Billingsley v. Bradley

Digges, J., delivered the opinion of the Court. John Carson, a member of the bar of Baltimore City, died during the month of April, 1883, leaving a last will and codicil, wherein, after providing for the payment of his debts and funeral expenses, and making specific bequests of certain personal chattels, he created a trust of all the rest and residue of his estate, the pertinent provisions of which are as follows: “Fourth: All the rest and residue of my entire estate of every sort and description, and wheresoever situate, I give and devise, absolutely and forever to Thomas M. Lanahan and my son John Carson, Jr., and their survivor, his heirs, executors and administrators, in trust as follows: “Fifth: In trust as to one-fourth thereof (save John’s insurance money) for my daughter Anne for life, for her sole and separate use, free of all marital right and control whatsoever, and after her death in trust absolutely for her children, subject as hereinafter stated. “Should Annie die without leaving a child or children living at her death, or should such child or children all die within twenty-one years of Annie’s death, then I give and devise said one-fourth to Mattie L., John and Bertha upon the same trusts, and the same extent, and in the same manner, as I have provided for them in the Sixth, Seventh and Eighth clauses of this my will. “Annie’s children to enjoy the interest and income of said one-fourth during said twenty-one years. “Sixth: In trust as to one other fourth thereof (save John’s insurance money) ’ for my daughter Mattie L., and her children, upon the same trusts, in the same manner, and to the same extent, with a like provision as to the interest and income during said ⁴¹⁴ twenty-one years, and with a like limitation over in favor of John, Annie and Bertha, and their children, as is provided in the Fifth clause of this my will; and Hattie’s estate and interest so limited over, if said limitation takes effeót, is to go as is provided, in the Fifth, Seventh and Eighth clauses of this my will, and upon the same trusts as therein provided. “Seventh: In trust as to one other fourth part thereof (including John’s insurance money) for my daughter Bertha, and her children, upon the same trusts, in the same manner and to the same extent, with a like provision as to the interest and income during said twenty-one years, and with a like limitation over in favor of Annie, Hattie L. and John, Jr., and their children, as is provided in the Fifth clause of this my will; and Bertha’s estate and interest so limited over, if said limitation takes effect, is to go as is provided upon the same trusts as are set forth in the Fifth, Sixth and Eighth clauses of this my will, and none other. “Eighth: In trust as to- the remaining fourth part thereof (save John’s insurance money) absolutely for my son John,' Jr., when he arrives at twenty-five years of age, to vest now, and the interest to be payable to him, but the principal not to be payable or saleable until the period aforesaid.” Codicil. “First: ■ The bequest of John’s insurance money which by the Third and Seventh clause of my said will I gave and devised to my daughter Bertha I hereby revoke and annul and in lieu thereof and of the conditional bequest thereof, and of my law- library to Bertha by said Third clause which said conditional bequest is also hereby annulled and revoked, I hereby give, devise and bequeath all John’s insurance money aforesaid to go- with and pass under the Fourth clause of my said Last Will and Testament so that-all my children share equally in the same. “Second: I authorize my executors and trustees from time to time hereafter (including the survivor ⁴¹⁵ of said trustees) at all times hereafter in their discretion and judgment to advance to each of any one of my said daughters and each of them such portion of the principal of my said estate coming to them separately as my trustees or their survivor shall deem proper. “Fifth: I make no provision for my grandson John • O. Naylor as I consider him sufficiently provided for.” The testator was survived by one son and three daughters, namely, John Carson, Jr., Hattie L., Bertha, and Annie. He also' left one grandson, John C. Naylor, the son of a deceased daughter, Sallie. His daughter Hattie married Frank de S. Benzinger, who predeceased her.

She died January 8th, 1896, leaving surviving her three children, Frank de S. Benzinger, Jr., John Carson Benzinger, and Annie B. Griesser, all of whom are now living. His daughter Bertha married George N. Webster, and died December 12th, 1893, leaving surviving her husband, who is now deceased, and one daughter, Bertha M. Bradley, now living. His daughter Annie first married a Hr. Billingsley, by whom she had one son, John C. Billingsley.

She married a second time William T. Hutchins, by whom she had no children, and died March 16th, 1930, leaving her husband surviving, and also two grandchildren, the children of her deceased son John C. Billingsley, namely, John Carson Billingsley and Dorothy M. Billingsley, both infants. The mother of these infants, Marie Billingsley, is also alive at this time. His son, John Carson, Jr., died about January 16th, 1892, intestate, and without issue, he having married one Annie C. Barkley, who subsequently married Thomas J. Lindsay and died about October 21st, 1927. On June 5th, 1930, the descendants of the testator’s childred, other than his daughter Annie, filed a bill of complaint against the two infant grandchildren of the daughter Annie, ⁴¹⁶ and'David S. Carter, substituted trüstee.

The prayers of the bill are: (1) That the court construe the fifth clause of the will of the said testator; and, if it be found by a true construction of said clause that the trust therein created came to an end upon the death of the said daughter Annie, (2) that a decree may be passed for the sale of the said real estate and' securities; (3) that a trustee may be appointed to make said sale; (4) that the proceeds of said sale,-together with the cash in hand, may be distributed among the persons entitled thereto according to' their respective rights and interests; and (5) for general relief. The defendants filed their answers, admitting the facts set forth in the bill, but disputing and denying the construction of the will as contended for by the complainants. The lower court construed the will in conformity with the complainants’ contention, and decreed that the property be sold for the purpose of partition among them. The appeal here is from that decree.

The two propositions contended for by the appellants are: First, that the provisions of the will creating and continuing the trust estáte are void as violative of the rule against perpetuities; and, second, that the words “child ’or children,” as used in the fifth clause of the will in respect to> the daughter Annie’s share; should be construed as including “grandchildren.” Considering these points in the order stated, first, Do the provisions of the will violate the rule against perpetuities? It is evident from the whole will that the testator, at the time of its drafting, had in mind this rule, and studiously attempted (we think successfully) to avoid its violation. By the fourth clause of. the will the testator gave and devised the legal title to the whole of his residuary estate to Thomas M. Lanahan and John Carson, Jr., “absolutely and forever, in trust” for the purposes following. He divided the trust estate into four equal parts, which equal parts are disposed of by the fifth, sixth, seventh and eighth items of the will.

By the fifth item one-fourth thereof was devised in trust for ⁴¹⁷ the daughter Annie for life, “for her sole and separate use, free of all marital right and control whatsoever, and after her death in trust absolutely for her children, subject as thereinafter stated.” The second paragraph of this clause provides: “Should Annie die without leaving a child or children living at her death, - or should such child or children all die within twenty-one years of Annie’s death, then I give and devise said one-fourth to Mattie L., John and Bertha upon the same trusts, and the same extent, and in the same manner, as I have provided for them in the Sixth, Seventh and Eighth clauses of this my will.” The third paragraph of this clause provides: “Annie’s children to enjoy the interest and income of said one-fourth during said twenty-one years.” It will thus be seen that in the first paragraph of the fifth clause his daughter Annie was. given a life estate in trust in one-fourth part of the residuary estate, and after her death absolutely for her children, subject to the conditions and contingencies contained in the second paragraph of said clause. It is true that the language used in the latter part of the first paragraph of this clause is, “And after her death in trust absolutely for her children, subject as hereinafter stated.” The words “in trust” do not apply to the absolute estate given to her children, but are intended to apply so- as to continue the trust for a subsequent period of twenty-one years from Annie’s death, and in further trust in the event the limitation over becomes effective, which limitation is that all of the children of Annie should die within the said period of twenty-one years. In other words, there was a suspension of the absolute enjoyment of the principal for the period of twenty-one years, during which time the devise to Annie’s children might be defeated by the death of all of said children. It is also clear that the testator recognized the possibility of question as to the right of Annie’s children to. the income of the one-fourth part of the residuary estate during the twenty-one-year period following Annie’s death; and to ob ⁴¹⁸ viate such question he expressly provided in the third paragraph of the fifth clause that Annie’s children should enjoy the interest and income from said one-fourth during said twenty-one years.

In the event Annie left no children at the time of her death, or all of her children died during the period of twenty-one years following her death, the one-fourth part of the residuary estate considered in the fifth clause was given and devised to the testator’s three remaining children, Mattie, John and Bertha, to be added to the one-fourth part similarly devised to> each of them by the sixth, seventh and eighth clauses of the will, upon the same trusts and in the same manner as provided in the fifth clause; that is to say, upon the death of Annie without children living at her death, or if all of her children died within twenty-one years after her death, this one-fourth part of the residuary estate would still continue in trust for the benefit of the testator’s surviving children, John, Mattie and Bertha, and their respective children. So that in no event could the trust continue longer than the life of the testator’s last surviving child plus twenty-one years. In other words, as to Bertha’s interest: She died in 1891, leaving one child, who still survives" and has survived her mother by more than twenty-one years. Therefore there is no' provision of the will for a contingency which would defeat the absolute title of Bertha’s child after the expiration of the said twenty-one years,'and she became at that time and is now entitled to the absolute possession thereof.

What we have said in respect to Bertha’s child applies to the children of Mattie, who' died in 1896. Twenty-one years thereafter would expire in 1917, and the one-fourth of the residuary estate devised to Mattie for life became an absolute indefeasible estate in her children in 1917.. The one-fourth of the residuary estate which went to the son John by the express terms of the eighth clause of the will vested in him at the testator’s death, but he was not entitled to the absolute enjoyment of the principal until he reached the age of twenty-five; which occurred shortly after the testator’s ⁴¹⁹ death. In respect to the one-fourth in which Annie was entitled to a life estate, she having died in 1930 without children living at the time of her death, the limitation provided for upon such contingency took effect, and this one-fourth vested absolutely in the surviving children of Bertha and Mattie, and the trust ended, because Mattie’s and Bertha’s children then held the property without any contingency which might defeat it being possible.

It thus appears that the trust created by the will must of necessity end at a period not more distant than twenty-one years after the death of the last surviving child of the testator. The second contention of the appellants is that the words “child or children” used in the will, and particularly in the fifth clause thereof in respect to the fourth in which Annie had a life estate, include not only Annie’s children, but her grandchildren. The chancellor concluded adversely to such a contention, holding that the grandchildren of Anne, the appellants here, wore not included. We are in accord with that decision.

There is nothing in the entire will and codicil which would indicate that the testator intended by the use of the words “child or children” to include grandchildren. On the contrary, the general intent, if any can be gathered from the will, indicates that the testator had in mind as the recipients of his bounty no descendant more remote than the children of his children. The popular conception of the meaning of the words “child or children” is, “immediate offspring”; that is to say, when we speak of A.’s children, the general, if not universal, acceptation is that we mean the immediate offspring of A. In Miller's Construction of Wills, sec. 85, p. 234, the author says: “In general: The legal construction of the word ‘children’ accords with its popular signification, designating immediate offspring and not more distant descendants. In all cases in which it has been extended to a wider range of objects, it was used synonymously with a word of larger import, such as the word ‘issue’ or ‘heirs’ or ‘descendants.’ ” ⁴²⁰ In section 88, p. 240, the learned author further states: “Whether or not a gift to the child or children of a person may include the descendants of a