estates under a will, especially as to residuary bequests.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 49, Wills, § 1551.]

7. PERPETUITIES-GIFTS TO CHARITIES.

A testamentary gift to an incorporated missionary society capable of taking gifts, "to be applied for the purposes of its organization," is not void for remoteness because of the rule against perpetuities.

[Ed. Note. For cases in point, see Cent. Dig. vol. 39, Perpetuities, § 60.]

8. CHARITIES-PURPOSES OF GIFT.

A testamentary gift to the "Church Home and Infirmary of Baltimore City, *** to endow a bed according to the custom and purpose of that institution," is valid.

[Ed. Note. For cases in point, see Cent. Dig. vol. 9, Charities, § 34.]

9. WILLS-PARTIAL INTESTACY.

Testatrix gave specific property and the residue of her estate to a beneficiary named, on condition that he should accept it within a specified time, and establish and maintain a charitable institution, and provided that if he declined to accept, the property should go to another named beneficiary on similar conditions, and declared that if neither of the beneficiaries should accept, the gift, including the gift of the residue, should be void, and the executor should convert the property into money, and pay a part of the proceeds to a person named, and then declared that "all the residue" of the estate, "not hereinbefore devised and bequeathed or made void," should be equally divided between missionary societies named. The beneficiaries named did not accept the gift. Hel, that there was no partial intestacy, the quoted phrases including all the estate not previously disposed of. [Ed. Note. For cases in point, see Cent. Dig. vol. 49, Wills, § 965.]

Appeal from Circuit Court, Carroll County, in Equity; Wm. Henry Forsythe, Jr., Judge.

Suit by Joshua W. Hering, executor of Sallie Longwell, deceased, against Andrew G. Ege and others, for the construction of the will of the deceased. From a decree construing the will, defendants appeal. Affirmed.

Argued before BOYD, C. J., and BRISCOE, PEARCE, SCHMUCKER, BURKE, WORTHINGTON, and HENRY, JJ.

F. Neal Parke and James A. C. Bond, for appellants. Thomas A. Murray, for appellee Hering. Randolph Barton, for appellee Domestic & Foreign Missionary Society.

SCHMUCKER, J. The single issue presented for our consideration by this appeal is the proper construction of certain portions of the last will of Miss Sallie Longwell, late of Carroll county. There is no dispute as to the facts of the case, all of which are set out in an agreement of counsel appearing in the record. Dr. Joshua W. Hering, the executor pamed in the will, having duly qualified as such, proceeded with the administration of the estate, in the orphans' court, to the extent of paying the debts of the deceased and the legacies given by the first 11 clauses of her will and passing his first administration account. He then filed, in the circuit court for Carroll county, the bill in the present case, for the purpose of procuring a construction of the twelfth to nineteenth clauses, inclusive, of

the will, and completing the administration of the estate under the jurisdiction of that tribunal. All parties claiming any interest under those clauses, and also the heirs at law and next of kin of the testatrix, were made defendants to the bill, and answered it and submitted their rights to the court for determination.

As the clauses of the will to be construed are somewhat voluminous, we will state only their purport and effect, with such quotations from their language as we deem pertinent, leaving it to the reporter to insert their full text in his report of the case. The twelfth clause of the will gives to "the Bishop of the Protestant Episcopal Diocese of Maryland and his successors in office a body corporate of the state of Maryland" a large brick mansion, with its curtilage of 15 acres, lying in the city of Westminster, and also a pecuniary legacy of $10,000, on condition that the devisee shall, within one year from due notice to it, accept the devise and bequest, and proceed to establish on the devised land, and permanently maintain, an institution designed for benevolent, charitable, or educational purposes only, to be permanently conducted and maintained under the auspices of said Protestant Episcopal Diocese of Maryland. The thirteenth clause provides that if the above devise of the mansion house and the legacy be accepted, and effective steps be taken to carry out its purposes, the residue of the estate should go to the same devisee for the same purposes. The fourteenth clause provides that if said corporation of the Protestant Episcopal Church of Maryland shall "decline to accept" the devise and bequest within the time limited, then the mansion house and legacy shall go to "the Presbytery of Baltimore" upon the same conditions, except that, in that event, the institution provided for is to be conducted under the auspices of the presbytery. The fifteenth clause is similar in terms to the thirteenth, except that it gives the residue of the estate to the presbytery of Baltimore on the compliance by it with the conditions of the fourteenth clause. The sixteenth clause declares that if "neither of said corporations [Protestant Episcopal or Presbyterian] shall accept said devise and bequest" so given to them, respectively, within the time limited, that the devise and bequest, including the gift of the residue of the estate, shall be void and of no effect, and directs the executor, in that event, to convert into money the subject of the devise and bequest, including the residue of the estate, and to pay, out of the proceeds, three legacies, which are enumerated in the next two clauses as follows: In the seventeenth clause the first of the three legacies is given to the Church Home and Infirmary of Baltimore City, being one of $5,000, to endow a bed according to the custom and purpose of that institution; and in the eighteenth clause the entire residue of the estate, "not hereinbefore

devised, bequeathed or made void," is equally divided between the Domestic & Foreign Missionary Society of the Protestant Episcopal Church in the United States of America and the Board of Foreign Missions of the Presbyterian Church in the United States of America, the portion taken by each corporation to be applied to the purposes of its organization. The nineteenth clause provides that if the Episcopal Diocese or the Presbytery of Maryland shall accept the gift of the mansion house and grounds, and at any time thereafter fail to effectively maintain thereon the institution provided for in the gift, or divert the property to other uses, or abandon it, the entire gift to such devisee shall become void, and the property which formed the subject of the gift shall go, in equal shares, to the two corporations mentioned in the eighteenth clause. As there was no acceptance, by either the Diocese or the Presbytery, of the devise and legacy given to them alternately, in the manner above mentioned, the limitation over, made by the nineteenth clause, never became operative, and that clause of the will requires no further consideration at our hands.

It

It appears from the record that there is no such corporation as the Bishop of the Protestant Episcopal Diocese of Maryland, but there is one known as "The Convention of the Protestant Episcopal Diocese of Maryland,” which formally declined, in writing, to accept the devises and bequests of the will, upon receipt of notice thereof from the executor, as did also the bishop of the said diocese, who is ex officio president of the convention. further appears that there is no such corporation as the Presbytery of Baltimore, but there is one known as "The Trustees of the Presbytery of Baltimore," which formally declined the devises and bequests of the will, upon receipt of notice thereof from the executor. The Church Home and Infirmary of Baltimore City and the Domestic & Foreign Missionary Society of the Protestant Episcopal Church in the United States of America and the Board of Foreign Missions of the Presbyterian Church in the United States of America are duly incorporated, and capable of taking the legacies given to them, respective ly, under the will, if those legacies are valid. Two codicils were made by the testatrix. By the first codicil a few small legacies were given to persons therein named, but by the second one all of those legacies were revoked, and no others given, so that the one codicil annulled the other, and the will comes before us for construction as if no codicil at all had been made.

The case having come to a hearing below in due course, the court passed the decree appealed from, in which it determined that, by the true interpretation of the will, the devise and bequest thereby made, respectively to the Church Home and Infirmary of Baltimore City, to the Domestic & Foreign Mis

sionary Society of the Protestant Episcopal Church in the United States of America, and to the Board of Foreign Missions of the Prebysterian Church in the United States of America are valid, and have now become effective through the declination of the prior legatees, and that the said corporations are capable in law of taking and receiving them. The decree also directed that the further administration and the distribution of the estate be made accordingly, by the executor, under the direction and supervision of the circuit court. We think the learned judge below arrived at the correct conclusion as to the true meaning and operation of the will in question. The contents of the will plainly disclose the purpose of the testatrix, who was an aged spinster, with no relatives nearer than cousins, to devote her entire estate to the promotion of education, charity, and religion. By the clauses of her will preceding the twelfth she had already given eight separate pecuniary legacies, amounting to $31,000 in the aggregate, to religious or educational institutions. By the twelfth and later clauses, of which we have stated the substance, she made detailed and careful provisions for the application of the residue of her estate to similar purposes. The only provision made by the will for relatives was one contained in the second clause for the benefit of her mother, in the event of her surviving the testatrix. As the mother predeceased the testatrix that provision never became operative.

It is equally clear to our minds that, by the clauses of her will now in controversy, the testatrix, for the purpose of carrying out the general intent of her will, provided a series of independent alternative or substitutional devises and bequests, so that her purposes might not fail of execution by the neglect or refusal of one, or even two, of the associations which she had selected to reIceive and utilize her bounty. In 2 Jarman on Wills (page 1645) it is said that it cannot be doubted that "an executory gift, made to take effect on the prior devisee's neglect or refusal to accept the devise or perform some other prescribed act, would take effect, notwithstanding the object of the prior gift never happens to come into existence; such a contingency being implied and virtually contained in the event described." And this court, speaking through the late Chief Judge Alvey, in Pennington v. Pennington, 70 Md. 436, 437, 17 Atl. 329, 331, 3 L. R. A. 816, said: "The principle is that, as the preceding executory or contingent limitations have failed to arise or take effect (and whether it be by the death of the devisee, in the lifetime of the testator, or the nonexistence of such devisee, the consequence is the same), the remainder over will nevertheless take effect, the first estate being considered only as a preceding limitation, and not as a preceding condition to give effect to the subsequent

limitation.

* For, as was declared

by Lord Hardwicke, in Avelyn v. Ward, 1 Ves. Sr. 420: If the precedent limitation, by what means soever, is out of the case, the subsequent limitation takes place.'" For a similar statement of the law on this subject, and reference to the cases supporting it, see 24 A. & E. Encyl. of Law, 453.

Applying the principle, thus clearly stated, to the case before us, and treating the two gifts made by the twelfth, thirteenth, fourteenth, and fifteenth clauses of the will as preceding limitations, as the testatrix doubtless intended them to be, to the three subsequent gifts over, made by the sixteenth, seventeenth, and eighteenth clauses, and not as preceding conditions to give effect to those subsequent gifts, we have the precise situation to which the principle is intended to apply. The two earlier alternative gifts having failed to take effect (whether by the neglect or refusal of both devisees to accept the gifts offered them, or by the nonexistence of one devisee and the failure of the other to accept, is immaterial), the subsequent gifts over to the Church Home and Infirmary and the two missionary societies take effect. Both the general intent of Miss Longwell to devote her entire estate to charitable, religious, and educational purposes and her particular intent to provide, by substitutional gifts over, against a failure of any portion of her plans through the inaction or nonexistence of the devisees of her first choice are so plainly manifested by her will as to render especially appropriate to this case what we have said in Re Stickney's Will, 85 Md. 102, 36 Atl. 654, 655, 35 L. R. A. 693, 60 Am. St. Rep. 308: "While in the books there may be found much learning, and many nice distinctions, in the law relating to conditions precedent and subsequent, yet in the construction of wills we should constantly keep in mind the great object in cases like this; which is, to ascertain the testator's intention, and having discovered that, to declare and enforce it if consistent with the rules of law. The question as to whether certain words create a condition precedent or subsequent is generally one of intention, and this is especially so when the condition is annexed to a devise or bequest.

* Courts are averse to construing conditions to be precedent when they might defeat the vesting of estates under a will (Pennington v. Pennington, supra), and especially is this so in regard to residuary bequests (Dulany v. Middleton, 72 Md. 75, 19 Atl. 146)."

The contentions made on the learned and elaborate brief of the appellants, however sound they may be as legal propositions, should not, in our opinion, be permitted to control the present case. We have already adverted to, as unsound, the contention that the first and second gifts, made by clauses 12 to 15, inclusive, of the will, should be considered as conditions precedent, to give ef

fect to the limitation over to the Church Home and the two missionary societies, and have stated that, in our opinion, those earlier gifts should be regarded as preceding executory or contingent limitations of the property, given by them within the meaning of the authorities cited by us, and that their failure, for any reason, to take effect did not render inoperative or void the subsequent limitation over of the same property.

Nor can we yield our consent to the appellants' next contention that the gifts over to the Church Home and the missionary societies are void as being too remote, because of the rule against perpetuities. It is stated in the agreement of facts appearing in the record that all three of those legatees are duly incorporated, and capable of taking the gifts made to them, respectively, under the will, if they have been validly given and are sustainable at law. The legacies to the two missionary societies, which are foreign corporations, having been distinctly given to be used and applied by each corporation for its corporate purposes, belong to a class which have frequently been sustained by this court. Church Extension Socy. v. Smith, 56 Md. 389; In re Stickney's Will, 85 Md. 79, 36 Atl. 654, 35 L. R. A. 693, 60 Am. St. Rep. 308; Woman's For. Miss. Socy. v. Mitchell, 93 Md. 199, 48 Atl. 737, 53 L. R. A. 711.

We also think that the gift to the Church Home and Infirmary "to endow a bed ac cording to the custom and purpose of said institution" was a valid one. The mere fact that it was, by the terms of the will, to be applied to a particular, clear, and well-defined object, plainly within the sphere and function of the institution, has been several times held by us not to avoid a gift which would have been good if it had been made to the same institution for its general corporate purposes. Eutaw Baptist Church v. Shively, 67 Md. 494, 10 Atl. 244, 1 Am. St. Rep. 412; Halsey v. Convention of P. E. Church, 75 Md. 275, 23 Atl. 781; Hanson v. Little Sisters of the Poor, 79 Md. 434, 32 Atl. 1052, 32 L. R. A. 293; Woman's For. Miss. Socy. v. Mitchell, supra.

The record before us does not, in our opinion, present a state of facts falling within the appellants' third contention that “if the rejection of a part of a will on account of its invalidity destroys the general testamentary purpose the void and valid portions will both fail." There has been no rejection of any part of the will in this case.

The appellants' final proposition is that a partial intestacy results from the inadequacy of the eighteenth clause of the will to pass the entire residue of the testatrix's estate. The description of the subject of the gift there made is "all the residue and remainder of my entire estate, not hereinbefore devised and bequeathed or made void as aforesaid." This language may be regarded as not being exact or felicitous; but, in view of the evident general intention of the testatrix to

devote her whole state to the worthy objects already adverted to, and the manifest efforts made by her not to die intestate as to any part of her property, the description there adopted by her must be held to have been adequate for the purpose for which it was obviously intended, and to have included all of her estate which had not been disposed of by the previous clauses of her will.

The appellants' brief, creditable as it is to its authors, presents neither any rule of interpretation nor principle of law preventing us from giving full effect to the generous and worthy purposes which controlled the testatrix in disposing of her estate, and we will affirm the decree appealed from. Decree affirmed, with costs.

(108 Md. 317)

BARRON et al. v. SMITH. (Court of Appeals of Maryland. June 25, 1908.) 1. STATUTES-REPEAL OR "AMENDMENT."

Acts 1908, c. 118, § 1, providing that Code Pub. Gen. Laws 1904, art. 93, § 205, is thereby repealed, so far as it applies to the city of Baltimore, is a partial repeal, and not amendment within the provision of the Constitution that no law shall be amended by reference to its title or section only.

an

[Ed. Note.-For other definitions, see Words and Phrases, vol. 1, pp. 368–370; vol. 8, pp. 7573-7574.]

2. SAME TITLES.

Const. art. 3, § 29, providing that every law shall embrace but one subject, which shall be described in its title, is not contravened by Acts 1908, c. 118, entitled "An act to repeal Code Pub. Gen. Laws 1904, art. 93, § 205, title "Testamentary Law'; subtitle 'Inventory and List of Debts,' so far as said section applies to the city of Baltimore, and add a new section to Code Pub. Loc. Laws, art. 4, title 'City of Baltimore,' subtitle Register of Wills,' to follow section 354, and to be designated as section 354a"; as the portion of the title which refers to the repeal of the section of the Public General Laws can be taken to aid in throwing light on the subject to be dealt with in the new section to be added to the local code for Baltimore; and the section repealed, in part, providing for the appointment of appraisers of the estates of decedents for the entire state either by the orphans' court or the register of wills, and the new section, in providing that the register of wills shall exclusively exercise the power of appointment for Baltimore, and in prescribing the number of appraisers and their duties and compensation, being germane to the subject as indicated by the title.

3. EXECUTORS AND ADMINISTRATORS-NUMBER OF APPRAISERS.

It having been the practice from time immemorial for two persons to appraise the estate of a decedent, Acts 1908, c. 118, § 2, providing that the register of wills of Baltimore shall appoint four "general" appraisers to appraise all estates under administration in that city, will be construed not as intending that all four appraisers shall serve in the appraisement, but that from the four general appraisers so appointed two shall be designated by such register of wills to serve in each case.

Appeal from Circuit Court No. 2 of Baltimore City; James P. Gorter, Judge.

Suit by Joseph Barron and another against Bart. E. Smith, register of wills. From an

70 A.-15

adverse decree, complainants appeal. Affirmed.

Argued before BOYD, C. J., and BRISCOE, PEARCE, SCHMUCKER, BURKE, WORTHINGTON, and HENRY, JJ.

William S. Bryan, Jr., for appellants. Isaac Lobe Straus, Atty. Gen., for appellee.

HENRY, J. This is an appeal from a suit in equity, brought by the appellants, Joseph Barron and Emil H. Goetzke, in circuit court No. 2 of Baltimore City, against Bart. E. Smith, register of wills of said city, the appellee, praying that the defendant may be enjoined from carrying into effect the provisions of chapter 118 of the Acts of 1908 of the General Assembly of Maryland. The bill of complaint, the demurrer thereto, the agreement of counsel, were all filed on the same date, and the avowed object of the suit is to have this court decide upon the validity of the aforesaid chapter 118 of the Acts of 1908.

The bill of complaint, with the amendment thereto, alleges that the said Joseph Barron and Emil H. Goetzkę are each of them a taxpayer of Baltimore City, and that for a long time past they have been appointed and selected by the orphans' court of Baltimore City as the persons to whom shall be issued the warrants for the appraisal of the estates of deceased persons under the provisions of sections Nos. 204 to 213 of article 93 of the Code of 1904, and that a great number of such warrants are now in their hands unexecuted, but which will shortly and in due course be executed unless the said orators are interfered with by the defendant. The bill then recites the passage of chapter 118 of the Acts of 1908, and states that the said defendant threatens to appoint, and will attempt to appoint under the provisions of said chapter 118 of the Acts aforesaid, four appraisers, who will attempt to interfere with the plaintiffs in the appraisement of the estates of deceased persons for which warrants have been issued, as well as in the appraisement of estates of deceased persons for which warrants may hereafter be issued to the said plaintiffs. The bill alleges that the said chapter 118 of the Acts of 1908 is invalid on account of its defective title, and also be cause the said act is unintelligible and impossible of execution, and also because it is in conflict with the Constitution of the state of Maryland. The bill also sets forth in full rule No. 10 of the orphans' court of Baltimore City, which, it is conceded, was passed by virtue of proper statutory authority, and is the only regulation prescribing the compensation of appraisers in Baltimore City, the first section of which, being the only one pertinent to the question at issue, reads as follows:

"For the time and labor by them, necessarily occupied and expended in and about the inspection, valuation and appraisement of the goods, chattels and personal estate of a de

cedent and the making of an inventory thereof in conformity with the requirements of the statute law the appraisers shall be entitled to compensation as follows; that is, to say-for every day, or fraction of a day, necessarily occupied in reviewing, examining and valuing the articles to be included in the inventory, exclusive of the time employed in writing out the inventory in form to be delivered by them to the executor or administrator in order to its return to the proper officer, as required by law, they shall be entitled to charge and receive from the executor or administrator so served, three dollars each; and for the preparation of the said inventory in form for delivery and return, as aforesaid, they shall be entitled jointly to charge and receive from the same, ten cents for every one hundred words thereof, including necessary recitals and certificates, to be divided between them in equal shares." To the bill of complaint the defendant filed a demurrer, alleging that it is insufficient in law because chapter 118 of the Acts of 1908 is a valid and effective act of the General Assembly of Maryland. An agreement between counsel was filed in the case, waiving any objection to the suit because brought in equity instead of in an appropriate action of law. The demurrer to the bill of complaint having been sustained by the court (Gorter, J.), from the order sustaining the demurrer and dismissing the bill the plaintiffs entered an appeal to this court. Chapter 118 of the Acts of 1908 reads in full as follows:

"An act to repeal section 205 of article 93 of the Code of Public General Laws (as said section stands in the Code of 1904), title "Testamentary Law'; subtitle, 'Inventory and List of Debts,' so far as said section applies to the city of Baltimore, and a new section to article 4 of the Code of Public Local Laws, title 'City of Baltimore'; subtitle 'Register of Wills,' to follow section 354 and to be designated as section 354-A.

"Section 1. Be it enacted by the General Assembly of Maryland, that section 205 of article 93 of the Code of Public General Laws title, "Testamentary Laws,' subtitle, 'Inventory and List of Debts' be, and the same is hereby repealed so far as the same applies to the city of Baltimore.

"Sec. 2. And it be enacted that a new section be and the same is hereby added to article 4 of the Code of Public Local Laws, title, 'City of Baltimore,' subtitle, 'Register of Wills,' to be designated as section 354a, to immediately follow section 354 of said article and to read as follows:

"354a. The register of wills of Baltimore City shall immediately after the enactment of this bill into law appoint four general appraisers to appraise the goods, chattels and personal estate of all estates under administration in the orphans' court of Baltimore City, who shall serve the entire term of the present register of wills unless their

places shall become vacant by removal from cause, death, resignation or otherwise; and thereafter, when any other register shall be elected or appointed, he shall in like manner appoint four appraisers for his full term of office. The said appraisers shall appraise the goods, chattels and personal estates of all decedents under administration in the orphans' court of Baltimore City, and shall in each case make the charges therefor now allowed by law and certify the same to the register of wills; they shall receive an annual salary of sixteen hundred dollars each, to be paid by said register out of the fees of the office returned by said appraisers. The said register shall keep an accurate account of all the monies received for such appraisement, and shall account for and pay the same except the amount required to pay the salaries of said appraisers into the State Treasury, as he is now required by law to account for and pay other monies for which he is acaccountable to the state.'

"Sec. 3. And be it enacted that this act shall take effect from the date of its passage."

The appellants contend that this act is a nullity for the following reasons: (1) That the first section of the act is in effect an amendment of section 205 of article 93 of the Code of Public General Laws, and therefore could not be made by a mere reference to the section only. (2) That the title of the act is defective as being in conflict with section 29 of article 3 of the Constitution of the state, which provides, in part, that "every law enacted by the General Assembly shall embrace but one subject, and that shall be described in its title." (3) That the act is unintelligible and impossible of execution.

Concerning the first of the objections to the validity of the act, we cannot agree with the argument of the appellants' counsel. The insertion of additional provisions in the body of a section, the expunging of phrases, clauses, or sentences therefrom, the alteration or substitution of words by mere reference to the place in the old law where the change should be introduced, would require an examination of the former act and a comparison with it of the new act, in order to understand the change, entailing confusion and uncertainty, particularly after repeated amendments in such manner, when it would be difficult to determine the state of the law. It was to guard against such methods of amendment as this that the constitutional requirement was adopted, providing that "no law, or section of law, shall be revived or amended by reference to its title or section only; and it shall be the duty of the General Assembly in amending any article or section of the code of laws of this state, to enact the same as the said article or section would read when amended." Sutherland on Statutory Construction, § 131; Cooley's Constitutional Limitations, § 181. The first section of chapter 118 of the Acts of 1908 is, in our judgment, a partial repeal of the existing law,