The most basic principle, indeed, “the organizing principle of the American law of donative transfers is freedom of disposition.” Restatement (Third), Property (Wills and Other Donative Transfers) § 10.1, cmt. 9 (2003). Accordingly:
“American law does not grant courts any general authority to question the wisdom, fairness, or reasonableness of the donor’s decisions about how to allocate his or her property. The main function of the law in this field is to facilitate rather than to regulate. The law serves this function by establishing rules under which sufficiently reliable determinations can be made regarding the content of the donor’s intention. Id. at cmt. C.”
The role of the court in Maryland and elsewhere is to interpret the will in order to ascertain “the controlling intentions in the mind of the testator.”[1] The role of the Maryland Court is to facilitate the process of carrying out the testator or testatrix’s intention:
[1]Randall v. Randall, 85 Md. 430, ____, 37 A. 209, 210 (1897)(“It is a well-settled rule that in every case in which a will is to be construed the great object is to ascertain from the face of the paper the intention and design of the testator, which is to be carried into effect, unless opposed by some principle of positive law. By a careful examination of the language used in the will and looking to the surrounding circumstances at the time of its execution, we gather the controlling intentions in the mind of the testator.”) [2] Edgar G. Miller, Jr., “Construction of Wills,” § 9 (1927).“The cardinal canon around which all others centre is that the intention of the testator, (when ascertained from the whole instrument, or from the instrument as read in the light of surrounding circumstances existing at the date of its execution), must be given effect, if that intention does not antagonize or conflict with some other rule of law or of property. When the intention of the testator has become apparent to the court, it only remains to give it effect, unless it contravenes some fixed rule of law; and the court seeks to carry out and in so far as possible to give effect to that intention. The directions of the testator, if not contrary to, or doing violence to, any established principle of law, must of necessity control.”[2]
