Appeal from the Circuit Court No. 2 of Baltimore City; Sodaro, J.
Brune, C. J., and Henderson, Hammond, Horney and Sybert, JJ. Horney, J., delivered the opinion of the Court.
This appeal involves a construction of the last will and testament of Erma Bruce Davis, deceased.
The testatrix, who died on January 11, 1960, after providing for her interment and the payment of her debts, bequeathed certain government bonds, silver, china and glassware, linens and jewelry to a godchild, a grandniece of her husband and several friends. That clause of the will requiring interpretation provided in terms as follows:
"Item 5. I hereby give and bequeath to my dear friends, Robert R. Lee and Lena King Lee, his wife, all of my Stieff silverware; my crystal and amber blue glasses; one pair of pure jade earrings; and the right to select any pieces of personalty not specifically bequeathed herein, absolutely."
The residuary clause devised and bequeathed the residue and remainder of her estate to her "beloved husband" (for life with power to dispose of it either in his lifetime or by will), but, upon his death, or in the event he predeceased her, the testatrix directed a sale of the residue and the distribution of the proceeds, after the payment of $500 to the Young Women's Christian Association of Baltimore City, to her "beloved godchild." The husband of the testatrix predeceased her on October 27, 1958; and one of the legatees under item five (Robert R. Lee) predeceased the other legatee (Lena King Lee), who is the appellant here. The other parties in interest and the real appellees are the Y.W.C.A. and the infant godchild (Clarence O. Lewis, III).
Upon receiving a copy of the will after it had been probated, the appellant, as the surviving legatee under item five, sent the executor (Dallas F. Nicholas) a list of the property (not specifically bequeathed to other legatees) she had selected under the terms of the will. The list of thirty-two selections encompassed practically all of the property in the estate of the deceased and included, among other items, the leasehold property of the testatrix, her automobile and her bank accounts. The executor, in rejecting all of the selections, asserted that some of them were not personalty and that the testatrix had neither contemplated nor intended that such items would be included in the list of selections.
The case was submitted to the chancellor on an agreed statement of facts, in which, in addition to those hereinbefore related, it was further stipulated that when the will was executed, the leasehold property was owned by the testatrix and her husband as tenants by the entirety, and that the household furniture and equipment, with the exception of the items of a personal nature listed in the inventory, had been jointly acquired and were jointly owned on the date the will was made.
The stipulations do not indicate whether the automobile and bank accounts were also held jointly. Some of the specific bequests (excluding jewelry) were appraised at $1431.24, the automobile at $300, the household furniture and equipment and jewelry at $1449.50, and the leasehold property at $5500, all of which together with the cash on hand and in banks in the sum of $4729.25, totaled $13,409.99.
The lower court declared that the word "personalty" should be interpreted to include only other similar objects, such as "glasses, earrings, etc." And the surviving legatee under item five appealed. While there may be some doubt -- as one of the appellees pointed out in the lower court -- with regard to the power of the appellant to exercise alone the right to select granted to her and her husband now deceased, we shall assume without deciding, since no point was made of the question on appeal, that the appellant had such power and proceed to decide the question presented.
Since the problem presented stems from the phraseology of the will, the question is what was the intention of the testatrix when, in addition to bequeathing certain silverware, glassware and jewelry to the named legatees under item five, she further provided that the legatees should have the ...