Burt v. Gill

Schmucker, J., delivered the opinion of the Court. This is an appeal from a pro forma decree of the Circuit Court of Baltimore City passed in an amicable proceeding to procure a construction of the will of the late Gustavus P. Henderson. The question at issue is the proper disposition of that portion of the income of the estate given in trust by the testator for his daughter Jane, which accrued before she reached the age of eighteen years and was not consumed in her support and education. The testator was a widower when he made his will and when he died.

He left surviving him no issue except his infant daughter Jane, then about eight years old, who subsequently married her co-appellee, Robert L. Gill. Mr. Henderson, after remembering in his will various relatives and friends, made provision for his infant daughter by giving to three trustees, of whom the appellant is the only one now acting, the sum of $100,000, upon the following trusts, i. e., “ In trust to invest the same in good irredeemable ground-rents in the city of Baltimore or other safe and reliable securities or investments in their discretion, and apply the rents, interest and income derived therefrom, or so much thereof as may be necessary to the support, maintenance and education of my daughter, Jane Henderson, until she shall attain the age of eighteen years, and thereafter to pay the net amount of said rents, income and interest unto my said daughter for and during her natural life, for her own separate use and benefit and so that the same shall in no manner be liable for the debts, contracts or engagements or subject to the control of any husband she may have; and ¹⁴⁹ from and immediately after the death of my said daughter, in trust, to pay, transfer, grant, convey and deliver the whole amount of said trust funds and property unto the child, children and descendants of my said daughter whom she shall leave surviving her, to be equally divided amongst them; if more than one, per stirpes and not per capita, in absolute interests, free from said trust. ” Then follows a devise over in similar terms to the testator’s two sisters in default of surviving issue of the daughter. The trust-fund yielded, during the time the daughter was under eighteen, more income than was required for her support and education. The trustee invested the unused income, and from time to time made reports of it to the Circuit Court, under whose supervision the trust was administered, and he now holds it subject to the event of this suit.

The pro forma decree appealed from determined that this unused income belonged absolutely to thetestator’s daughter, Mrs. Gill, as the life-tenant of the trust-estate, and the trustee appealed that the question at issue might, for his more complete protection, be passed upon by this Court. In order to ascertain the intention of a testator the Court will look first to the contents of the will itself and especially to the language of the particular portion of it in reference to which the doubt exists. If the intention cannot be clearly made out from the language of the will, taken in its usual and proper acceptation, then the peculiar situation of the testator and the relations subsisting between him and the objects of his bounty will be considered in connection with the language of the will and it will be interpreted, with the aid of the light thus thrown upon it, in accordance with the accepted canons of construction. Jones v. Sothoron, 10 G. & J. 191 ; Branson v. Hill, 31 Md. 188 ; Henderson v. Henderson, 64 Md. 188 — 9.

The diversity in the situation and purposes of testators, as well as in the structure and phraseology of their wills, is so great that, although the authority of decisions is not disregarded in the interpretation of wills, adjudged cases become ¹⁵⁰ of less authority and are more hazardous of application than in any other branch of the law, and the Courts are strongly disposed to confine themselves to the particular will under consideration in the attempt to ascertain the intent of its author. Douglas v. Blackford, 7 Md. 22 . Looking at the contents of the will before us we find that in disposing of the income to be produced by the trust-fund before the daughter became eighteen years of age, it directs the trustees to “ apply the rents, interest and income," to her support and education, but at the same time it gives to them authority, in their discretion, to apply less than the entire income to that purpose. This authority to apply less than the whole income to her support is not the primary direction, but is rather in the nature of a secondary and alternative one and it should not be permitted to obscure the purpose of the testator to devote the income of the estate to the use of his daughter, if we find that to have been his governing motive in creating the trust-estate.

The will nowhere makes any separate or distinct mention of the portion of the income'which would remain unused if the trustees did not apply it all to the daughter’s support and education. There is no direction that it be retained or invested by the trustees, or accumulated and added to the corpus of the estate, nor is there a separate disposition of it to be found in any part of the will. The appellees contend that the manifest purpose of the testator was to give his daughter the benefit of all of the income produced by the trust-fund during her life and that the direction in the will to the trustees to pay over to her when she became eighteen “the net amount of said rents, income and interest,” following as it does immediately after the authority to apply a portion of the income to her support while under eighteen, operates as an actual gift to her of the unused portion of the income. The appellant, on the contrary, while submitting himself as trustee to the Court’s control, suggests and contends that an implied direction to accumulate this unused income and ¹⁵¹ add it to the corpus of the estate, arises from the terms of the will and that the devise to the remaindermen, at the death of the daughter, of” the whole amount of said trust funds and property” was intended to and did include the unused income.

We think that the construction of the will contended for by the appellees is the correct one. The clause of the will creating the trust seems to us to manifest a general intent on the part of the testator to dedicate to the use of his daughter the income of the trust-estate as long as she lived and to preserve the corpus of the estate for her issue or, in default of issue of her, for his two sisters. The daughter is excluded from the ownership and control of the corpus of the estate, which cannot be enroached upon for her relief no matter how meagre the income may be and she ought not to be called upon to invest any part of the income to increase the corpus, unless the will distinctly requires it to be done. There is no express direction in the will to do anything with the income except to pay it to the daughter or expend it for her benefit, nor is there any suggestion or implied direction that any part of it should go to or be applied to the benefit of any other person, unless such an implication arises from the expressions used to describe the estate given at her death to the remaindermen.

We are unable to come to the conclusion that the words used to describe this remainder, i. e. “ the whole amount of said trust-funds and property,” standing as they do in this will without explanation or specification, should be held to include any portion of the income which accrued during the life of the daughter. To accumulate the unused income now under consideration and invest it for the benefit of the daughter for life, with remainder to her successors in the title to the trust-fund, would result in making her father’s will give to her an absolute estate in part of the income of the trust-property and only a life-estate in the rest of it. We find nothing in the will indicating such an intention on his part. The law favors the early vesting of estates, and ¹⁵² a direction to accumulate the income accruing during any portion of a life-estate, for the benefit of the remaindermen, ought to appear expressly upon the face of the will or to arise by necessary implication from its provisions.

Evans v. Iglehart, 6 G. & J. 172 ; Tayloe v. Mosher, 29 Md. 443 ; Fairfax v. Brown, 60 Md. 50 ; Crisp v. Crisp, 61 Md. 152 ; Merryman v. Long, 49 Md. 546 . The fact that the will does not require the entire income to be expended for the daughter’s benefit during her minority is not significant of a purpose to deprive her of the title to the unused portion of it. Testators frequently restrict or authorize trustees to restrict the amount of income which may be expended for their daughters while young and unmarried, but such restriction has never been held to change the character of the devise. Fairfax v. Brown, 60 Md. 55 -6-7.

In the present case the equitable life-tenant of the trust-fund was the only daughter of the testator. She was nearer to him in affection than any other person mentioned in his will and must have constituted the first object of his thought and care. At his death she was an infant of tender years and the scheme of the trust-estate created by his will was devised for her protection, with the paramount purpose of providing for her comfort and happiness so long as she lived. As between her and her successors in the title, whose identity is even now uncertain, it must be presumed that he would in every case have preferred her and her interest and welfare.

These incidents of the testator’s situation and the relation subsisting between him and the objects of his bounty all tend to strengthen the conclusion that he intended the entire income produced by the trust-estate during the life of his daughter to go to her, and when they are coupled with the further circumstance, that no clear purpose to accumulate any part of the income is expressed on the face of the will or manifested by the character of its provisions, they fully support the construction of the will adopted by the decree appealed from. ¹⁵³ The case of Milligan v. Pleasants, 74 Md. 8 , was much relied on by the appellant’s counsel, who claimed that the principle on which it was decided was conclusive of the present appeal in his favor; but a careful examination of the case shows that it is plainly distinguishable from the one now under consideration. In that case the declaration of trust, which was before the Court for construction, contained an express direction to the trustee “ to accumulate the income" of the fund until the cestui que trust, Milligan, arrived at twenty-two years of age and then to invest it in a farm in trust for him for his life, with-remainder to his children. The trustee was given a discretionary power to apply the income to Milligan’s maintenance, instead of accumulating it, for such portion as he might think best of the period before Milligan reached twenty-two years of age. The trustee did not exercise the power to apply part of the income to Milligan’s maintenance, but accumulated all of it, and no farm was purchased when he reached twenty-two years of age, because it was deemed to be an unwise investment.

Under these circumstances Milligan asked for a decree requiring the trustee to pay to him absolutely the income which had accrued before he became twenty-two years old, but the Court refused his application upon the ground that the trustee was authorized by the terms of the trust to accumulate the income and having done so he could not be called upon to pay it over to the life-tenant. In the case now under consideration there is a total absence from Mr. Henderson’s will of anything like an express direction to the trustee to accumulate any portion of the income of the trust-estate nor do we think that such a direction can be fairly implied from the contents of that instrument. When the daughter came to be eighteen years of age she executed a release to her trustee for all of the income due to her by him, but as the release on its face refers to “ said income ” as that appearing in the auditor’s accounts from time to time filed in the case, it should be held to apply only to such income as was awarded to her by the auditor’s ¹⁵⁴ accounts and not to that which was retained by the trustee and invested or held subject to the further order of‘the Court. (Decided March 15th, 1899.) The decree will be affirmed, the costs to be paid out of the unused income.

Decree affirmed. Pearce, J., dissented and delivered the following opinion: It is my misfortune not to be able to agree with the conclusions of my brothers, in this case, notwithstanding my sincere deference to their superior and united judgment, and I think it proper to state the grounds of my dissent. I shall not cumber this opinion with any reproduction of the language of the will, which is set out in the opinion of the Court. I am in entire accord with the statement therein of the general rules and tests to be observed in endeavoring to ascertain the intention of a testator; nor would I ever seek to control such intention when properly ascertained, by reference to artificial or technical rules of construction.

Having satisfactorily ascertained the real intention of a testator, it must be respected and allowed to operate, unless in conflict with the settled policy of the law, or unless violence would thereby be done to the established legal interpretation' of the language, in which the will is couched, and in such case the intention which the law presumes from the language used, must prevail. The result of very careful consideration, both before and since the decision of this case, is to convince me that the testator did not intend that the unexpended income which accumulated before his daughter reached eighteen should belong absolutely to her, but that he designed it should form a part of “ the whole amount of said trust-funds and property” which he directed should go to her children at her death, or in default of children or issue, to his two sisters, and this conclusion, which I deduce from the language of the will, and from a consideration of the peculiar ¹⁵⁵ situation of the testator, and the relation subsisting between him, and the declared objects of his bounty, is, in my judgment, the only one which accords with the settled legal construction and effect of the language in which he dealt with this bequest. It is true, there is here no express direction for the investment or accumulation of the unused income, and its addition to the corpus of the estate, but it is conceded by my brothers that such effective direction may arise by implication, and I think it is clearly implied in this case. The testator was a widower at the date of his will, and at the time of his death in 1882.

He left no issue, other than one daughter,