Brown v. Koffman's Admrs.

Thomas, J., delivered the opinion of the Court. Article eight of the will of George Brown is as follows: “In case my son Alexander D. Brown, shall leave a wife surviving him at the time of his decease, then and in that event, I will, order and direct, that the trustees hereinbefore named in this my will, and their successors shall pay out of the interest, rents or net income, thereafter arising, from the two-fourteenths parts or shares of the aforesaid rest, residue and remainder of my estate and property, given in trust, for the use of my said son Alexander and his descendants, as particularly mentioned in the above article sixth of this, my will, to the wife or widow of my said son, so surviving him, as aforesaid, the sum of six thousand dollars a year, during her life, said annuity to commence from the time of the death of my said son,' and to be paid quarter-yearly. And in case my daughter, Grace Ann, shall leave a husband surviving her, at the time of her decease, then, and in that event, I will, order and direct that the said trustees and their successors, shall pay out of the interest, rents or net income thereafter arising, from the two-fourteenths parts or shares of the aforesaid rest, residue and remainder of my estate and property, given in trust for the use of my said daughter Grace Ann and her descendants, as particularly mentioned in the aforesaid article sixth of my will, to the husband of my said daughter so surviving her as aforesaid, the sum of six thousand dollars a year, during his life; said last mentioned annuity, to commence from the time of the death of ⁴⁰⁰ my said daughter, aud to he paid quarter-yearly. And in case my two grandchildren, Elizabeth Graham and George Brown Graham, shall both die before attaining the age of twenty-one years, and their father, William IT.

Graham, be then living, then, and in that event, I will, order and direct that the said trustees and their successors, shall pay out of the interest, rents or net income thereafter arising, from the two-fourteenths parts or shares of the aforesaid rest, residue and remainder of my estate and property, given in trust for the use of my said two grandchildren, Elizabeth and George B. Graham, as particularly mentioned in the aforesaid article sixth of my will, to the said Wiliam H. Graham, the father of the said Elizabeth and George B. Graham as aforesaid, the sum of six thousand dollars a year, dtiring his life— said last mentioned annuity, to commence from the time of the death of the survivor of my said two grandchildren dying under the age of twenty-one years as aforesaid, and to be paid quarter-yearly.” Alexander D. Brown died on the 19th of March, 1892, leaving a widow, Laura J. Brown, who in 1907, married Charles H. Koffman and died on the 17th of June, 1908. The annuity was paid to her by the trustees under George Brown’s will and their successors up to the 19th of March, 1908, and this appeal is by the trustees from an order of the Circuit Court No. 2 of Baltimore City, passed on the petition of the administrators pendente lite of her estate, requiring them to pay to said administrators the sum of fourteen hundred and fifty dollars on account of said annuity from the 19th of March, 1908, to the time of her death on the 17th of June, 1908. The appellants rely upon the well established rule that annuities are not apportionable, while the appellees contend, and the learned Court below held, that it is evident from the provisions of the will that the testator intended the annuity as a provision for the support and maintenance of his son’s widow, and therefore intended it to be apportioned. ⁴⁰¹ The will, so far as it is set out iu the record, does not direct that the annuity shall he apportioned, or state that it is for the support and maintenance of the annuitant, hut counsel for the appellee base their contention on the fact that -in the case of his son George, to whom the testator gave a poition of his estate absolutely, no provision, was made for his wife in case she survived him, while in the case of his son Alexander, whose share was left in trust for his use during life only, with remainders to his descendants, provision was made for his widow, as evidencing the intention of the testator to thereby provide for her support and maintenance and that the annuity should be apportioned. Similar provisions were made for the surviving husband of the testator’s daughter, and for the father of the testator’s two grandchildren, in case they died before attaining the age of twenty-one years and he survived them, .and if the faGt that the testator did not give to his son Alexander any part of his estate absolutely indicates that he intended the annuity co his widow to be apportioned, it would follow that he also intended the other annuities to be apportioned, as he did not give to his daughter or to his grandchildren absolute estates in their shares; yet to hold these annuities apportion-able, in the absence of some clearer evidence that the testator intended them to be apportioned', would extend the exceptions to the rule beyond the limit to which any well considered case has gone.

In the ease of Hay v. Palmer, 2 P. Wms. 501, the annuity was expressly for the maintenance of the daughter of Sir Thomas Palmer until she became eighteen years of age or married, and the Master of the Eolls held that she was entitled to the annuity to the day she became of age, it being “for the daily support of the infant.” In the case of Reynish v. Martin, 3 Atk. 331, Elizabeth Philips by her will gave to her eldest daughter, Martha Philips, all her real estate in fee, “subject to such charges that shall be thereinafter expressed,” and then made the following provision for her daughter Mary; “and it is my will ⁴⁰² that my said daughter Martha shall pay to my, said daughter Mary the sum of 30£ yearly during Mary’s continuing sole and unmarried, by fifteen pounds each May day, and All Saints day;” and the Lord Chaitcbllor said: “Although this annuity, or half-yearly payment, is not expressly given .J'qr maintenance of Mary as in the case of Hay v. Palmer, 2 Vern. 501, yet I am clear of opinion that it must be understood so, and therefore falls within the reason of that case.” In the case of Howell v. Hanforth, 2 Wm. Black. 1016, the annuity was provided by .a husband for his wife, and the .Court said: “Though rents and common annuities are not apportionable either by law or equity, yet in equity the maintenance of infants is always apportioned up to the day of :their deaths, etc., because it would be difficult for them to find credit for necessaries, if the payment depended on their living to the end of the quarter. This case depends on similar- principles, the annuity being for a separate maintenance pf .the feme covertj and, as it appears that the quarterly payments were not originally forward payments, by way of maintenance for the ensuing quarter (which might make a ■difference), hut payable at the end of each quarter, in' order Jp- discharge the expenses incurred in the three preceding •mppths, we think it ought to be apportioned.” : -In the case Attorney-General v. Smythies, 16 Beav. 385, “■by letters patent of King James the First, a charitable corporation was created, having for its object the support and maintenance of a master and five poor persons. The master ■yas to receive the income and pay the poor persons 2£, 12s, ■Od, annually, by. quarterly payments, for their support, relief and maintenance.

Mr. Smythies, the master, died on •the 24th of March, 1852; and a petition being presented by the new master for payment of the income, the executors of Mr. Smythies claimed an apportionment of the half year’s ijlcpme ending on the 5th July, 1852, upon a fund in Court •belonging to the charity.” The Master of the Bolls (Sir John Bomilly) said: “I am of opinion that there must be an apportionment. The question does not rest upon the general ⁴⁰³ ground of cases not falling within the provisions of the Apportionment Acts, hut comes within the principle of the rule, in cases of infants and married women who have no other support. I think this must he so, from the language in the charter itself. Here is an eleemosynary establishment, the funds of which are directed by the statutes to be applied to the support, relief and maintenance of five poor persons; which upon proper construction of the letters patent, must be de die in diem, for if it were otherwise, the alms people might be unable to procure sufficient supplies for their support during portions of the year, in consequence of the risk which those who supplied them would run of not being repaid.

For if they could not recover out of the -fund what was owing for supplies, they would Joe deprived of payment altogether. The same principle, I think, applies to the master as to the five poor persons, and therefore there must bo an apportionment of the dividends between the present and the representatives of the late master.” Mr. Swanston. in an extensive note to Ex Parte Smyth, 1 Swanst. R. 338, after stating the rule that rents and annuities are not apportionable, says: “A remarkable exception to the general rule has been introduced in the instance of annuities for the maintenance of infants (Hay v. Palmer, 2 P. W. 501; Reynish v. Martin, 1746 MS.; Sheppard v. Wilson, 4 Here, R. 395), or of married women living separate from their husbands (Howell v. Sanforth, 2 Bl. 1016 ; 2 Scholes & Lefr., 303); an exception supported by the necessity of the case, and the consequent presumption of intention ( 2 Bl. 1017 ; 2 P. W. 503), and therefore not extended to an annuity for the separate use of a married woman, living with her husband and maintained by him.” ' Tn the case of Smith v. Wistar, 5 Phil. R. 145, the testator devised certain ground rents, payable half-yearly, to his wife for life, with remainder over to his sisters and their children, and the Court said: “In Green v. Osborn, the gift of an annuity to a widow in lieu of dower was held to entitle her representative to an apportionment of payments which ⁴⁰⁴ had not fallen due, and which, in strict law, could never become so.

The equity here is quite as strong as it was there, because the Act of April, 1833, makes every devise to a widow, accepted by her, a devise in lieu of dower. Bequests of money payable periodically, are said, in Earp’s will, Parson's Equity Cases, 453, 468, to be apportionable when given for maintenance or to someone whom it is the duty of the testator to provide or maintain. It seems to he conceded that a gift to a child is within this exception, and the rule should be the same in the case of a widow. Both may he presumed to stand equally near the affections of the testator, and the position of the widow is obviously preferable when she has accepted the legacy in lieu or bar of her dower, and claims as purchaser, and not merely as volunteer.” In the case of Blight v. Blight, 51 Pa.

St. 425, the annuity was payable quarterly, in lieu of dower, and the Court held that; “The annuity was in lieu of dower, and lasted as long as dower would have lasted, and dower runs to the last day of life.” In Lackawana Iron & Coal Company's Case, 31 N. J. Eq. 26, John Stinson and wife conveyed his farm to Nelson Yliet, the husband of their granddaughter, in consideration of an agreement on the part of the grantee (the performance of which was secured by his bond and mortgage of the prop-, erty), to pay 'Stinson $250 yearly, on the 1st April, during the lifetime of Stinson, and if Stinson’s wife should survive him, to pay, or cause to he paid to her, yearly the sum of $200 during the term of her natural life. Mrs. Stinson survived her husband, and died on September 19th, 1881. The annuity was paid up to April 1st of that year and her personal representatives claimed a proportionate part of the annuity to the day of her death. The Chancellor said: “There is no doubt that the general rule is that when an annuity is payable on a fixed day during life, and the annuitant dies before the day, his representative is not entitled to a proportionate part of the annuity for the time which has