Boutelle v. Boutelle

⁷¹ Henderson, J., delivered the opinion of the Court. Richard S. Boutelle, a man of wide business and financial experience who had been the operating head of the Fairchild Engine & Airplane Company until 1956, died testate on January 15, 1962. Item 2 of the will read as follows: “I give, devise and bequeath unto Mrs. Ellen Burnette Boutelle, my wife, all of my estate whether real, personal or mixed, of every kind or description to be held by her by the benefit of herself, and our children.” He was survived by his widow whom he had married in December 1957 and by two children, born August 3, 1960, the issue of the marriage. He was also survived by three children of his wife by a former marriage, whom he had legally adopted on November 19, 1958, and by two older children of his wife by a former marriage, whom he had not adopted.

The widow filed a bill for a declaratory decree construing the will, contending that she was entitled to the whole estate, and after appropriate proceedings as to parties, and full hearing, the Chancellor so declared. In reaching his conclusion he ignored testimony that had been offered as to declarations made by the testator of intent that the widow should take all, and based his decision upon the language of the will in the light of the surrounding circumstances. Since we agree with the Chancellor’s conclusion, we need not consider the question of admissibility of the declarations, or whether the words “our children” would include the adult step-children who had not been adopted. At the time of the execution of the will all of the children and step-children of the testator were residing with him.

He had had no legal training, but had discussed the matter of a will and a trust or trusts naming a Bank as trustee, with his stock broker and with a certified public accountant. On July 18, 1961, he dictated his will to a stenographer, using as a model a will prepared by a lawyer some years before, in which he had left everything to his first wife. He told the stenographer he wished to keep things “uncomplicated”. The present will is simple, and contains nothing of significance except item 2.

Item 3 simply appointed Mrs. Ellen Burnette Boutelle as his “executor”, with full powers of sale. It is obvious that he reposed complete confidence in his wife’s ability. ⁷² The contention of the appellants is that item 2 created a trust in favor of the widow and children. It is true that no technical words are necessary to create a trust, if the intention is clear. See Waesche v. Rizzuto, 224 Md. 573 , 583 and Sands v. Church, Etc., 181 Md. 536, 541 .

It is argued that the initial grant of the entire estate to the wife is limited or cut down by the clause “to be held by her for the benefit of herself, and our children”. But it is the general rule that an absolute gift is not reduced by subsequent language, in the absence of clear evidence of an intention to do so. See Miller, Construction of Wills, § 55 and cases cited; 5 Page, Law of Wills, § 40.5. See also Code (1957), Art. 93, Sec. 356, which states the same rule of construction, “unless it shall appear, by devise over or by words or limitation or otherwise, that the testator intended to devise a less estate and interest.” There are also manifest difficulties in the way of establishing a trust.

There is no reference to any life estate, or other limitation on the duration of the alleged trust, which might thus offend the rule against perpetuities, the rule of early vesting, and the presumption against intestacy. Moreover, the quantum of the beneficial interests of the wife and children is uncertain. There is no provision for survivorship or gift over. There are no powers of sale for purposes of disposition or