
    CARRIE W. HOLMES, Administratrix of Edward Abbott Holmes, vs. THOMAS MACKENZIE, Trustee, et als.
    
      Wills: construction; “rest and residue” j- presumption against .intestacy. Buie in Shelley’s Case.
    
    A general residuary clause precludes intestacy as to any part of the estate, unless the clear intent of the will prevents such a construction. p. 215
    The words, rest and residue, are in themselves comprehensive enough to include any interest in the estate of the testator not previously devised or bequeathed. p. 215
    In construing wills the safest course is to abide by the words of the testator, unless upon a consideration of the whole will there is something amounting almost to a demonstration that the plain meaning of the words used is not the meaning of the testator. p. 215
    Every intendment is to he made against holding a man to have died intestate, who attempts to dispose of the residue of his property. p. 215
    A testator by his will left a sum of money to he invested by his executors, etc. — the income to he paid to his wife, during her life, or widowhood: in case she re-married, one-third the income to he paid her for life: all the rest and residue of his estate he devised to his children, subject to certain limitations: held subject to the wife’s estate, this fund formed part of the residue of the estate, and would eventually go to the children, subject to those limitations.
    p. 216
    The Buie in Shelley’s Case (abrogated by the Acts of 1912, (ch. 144), Was not favored in law, as it disregards the testator’s expressed intent. pp. 216-217
    
      It is never applied except when the manifest purpose of the disposition is to vest the title after a termination of the life estate in precisely the same classes of persons to whom it would pass if the life tenant, dying intestate, were the owner of the entire estate. p. 217
    By a will there was a gift to each of the testator’s children for life, and after the death of any child, then that share or portion to go to the children of such deceased child, then living, and to their heirs absolutely, hut in the event of the death of any life tenant without issue living at the time of his death, then to such of the testator’s children who might then he living to he held under the same limitations as the respective shares bequeathed to them in the first instance; held that to such limitations the rule in Shelley’s Case did not apply. p. 217
    
      Decided May 10th, 1912.
    
    Appeal from the Circuit Court for Baltimore County, in equity (Burke, J.).
    The facts are stated in the opinion of the Court.
    The cause was argued before Boyd, C. J., Briscoe, Pearce, Thomas, Lexer and Stockbridge, JJ.
    
      Richard 8. Ovlbrebh,, for the appellant.
    
      Thomas Mackenzie (with whom were Ogle Marbury and II. Findlay French on the brief), for the appellees.
   Urner, J.,

delivered the opinion of the Court.

William Holmes, of Baltimore county, died in the year 1881, leaving a will, executed ten years previously, which created an estate in favor of the testator’s widow during her life or widowhood in a designated lot of ground in Baltimore City, upon which it was recited that he was about to erect a dwelling, together with the household furniture of which the testator should die possessed, with remainder to his sons successively for life in the order of their ages, and with provision for the ultimate sale of the property and division of the proceeds equally among all the testator’s grandchildren. It was provided that all of the children should have a home in the dwelling mentioned until their marriage. The will then proceeds as follows:

“I also order and direct that the sum of one hundred thousand dollars be invested by my executors, in good and safe ground rents in the City of Baltimore, the income and rents derivable therefrom to be paid to my said wife, Anna P. Holmes, so long as she remains my widow, and in case she marries again, one-third of said rents and income to be paid to her from the time of said marriage until her death.”
“All the rest and residue of my estate, real, personal and mixed, I order and direct to be divided in as many parts as I may leave children living at the time of my death, each child to have one of the said parts, to be held by them for and during the term of their natural lives, respectively, and from and immediately after the death of each one of said children, then the said share or portion to go to the child or children of the said deceased child then living, and to their heirs and assigns absolutely, but in the event of the death of any one of my said children without leaving lawful issue living at the time of his or her death, then the share or portion of the one so dying to go to such of my children that.may then be living, to be held as the share or portion herein devised to each of my children is held, with the same limitation over to the children of such child or children, and in order that the rest and residue of my estate may be equally divided among all my children and their descendants, as herein provided, I direct that all sums of money that may be given by me to my children upon, their marriage, and in case my life insurance policy in the New York Mutual Life Insurance Company shall be payable to any one or two of my children, then in that event, I direct that all such sums of money shall be charged to said children, respectively.”

The testator was survived by his wife, named in the will, and by seven children, two of whom were adnlt daughters born of a former marriage. The widow continued to occupy with her children the home described in the will until her death, which occurred in 1884. Her stepdaughter had been married for a number of years and'resided elsewhere. The estate remained unsettled during the lifetime of the widow, and the separate investment of $100,000.00 directed by the will was not made, but she received the whole income of the estate until the time of her death. The home property was subsequently sold under proceedings in equity upon allegation and pi’oof that- a sale and investment- of the proceeds under the limitations of the will would be for the benefit of ail parties interested. Independently of this property the estate consisted principally of a ground rent having a redeemable value of about $121,000.00 and securities appraised at approximately $33,000.00. This portion of the estate has been, held and administered by successive trustees appointed by the Circuit Court for Baltimore County as an entire trust without any division of the corpus, the income being paid since the death of the widow to the life beneficiaries mentioned in the residuary clause of the will. The ground-rent was eventually redeemed, and a considerable increase in value over the ap-praisment was realized from the sale of certain shares of stock. The estate as now invested amounts to about $118,000.00. ■

The testator’s eldest son, Edward Abbott Holmes, died intestate and without issue on June 24th, 1911, Pie was survived by a widow to whom letters of administration on his ('state were issued. The other children of the testator are all living, and there are a number of grandchildren. The administratrix of the estate of the deceased son filed a petition in the equity cause in which the trust has been administered naming the present- trustee and all the testator’s children and grandchildren in being as parties, praying for a construction of the will, and asserting, as the correct theory of interpretation, that the fund of $100,000.00, directed to be invested for the benefit of the widow of the testator during her life or widowhood, didi not pass by way of remainder under the residuary clause of the will, but was distributable as in case of intestacy, and that in any event, under the limitations governing the disposition of the residuary estate, the entire title was vested in the testator’s children by virtiie of the Rule in Shelley’s Case. Upon this theory the contention is made that Edwandi Abbott Holmes was entitled, in his separate and absolute right, from the time of his mother’s death, to one-seventh of the whole estate which has since been held and administered upon the assumption that it was subject to a continuing trust. This contention was not sustained by the learned judge who decided the case below, and from his order dismissing the petition the administratrix has uppealed.

It is argued that the words “rest and residue” were not used in this instance by the testator in the general sense of comprehending -every interest in his estate of which he had not made previous disposition in his will, but that they were intended to indicate only the residue in the hands of the executor after the investment of $100,000.00 in ground-rents, and that even if the interest in remainder in that fund is properly to be included in the residuary estate, the Rule in Shelley’s Case is effective, directly or by analogy, to vest a complete title in the children of the testator to that portion of the estate, because, as it "is asserted, the property is made to pass after the life estates to the same classes of persons who would taire if the respective life tenants were the absolute owners and died intestate.

In support of the first of these propositions it is pointed out that after providing for the investment of the $100,-000.00 fund the testator directed that all the rest and residue of his estate be 'divided into as many parts as he might have children living at the time of his death and that, after due equalization on account of marriage gifts and life insurance payments, each child should have one of the shares, “to be held by them during the term of tbeir natural lives respectively,” and it is urged that the testator could not have intended the interests in remainder in a fund which was to be invested for the benefit of his widow for her life or widowhood to be included in a residuary estate which was made subject to division among his children as of the time of his death.

The principle is elementary that a general residuary clause will be held to preclude intestacy as to any part of the estate, unless the dear intent of the will prevents such a construction. As the words “rest and residue” are in themselves comprehensive enough to include any interest in the estate of the testator not previously devised or bequeathed, “the safest course,” to use the language of Loud Eldo®, “is to abide by the words unless upon the whole will there is something amounting almost to demonstration that the plain meaning of the words is not the meaning of the testator.” Crooke v. De Vandes, 9 Vesey, 197; Hambleton v. Darrington, 36 Md. 445.

In Lavender v. Rosenheim, 110 Md. 153, it was said: “The abhorrence of Courts to intestacy, under a will, may be likened to the abhorrence of nature to a vacuum,” and that such a result will “never be reached if it can be avoided without violation of dearly controlling legal principles.” The opinion of Judge Peaece in that case quoted with approval the language of Loud Alva®ley, M. R., in Booth v. Booth, 4 Vesey, 407, as previously quoted by Judge Alvey in Dulany v. Middleton, 72 Md. 75, that : “Every intendent is to be made against holding a man to die intestate, -who sits down to dispose of the residue of his property.” In Barnum v. Barnum, 42 Md. 311, it is declared that there is “always a strong disposition in the Courts to construe a residuary clause so as to prevent an intestacy with regard to any part of the testator’s estate, unless there is an apparent intention to the contrary,” and it was held to be “immaterial how it happens that any part of the property is undisposed of — -whether by the death of a legatee, or by the failure of the testator to provide for all the events that may happen upon which the bequest may depend for its complete effect.” In that connection the statement of Sir William Grant, in Leake v. Robinson, 2 Meriv. 392, is quoted, that: “* * * it must be a very peculiar case indeed in which there can at once be a residuary clause and a partial intestacy, unless some part of the residue itself be not well given.”

In the case before us the terms of the will do not, in our judgment, require the construction for which the appellant contends and which would result in an intestacy as to more than half of the testator’s estate. We fully concur in the opinion expressed by Judge Burke below, that there is “no good reason why a partial intestacy should be forced upon the testator by giving to the words ‘all the rest and residue of my estate, real, personal and mixed’ used in the third item, the restrictive meaning which would work thait result.” When we consider that the provision referring to the $100,000.00 fund did not merely limit the widow -to a life interest, but contemplated that in the event of her re-marriage she was to receive but one-third of the income for life, it is evident that we should have to resort to a much narrower construction than the settled rule we have stated would permit, in order to hold that the testator did not intend the residuary clause to include the substantial interest in the fund remaining for the disposition after the primary and partial bequests were satisfied. While the direction as to the residue,requires that it be divided into as many shares as there were children of the testator living at the time of his death, it does not necessarily restrict the division to that particular period, or prevent the gratification of the general intent, clearly apparent from the whole will, that, except as to the home property, the entire estate of the testator should go eventually to his children equally for life with the remainders indicated.

The question raised as to the application of the Hule in Shelley’s Case to the limitations of the residuary clause has given us no difficulty. This rule is not favored in the law as it disregards the testator’s expressed intent. Hall v. Gradwohl, 113 Md. 297; Reilly v. Bristow, 105 Md. 332. It has been abrogated by statute as to instruments executed after May 31, 1912. (Acts of 1912, Chapter 144.) It is never applied except when the manifest purpose of the disposition is to vest the title, after the termination of the life estate, in precisely the same classes of persons to whom it would pass if the life tenant, dying intestate, were the owner of the entire interest. This condition existed in the case of Cook v. Councilman, 109 Md. 622, on which the appellant mainly relies. In that case the devise w-as to one for life and upon the death to his child or children and their heirs, and in the event of the death of the life tenant without leaving a child or children or descendant, then to such persons as would, under the laws of Maryland, inherit the property as his heirs, if he had died intestate and seized in fee. The limitations in the present ease are essentially different. The gift as to each of the testator’s children is to the child for life and after his death to his child or children then living, and to their heirs absolutely, but in the event of the death of the life tenant without issue living at the time of his death, then to those of the testator’s children who may then he living, to be held under the same limitations as the respective shares devised and bequeathed to them in the first instance. It is plain that, under the provisions as to the remainder at the expiration of any particular life estate, the property is not made to take the same course of descent and distribution it would follow if the life beneficiary held the absolute estate and died intestate. He is not made the “terminus or ancestor by reference to whom the succession is to be regulated.” Hall v. Gradwohl, su-pra; Fulton v. Harman, 44 Md. 263. Upon his death without issue the estate is not given to those who may be his heirs, or even to the heirs of the testator generally, but the remainder is expressly limited to the testator’s children then surviving. To such a limitation it is clear the Hule in Shelley’s Case does not apply.

The appellant’s intestate, as a life beneficiary under the residuary clause of his father’s will, was entitled to a due proportion of the income of the entire estate from the time of his mother’s death in 1884 until his own death in 1911, and this he appears to have regularly received; but according to the plain purpose of the will, he was not entitled absolutely to any part of the corpus of the estate, and the petition of his personal representative asserting such a right was properly dismissed.

Order affirmed, the costs to be paid out of the trust estate.  