Cowman v. Classen

Parke, J., delivered the opinion of the Court. The three appeals on this record bring up for construction the will of Benjamin H. Classen, who died on June 28th, 1916. The will was made on February 6th, 1900, and on December 1st, 1906, a codicil was added that only changed one of the trustees named in the will. In the first six provisions of the will, the testator directed that his debts and funeral expenses be paid, and made gifts which are not in controversy.

The questions on these appeals grow out of the seventh and, except for the appointment of executors and the formal subscription and execution, the last section of the will. This section consists of one long sentence, unbroken by punctuation, and of a short explanatory para ⁴³¹ graph. For the purpose of convenience the court will paragraph this sentence and place numerals and letters to indicate its natural divisions and subdivisions. The part of the will making this seventh disposition will then read as follows: “Seventhly I give devise and bequeath all the rest and residue of my worldly estate (all the rest and residue of my property of any and every kind and description whatsoever) and which I will for convenience herein call my trust estate unto my dearly beloved wife Ella A. Classen and my nephew Charles Id.

Classen whom I will herein for convenience call my trustees in trust and confidence however for the uses intents and purposes presently herein mentioned and declared of and concerning the same “1 that is to say in must for the use and benefit of my said wife for and during the term of her natural life (a) with full power and authority in them my trustees herehj' vested to sell and dispose of all or any part of the same my trust estate and to reinvest the proceeds thereof in their names as trustee hereunder seas to hold the same the new investments under the trust hereby created the sales thus to be made by my trustees shall he made without risk to the purchaser or purchasers as to the application or misapplication by the Trustees of the purchase'money and “2 from and after the death of my wife then to hold the trust estate including the new investments in trust for the use and benefit of my daughter Mary Augusta for and during the term of her natural life (5) with full powers and authority however in her hereby vested to sell and dispose of any or all of the said trust estate without the aid of a court of equity trustee or trustees or the consent or concurrence of the present or any future husband and the proceeds thereof to apply to her own use and benefit and “3 from and after her death then I give devise and bequeath the same (my trust estate) or so much thereof as she may not have disposed of under the powers hereby conferred upon her issue living at the time of ⁴³² her death share and share alike per stirpes and not per capita but should she however die without issue living at the time of her death then and in that event “4 one-half part thereof my trust estate or so much thereof as she may not have disposed of I give devise and bequeath to such person or persons or body corporate (c) as she may by her last will and testament designate or appoint and for that purpose I confer upon her the authority to make a last will and testament affecting the said one-half part and “5 of the other half part thereof or the whole in ease she shall die intestate of my trust estate or so much thereof as may have not been disposed of I direct shall be divided into six equal parts having reference to value and quantities and I give and devise and bequeath 6 two parts in six parts thereof unto the children of John H. Snyder 7 two other parts in said six parts unto Classen C. Howard and 8 one other part in the said six parts unto Margaret M. Start and 9 the remaining one part of said six parts unto Charles H. Classen “10' on the death of either of my trustees hereunder my wife or Charles H. Classen then shall my friend Walter M. Stromenger and Oliver A. Winchester, Jr., be appointed trustees in place of the deceased trustee but they shall not act as such trustees until they shall have given bond as may be required by the court of equity appointing them trustees. “Whenever I have herein spoken of my trust estate I mean not only my original trust estate but I mean to include therein any new investments that may have been made by my trustees in pursuance of the power hereby conferred on them.” The codicil simply annulled the appointment of Winchester as a trustee and appointed Frederick H. Lohmeyer, the husband of his daughter, in his place. The testator was survived by his wife, Ella A. Classen, and his daughter, Mary Augusta Classen Lohmeyer, and all the beneficiaries who were individually named in the will. The children of John H. Snyder living at the date of the will, ⁴³³ and at the date of the testator’s death, were Edwin O. Snyder, Charles E. Snyder and Maurice Winfield Snyder. A fourth child, Wilmer IL.

Snyder, -was long dead when the will was made, but left an only child, Florence M. Snyder, who survived the testator, who is a party to these proceedings and who, although a grandchild, claims to take under the will as a child within the meaning of the gift to the children of John H. Snyder. The wife of the testator died on May 23rd, 192J, and his daughter died without issue on January 28th, 1919. Although the daughter did not survive the mother, she made a will on January 18th, 1918, which was duly executed and admitted to probate by the Orphans’ Court of Baltimore City, whereby she disposed of the estate which she had acquired by the will of her husband, who had died before her; and then, after appropriate and explicit reference to the power of testamentary disposition conferred upon her by the will of Benjamin Ii. Classen, her father, she proceeded in this manner: “I do give, devise and bequeath all the property and estate belonging to the estate of my father the said Benjamin H. Classen, deceased, over which I have testamentary power of disposition and subject to the life estate of my mother Ella A. Classen, under said will, as follows:” and then, after giving certain legacies in money, she devised and bequeathed the residue of the estate of her father over which she had the power of disposition to two tenants in common.

By the fourth and final clause of her will the testatrix devised and bequeathed all the residue of her property to her mother for life and then in remainder to Harriet K. H. Cowman, and Mary B. S. White as tenants in common. It is unnecessary to set forth the further details of this testamentary disposition, and of the devolution after death of the title to the interests of several possible beneficiaries under the will of Benjamin H. Classen, since the proper representatives are parties to the cause and these details neither present any difficulties nor affect those before the court for solution. ⁴³⁴ The death of the life tenant caused the surviving trustee under the will of Benjamin H. Classen, along with a group of claimants, to file a bill of complaint against all other possible claimants in order that the court might assume jurisdiction of the trust created by the will of Benjamin H. Classen, and direct its administration in order that the real and personal property forming the trust estate should be divided among such parties as might be determined to be entitled. The parties answered, and testimony was taken, and a decree passed, assuming jurisdiction, construing the will, appointing a trustee to make sale of certain real and leasehold property not susceptible of partition, and to make a partition and division of the entire trust estate, including the proceeds of the sales, among those determined by the decree to be entitled; providing for a report of sales and of the trustee’s proceedings, for the statement of an account, subject to exception; and reserving the right to pass whatever further orders might become necessary in the settlement and distribution. The error assigned on the appeals from this decree is the construction of the will by the chancellor, and this court finds no other ground for attack.

The chancellor construed the power of testamentary disposition given to the daughter to depend upon her surviving her mother; and, as she did not so survive, her attempt to exercise this power was declared void. He further held that the term “children of John H. Snyder” only included those children who might have been living at the time of the death of the testator’s daughter. The effect of this construction is to treat the daughter as having died “intestate” of the trust estate, and, she not having is'sue living at her death, to cause the whole trust estate to vest clear of any trust but according to the specified proportions, in the parties designated under the final provision of Benjamin H. Classen’s will. The appellants are not united in their positions.

It will, however, serve no useful end to treat the appeals separately, if all the questions raised are severally considered and de ⁴³⁵ termined. The material questions are these three: first, whether under the rule in Shelley’s ease Mary Augusta C. Lohmeyer took a legal estate in fee simple in all of the trust property; or, if not, second, was: the power of testamentary disposition given to the daughter such that she could not validly exercise the power until and unless she survived her mother; and, third, does the term “children of John II. Snyder” as used in the section of the will in controversy include a living grandchild whose father, a son of John II. Snyder, had died some years before the execution of the will of Benjamin H. Classen. 1.

As the will of Benjamin H. Classen was executed before May 31st, 1912, it is unaffected by the provisions of the Acts of 1912, eh. 144, now section 342 of article 93 of the Code. So, the first question will be, Does the rule in Shelley’s case apply? The following is an approved definition of the rule: “When a person takes an estate of freehold, legally or equitably, under a deed, will or other writing, and in the same instmment there is a limitation by way of remainder, either with or without the interposition of another estate, of an interest of the same legal or equitable quality, to his heirs, or heirs of his body, as a class of persons to take in succession from generation to generation, the limitation to the heirs entitles the ancestor to the whole estate.” 4 Kent's Comm., 215; Cook v. Councilman, 109 Md. 622, 639 ; Travers v. Wallace, 93 Md. 507, 512-513 ; Henderson v. Henderson, 64 Md. 185, 190 ; Stump v. Jordan, 54 Md. 619, 627, 628 ; Ware v. Richardson, 3 Md. 505, 544 . The rule accordingly requires that the interest of the ancestor and of the heirs must be “of the same legal or equitable quality.” Consequently, if the estate limited to the ancestor is an equitable estate and the estate limited to the heirs is a legal estate, or if tlie estate limited to the ancestor is a legal estate and that of the heirs is an equitable estate, the two estates will not coalesce in the ancestor.

The two estates must be both legal or bo both equitable, for if one be legal and the other equitable tho rule will not apply. Ware v. Richardson, 3 Md. 505 , 545 ; Griffith v. Plummer, 32 Md. 74, 77 ; Handy v. McKim, 64 ⁴³⁶ Md. 560; Horne v. Lyeth, 4 H. & J. 431, 435 ; Browne v. Trustees, 37 Md. 108, 120, 121 ; Goldsborough v. Martin, 41 Md. 488, 503 ; Shreeve v. Shreeve, 43 Md. 382, 394 ; Brown v. Renshaw, 57 Md. 67, 78 ; Cissel v. Cashell, 76 Md. 330, 334 ; Mercer v. Hopkins, 88 Md. 292, 309, 310-313 ; Mercer v. Safe Deposit Co., 91 Md. 102, 117 ; Preston on Remainders, 321; Jaman on Wills, 335; Fearne on Remainders, 52-60. The will at bar gives the legal title in the real and personal property to trustees for the period of the lives of Ella A. Classen, the widow, and Mary Augusta C. Lohmeyer, the daughter, or that of the survivor of them; and at the death of the daughter unto her issue living at the time of her death, per stirpes and not per capita. During this period of the trust, the trustees had active and important duties to perform, with a large measure of discretion and authority committed to them by the will; and these duties the trustees could not discharge without holding the legal estate.

It follows that the legal estate was not executed in the life tenants by the Statute of Uses, and that the life tenants did not take legal estates. At the time the will created a legal estate in the trustees for the lives of the mother and daughter or of the survivor, with remainder to the issue of the daughter living at the time of her death, per stirpes and not per capita, the will, also, created an equitable life estate in the mother and an equitable life estate in the daughter from and after the death of her mother. So, if the word “issue” be regarded as a word of limitation and not a word of purchase (Miller on Construction of Wills, secs. 89, 90), the remainder to the daughter’s issue would mean a remainder to the heirs of her body, and would create an estate tail which our statute converts into a fee simple estate in the issue, so the rule in Shelley’s case would not apply, since the estate of the ancestor is equitable and that of the issue or heirs of her body is legal. Supra; and Dickson v. Satterfield, 53 Md. 317, 320, 321 ; 2 Jarman, Wills, 417; Chelton v. Henderson, 15 Md. 191, 193 ; Code, art. 21, sec. 25; Tongue v. Nutwell, 13 Md. 424 ; Thomas v. Higgins, 47 ⁴³⁷ Md. 452; Estep v. Mackey, 52 Md. 599 ; Benson v. Linthicum, 75 Md. 144 .

Since the rule in Shelley’s case did not apply, no part of the trust estate created by the will of Benjamin H. Classen passed to the appellants, Harriet K. H. Cowman and Mary B. S. White, as legatees and devisees under the fourth and residuary clause of Mary A. C. Lohmeyer’s will. 2. At the time of the death of Benjamin H. Classen, his. wife and his daughter both survived, and the legal title to the-realty and personalty vested under the will in his testamentary trustees for the period of the trust, which was to continue until the death of the survivor of his wife and daughter. The mother took an equitable life estate and the daughter an equitable life estate in remainder. The fact that, with this equitable life estate in remainder in the daughter, were-coupled a power in the equitable life tenant to convert all or any part of the trust estate to her own use and benefit, and a further power to make a testamentary disposition of one-half of the entire trust estate remaining at her death, if she should die without issue living at the time of her death, did not give her a fee simple estate in the realty and an absolute estate in the personalty.

The rule was stated for this court by Judge Alvey in Benesch v. Clark, 49 Md. 495 , at p. 505 : “'Now it is quite clear upon all the authorities, that where an estate is given to a person generally or indefinitely, with power of disposition, such gift carries the entire estate, and the devisee or legatee takes, not a simple power, but the property absolutely. But when the property is given, as in this case, to a person expressly for life, and there be annexed to sueh a gift a power of disposition of the reversion, then the-rule is different, and the first taker, in such ease, takes but an estate for life, with the power annexed; and if the person so taking fails to execute the power and thus dispose of therevorsion, it goes, where there is no gift or devise over, to the-heir or next of kin of the testator, according to the nature of the property. “This distinction, while it has been said to be a refined one, is, nevertheless, as well established as any in the law; ⁴³⁸ .and judges and text-writers alike recognize and adopt it as a principle too firmly settled to be questioned.” Foos v. Scarf, 55 Md. 310 ; Mines v. Gambrill, 71 Md. 35; Smith v. Hardesty, 88 Md. 390 ; Welsh v. Gist, 101 Md. 608 ; Roberts v. Roberts, 102 Md. 147 ; Marden v. Leimbach, 115 Md. 206, 210 ; Brandau v. McCurley, 124 Md. 250 . The remainder to the daughter was not made contingent either by its being subject to a precedent equitable life estate in the mother, since the possibility that the remainder may never take effect in possession is immaterial; or by the granting to the daughter of a power whose exercise might terminate .her life estate. So the daughter took an equitable life estate, which vested in interest under the will at the death of the father and testator, and which would vest in possession upon the daughter surviving the mother, in whom the particular precedent equitable life estate had vested in right and possession at the death of the testator. 1 Tiffany on Real Property (2nd Ed.), sec. 137; Kemp v. Bradford, 61 Md. 330, 335 ; Roberts v. Roberts, 102 Md. 131, 147-149 ; Ridgely v. Cross, 83 Md. 161, 171, 172 .

While the will created two successive equitable life estates, .and provided for the continuance of the legal title in the trustees of an active trust until the death of the survivor of the two life tenants, it is clear that the subsequent estates were not to arise upon the termination of the latter of two .successive equitable life estates but upon the death of the -daughter, whether her death took place in the life time of the first life tenant, when her life estate in remainder was vested in interest, but not in possession, because she had then .a present fixed right of future, but not of present, enjoyment; •or whether her death happened after the expiration of the precedent particular life estate in the mother, when her life -estate was both vested in interest and in possession. If we ignore the trust estate created by the will, and treat,