these clauses point to the same conclusion. In another portion of this will he says:

“After the expiration of the time provided in my will for the trustees named for the Buchly charity fund of Columbia Lodge of Odd Fellows to draw the revenue or income from my property situated in squares numbered 380 and 457, or before the said ten years have expired, at the end of two years after the decease of my siter, I give, devise and bequeath,” etc.

There, apparently, is another fixing of the time, the decease of the sister being a starting point of these particular ones. Then he proceeds:

“ Fifth. All the remainder and residue of my estate, real, personal and mixed, not hereinbefore disposed of, I give, devise and bequeath unto my executors hereinbefore named * * * to become part of the said bequests and subject in like manner to the same terms, conditions and restrictions as are made and annexed to the previous bequests.” Again all of them after the death of his sister.

Then, finally, under the seventh clause he says:

“As both in my will and this codicil I have disposed of my property, first, to my sister, who has been faithful and true to me and to all my interests, and next to institutions that have honored me repeatedly and to whose principles I am strongly attacked, and to worthy corporations for charity.”

There are certain expressions in the second codicil which, without being particularly strong, are conducive to the same result.

We are thus confronted with a case in which everything tends to show that the testator first provides for him own blood, which a corporation, howevever meritorious, is not; and in analogy to the principle upon which we say that the heir is not to be disinherited except by express words, so we say that a will, all the expressions of which go in the direction of his own people first, should be sustained as so declaring, rather than as giving property to strangers who are created participators by his own bounty.

I concur entirely with what my brother James has said.

The decree will be reversed and the final decree dismissing the bill will be prepared by counsel.  