Blake v. Blake

Urner, J., delivered the opinion of the Court. The Orphans’ Court of Baltimore City decided that the appellants were without sufficient interest to caveat a codicil modifying a will under which they might become entitled to ⁵⁴⁰ share, as contingent remaindermen, in certain trust estates, and their petition for leave to intervene in and prosecute the caveat, previously filed against the codicil, by a caveator who thereafter desired to discontinue the proceeding, was accordingly dismissed. The record on this appeal from the court’s order presents also a question as to the right of the original caveator to dismiss the caveat in view of an agreement under which he filed it not only in his own behalf but for the benefit of the appellants and another contingent legatee, who were likewise concerned in having the codicil contested. But, unless the appellants have an interest which may properly be regarded as adequate for the purposes of such a proceeding, they are not in a position to complain of its abandonment by the caveator in whose name it was instituted.

The question as to the sufficiency of the appellants’ interest will therefore be first considered and determined. The appellants are grandchildren of George A. Blake, who died in 1926, leaving a will which he had executed in 1913. After devising and bequeathing the residuary estate in t-rust for the benefit of the wife and six children of the testator, during the life of his wife, who predeceased him, the will directed that the estate be divided into six equal parts, one of which should be transferred to each of his two sons, and the remaining shares held in further trust for his four daughters during their respective lives, with remainder to their surviving issue, and, in the event of the death of ■ any daughter without issue living at the time of her death, it was provided that her share of the trust estate should be divided among the testator’s children then living, “and the descendants then living of any deceased children, per stirpes and not per capita. * * *” In 1922 t-he testator executed the codicil against which the caveat was filed. It authorized' any one of his daughters who might die without issue to dispose by will of the trust estate held for her benefit.

By conferring such a power, the codicil subjected the devolution of the remainder interests in the trust estate provided for the testator’s daughters to that additional contingency, and one of the daughters died in 1929, leaving a will by which she exercised the power ⁵⁴¹ .and made a different disposition of the remainder in her portion of the trust estate from that which would have resulted under the original terms of the will. The effect of the codicil upon the contingent remainder being thus demonstrated, a -caveat to test the validity of the codicil was filed by a son .of one of the testator’s daughters, then living, in pursuance of the agreement with the appellants to which we have referred. The father of the appellants also joined in the agreement, but he has made no effort or proposal to become a party to the caveat proceeding. As the appellants will have no right of participation in the portion of the estate affected by the codicil unless they survive their father, the fact that he is still alive has an important bearing upon the question as to the sufficiency of their interest to invoke the protection which the caveat was intended to afford.

In Johnston v. Willis, 147 Md. 237 , it was held to be the general rule, deduced from previous decisions, of this court, that the right to caveat a testamentary instrument is available to any person having an interest in the testator’s property if the disputed disposition should be annulled, and that such a right exists whether the interest arises from relationship to the decedent, in cases of alleged intestacy, or from the provi•sions of a prior will. Safe Deposit & Trust Co. v. Devilbiss, 128 lid. 182; Home for the Aged v. Bantz, 106 Md. 147 ; Helfrich v. Yockel, 143 Md. 371 ; Brewer v. Barrett, 58 Md. 587 ; Munnikhuysen v. Magraw, 57 Md. 172 ; In re Estate of De Garmendia, 146 Md. 47 . Tim mtemte Aesetoíove •asserted in