Clarke v. CLARKE, TRUSTEE

Prescott, J., filed the following dissenting opinion, in which Horney, J., concurred. Many members of the bench and bar, who have had occasion to examine carefully the question here involved, will ¹⁶⁷ unquestionably receive the majority opinion herein with somewhat of a shock, 1 as it completely overrules a long line of previous decisions of this Court and adopts the rule stated in Restatement, Property, 303 (1), which is diametrically opposed to the Maryland rule established in something over one hundred years. The question involved is a narrow one. A testator died leaving an equitable life estate to his son, and upon the death of the son, “then to his (the son’s) issue, absolutely.” The parties agree that the word issue is a word of purchase, i.e., it names the person or class in whom a new estate of inheritance is created; 2 and that there is nothing additional in the will nor in the evidence to indicate the testator’s intent as to the actual mode of distribution.

A previous appeal in this case determined that the word “issue” was not the equivalent of “children,” an interpretation which, however, has been frequently accorded it. Miller, op. cit., Section 90. And the majority, properly, accept the contention of the appellant that the word “issue” was used to mean “descendants.” 3 ¹⁶⁸ The question, then, to be determined, succinctly stated, is this: When a will creates a class gift by a limitation in favor of a group described as the “descendants of B” and there is nothing found from additional language in the will or circumstances to indicate the intention of the testator, what, under the Maryland law, is the proper distribution to be made, when the living descendants of B, at the time of his death, are two sons and one grandson—the grandson being the son of one of the living sons? The majority state they find no binding decision in Maryland upon the subject. 4 If this be so, many great judges of this Court and learned text-writers upon the subject have completely misconstrued the decisions of this Court, as will be clearly shown below.

Before citing the Maryland cases, it may not be inappropriate to note that at a very early date there grew up two opposing rules upon the question here involved. Maryland adopted and has adhered to what is termed the “general” or ¹⁶⁹ “basic” rule, while Massachusetts adopted and adhered to a minority rule. 5 Thus, we find in 2 A.L.R. 963 , the following statement: “It is very generally held, except in Massachusetts, that under a gift to ‘issue,’ where the word is used without any terms in the context to qualify its meaning, the children of the ancestor and the issue of such children, although the parent is living, as well as the issue of deceased children, take in equal shares per capita, and not per stirpes, as primary objects of the disposition. See McPherson v. Snow-den (1862) 19 Md. 197 ; [and citations from other states] * * * “In Massachusetts, however, the courts have adopted the converse rule that the word ‘issue,’ where its meaning is unrestricted by the context, will be construed as importing representation.” I turn now to the Maryland decisions and authorities, and I shall cite one English case cited with approval by this Court. In Miller, Construction of Wills, Section 96, we find the following: “in bequests to ‘descendants equally,’ or to ‘all the descendants’ of any person, or the ‘descendants’ simply (without the word ‘equally’ or ‘all’), [in other words, when used as words of purchase] the rule is that all take per capita unless a contrary intention appears.

Moreover in such a gift each individual of the stock takes an equal share concurrently with, not in place of, his or her parent; but where the distribution is to be per stirpes [when ‘descendants’ is used as a word of limitation] the principle of representation will be applied through all degrees, * v * ” (Emphasis supplied.) See also Section 91. ¹⁷⁰ In this statement, Mr. Miller is supported by a long line of Maryland and English decisions. The early case of Davenport v. Hanbury (1796), 3 Ves. 257, seems to be the leading English case involving the construction of the word “issue,” without qualifying words, and the proper mode of distribution under a will where the term “issue” is so used. The Court carefully considered other cases where, because of other words in the wills, it was held that “issue” should take per stirpes, then stated, “[t]his case depends entirely upon the construction of these words, ‘to Mary Davenport or her issue’ ”; and held that “issue,” as there used, was a word of purchase, and when so used it had “always been considered as synonymous to and the same as ‘descendants’; and whoever can make himself out a descendant of the person, to whose issue the bequest is made, had a right to be considered persona designata in that bequest,” and that the distribution should be per capita (in this instance the descendants were one child and two grandchildren). This case was followed in later English decisions, which it will be unnecessary to discuss.

In McPherson v. Snowden, 19 Md. 197 , the Court considered a trust made by deed which provided for the payment of income to four daughters of D, “and from and after the death of all of the aforesaid daughters * * *, then for the use and behoof of all of the issue of all of the daughters of * * * [D] and their heirs, in fee-simple.” The parties agreed that the word “issue” as there used was the equivalent of children, and the question arose as to whether there should be a per stirpes or per capita distribution among the children of the daughters. The Court pointed out the well-recognized principle that in a deed, at common law, the word “issue” was a word of purchase, and said, “[i]f, therefore, the issue of the daughters take in their own right [because the word “issue” was a word of purchase as in the instant case], and not by representation, they take per capita. See Davenport v. Hanbury, 3 Vesey, 260.” In Allender v. Keplinger, 62 Md. 7 , the same principle was applied. There, however, the will directed that the property be “equally” divided among the “lawful issue” of testator’s ¹⁷¹ three children.

Distribution was made per capita among the children and grandchildren of the testator’s children. In Levering v. Orrick, 97 Md. 139 , a per capita division among descendants of two deceased persons was ordered by the will, with a direction that the descendants were to be considered as purchasers. In holding that all of the children and grandchildren of the two deceased persons took equally, the Court said: “In bequests to descendants equally, or to all the descendants of any person, or to the descendants simply, the rule is all take per capita unless a contrary intention appears. 6 2 Redfield on Wills, 36 and and 74; 1 Roper on Legacies, 126. The following are instances of the application of the rule. ‘¿4,000 to the descendants of Frances Ince.’ Held, that great grandchildren were entitled to share with grandchildren.

Crossley v. Clare, Ambler, 397. ‘Legacy to the descendants of A and B equally.’ Children and grandchildren take per capita. Butler v. Stratton, 3 Brown’s Ch. 367. ‘Under the provisions of a will that the residue of an estate is to be equally divided between my brothers Edwin and Charles’ children,’ the distribution is to be made per capita. McIntire v. McIntire, 14 App. D. C. 339. “In the present case Mrs. Thomas being the last of the sisters, her share cannot pass to her surviving sisters, and can only pass to their descendants, in which case the rule of law is that the distribution must be per capita, unless a contrary intention appears; and here a per capita distribution is expressly ordered, * * (Emphasis partly supplied.) It will be noticed the principle by this time had become ¹⁷² so firmly established, the Court refers to it as a rule of law. Requardt v. Safe Deposit and Trust Co., 143 Md. 431 , was a case where the income was devised to testator’s brothers and sisters with a provision that on the death of any of the brothers or sisters their respective shares in the income should be paid to their issue until the last of the brothers and sisters died, when “said trust shall cease and the corpus divided equally among their surviving children.” The Court held that there was a clear direction to distribute the corpus per capita, though there was a per stirpes division of the income, reaffirmed McPherson v. Snowden, supra, and repeated the rule that we have just quoted from Levering v. Orrick, supra, and Miller, op. cit., Section 96. 7 Judik v. Travers, 184 Md. 215 , is another case that forcefully states the Maryland rule that we now have under consideration.

There, a per stirpes distribution was directed. In giving effect to the specific language used by the testator, the Court said: “The rule is that all take per capita, unless a contrary intention appears, in cases of bequests to descendants equally, or to all the descendants of any person, or to descendants simply. Levering v. Orrick, 97 Md. 139, 145, 54 A. 620 ; Requardt v. Safe Deposit & Trust Co., 143 Md. 431, 435 , 122 A. 526 . See also In re Stone v. Baker, supra.

The testator in the instant case obviously wanted to make clear that his intention was contrary to the rule on this point and that is precisely the effect of the language used to do so.” (Emphasis supplied.) 8 ¹⁷³ The same statement was repeated in Patchell v. Groom, 185 Md. 10, 14 , 43 A. 2d 32 ; and in Singley, Patchell and Groom, Revisited, 15 Md. L. Rev. 1 , we find the learned author stating: “It should be emphasized that these cases were not concerned with a gift to ‘my descendants equally’; a gift to ‘the descendants of A’; or a gift to ‘my descendants’, without a direction or an implication that a stipital distribution was intended. In these examples, the rule is that all take per capita, in the absence of contrary intention.” The latest expression upon the subject is found in Robinson v. Mercantile-Safe Deposit & Trust Co., 214 Md. 30, 34 , (1956), 132 A. 2d 841 , cited in the majority opinion. 9 There we quoted from Lycett v. Thomas, 153 Md. as follows: “ ‘We do not understand that there is any dispute about the general rule, that where there is a gift to a class [a fact conceded in the instant case], members of the class take per capita [which is not permitted by the majority opinion herein], unless the contrary intention clearly appears [that no