Maryland follows the plain meaning rule. This rule is also referred to as the rule against “disturbing a clear meaning”[1] or the “no extrinsic evidence rule.”[2] The plain meaning rule seeks to ascertain the testator or testatrix’s intention from the plain meaning of the language of the will:
“Obviously the most simple and natural way to ascertain what a testator’s or grantor’s intention was, is to read what he has written, because what he has written was designed by him to express that intention. Just as he has written in his will, it must stand. What he meant to say must be gathered from what he did say therein, as viewed from the standpoint he then occupied. The intention which controls in the construction of a will is not the presumed intention of the testator, but the expressed intention. The question is not what the testator meant, as distinguished from what his words express; but simply what is the true meaning of his words; not merely what he meant, but what his words mean.”[3]
The first rule of will construction in Maryland is the plain meaning rule or the no-extrinsic evidence rule. The plain meaning rule states that the court should ascertain and effectuate the testator’s intent as expressed by the actual language of the will. Emmert v. Hearn, 309 Md. 19, 23 (1987). Thus, divining the testator’s intent is first limited to the four corners of the will and the language found therein. Reedy v. Barber, 253 Md. 141, 148 (1969). The court cannot contemplate evidence extrinsic to the document to determine that the intent of the testator is different than what the testator wrote in his or her will. Edgar G. Miller Jr., “The Construction of Wills in Maryland,” § 40 (1927)(stating that extrinsic evidence is not admissible to show that a testator’s intent was different from that which his will discloses)(citing Farmer v. Quinn, 105 A. 763, 765-66 (Md. 1919)).
The historical justifications for the plain meaning rule are murky. Modern justifications for the rule include: (1) fear of evidence fabrication; (2) possibility of fraud; (3) a concern that the decedent relied on the language used in the will; (4) that extrinsic evidence is unattested and therefore violates the will statute. Andrew W. Cornelison, “Dead Man Talking: Are Courts Ready to Listen? The Erosion of the Plain Meaning Rule,” 34 Real Prop. Prob. & Tr. J. 811, 815-817
(2001).
The focus on expressed intention rather than on actual intention can lead to strained, and perhaps unfair, will interpretations. In Emmert v. Hearn, 309 Md. 19, 522 A.2d 377 (1987), the court refused to consider extrinsic evidence from a scrivener (and from a legatee who would testify against his pecuniary interest) that the phrase “personal property” was meant by the testator to only include tangible personal property and was not meant to include corporate stocks, bonds, and bank accounts. The court held that the phrase “personal property” has a plain, established meaning and that extrinsic evidence could not be introduced to contradict that meaning. The Maryland Court’s ruling rendered meaningless a pour over provision in the will directing the residue to an inter vivos trust by eliminating the residue.
This tension between stated and actual intention underlies the ruling in Veditz v. Athey, 239 Md. 433, 212 A.2d 115 (1965). In Veditz the testatrix had a will and two codicils. The first codicil added a devise of real property to her favorite niece. The second codicil made no reference to the first codicil but altered the section of the will that was amended by the first codicil to include the devise. The second codicil made no provision for the real estate to the niece. The Court held that the second codicil revoked those provisions in the will (including the amendment by the first Codicil) so that the niece did not receive the real property. The trial court refused to permit testimony to show that this was not the testatrix’s intention, and that testimony was not accepted as evidence. The Court of Appeals upheld the exclusion of that evidence:
“It is true, as a general legal principal, that a word used in a testamentary document does not necessarily have a fixed and unalterable meaning; the testator is entitled to use words as he pleases to make his meaning clear. Wigmore, Evidence 3rd Ed. §§ 2461, 2462. ‘Even where technical words are used, though the testator will be ordinarily presumed to have used them in their legal sense, a different meaning will be given to them when the context clearly indicates that such technical import would defeat his manifest intention.’ Albert v. Albert, 68 Md. 352, 366, 12 A. 11 (1888). This principal is only a corollary of the basic doctrine that the testator’s intent, when clearly expressed in a testamentary document must prevail. At 445.”
In Veditz, the court below had held that the proffered testimony should have been excluded:
“[W]here the intention of the testator clearly appears from the words used in the testamentary documents, extrinsic evidence that something different was meant than that which the language imports is inadmissible. The court ruled further that no latent ambiguity exists in the testamentary documents in this case. At 441.”
The Veditz decision was entered by a 5-3 decision of the split court. The dissent held that a rule of construction (the plain meaning rule) should not override a court’s essential goal of determining the intention of the testator:
“The majority, by applying a rule of construction rather than the process of interpretation in construing the Last Will and Testament of Matilda Held, deceased, and the codicils thereto, have, in my opinion, unwittingly rewritten the testamentary disposition of a one-half interest in the home of the testatrix. To use an apt colloquialism, they have put the cart before the horse. The interpretation of a will involves the process of ascertaining, from a reading of all the testamentary writings, and, if necessary, a consideration of extrinsic evidence pertinent thereto, the meaning or intention of the testator as expressed in the will and codicils … A rule of construction, on the other hand, since it seeks to assign an intent to the words used, necessarily involves an attempt to formulate a permissible intent for the testator by the use of presumptions. This process should not be resorted to, however, unless the intention of the testator as to a particular devise or bequest is doubtful or uncertain and therefore inconclusive.” Veditz, at 450.”
Garner v. Garner, 167 Md. 423 (1934) involved two more or less identical wills. The first will was executed many years before the decedent’s death and left all of his property to his wife. The second will had the same disposition to the wife although it did not explicitly revoke all prior wills. A brother of the decedent brought an action to caveat claiming that the second will was the product of a fraud whereby the decedent had wanted to change his will to provide for some charitable bequests, then to bequeath the rest of the property one-half to the surviving spouse and one-half to the caveators. The caveators alleged that the wife fraudulently procured his execution on the will by telling the testator that it had accomplished his purpose when, in fact, it simply restated the bequest of all property to the wife. Apparently, the testator could not read English. In Garner the issue was whether the second will could be attacked as to its dispositional provisions yet operate to revoke the first will by somehow showing that the testator had the intention to revoke the first will. The court held that parol evidence could not be used to establish the revocation of the earlier will:
[1] 9 Wigmore, Evidence § 2461 (“Rule Against ‘Disturbing a Clear Meaning’ or Forbidding Explanation Except of Ambiguities: History”). [2] John H. Langbein & Lawrence W. Waggoner, “Reformation of Wills on the Ground of Mistake: Change of Direction in the American Law?” 130 U.PA.L.Rev. 521, 521 (1982)(“[The plain meaning] rule, which hereafter we will call the ‘no-extrinsic-evidence-rule,’ prescribes that courts not receive evidence about the testator’s intent ‘apart from, in addition to, or, in opposition to the legal effect of the language which is used by him in the Will itself.'” Internal citations omitted). [3] Miller § 10 (“The Expressed, Not Presumed, Intention”).“Parol evidence might, of course, be introduced to establish fraud in procurement of execution of a will, and might cause the avoidance of a will or of some of its dispositions … But avoidance of a written form of disposition, and installation in its place of another, intended disposition, are different things, which call into play quite different requirements of proof. Only in a writing can a testator’s revoking disposition be found, and in the place of an avoided written disposition nothing could be inserted by parol. Garner, at 428.”
