Crouch v. Mercantile-Safe Deposit & Trust Co.

Bruñe, C. J., delivered the opinion of the Court/ This case calls for a construction of the will of one Samuel Winter, who died in 1892. The aid of a court of equity in construing the will was first sought in December, 1893, and the first decree construing it was entered in 1894. The present proceeding was instituted in December, 1957, by the present trustee under the will for the determination of the proper disposition of the one-sixth share of the income from the trust estate under the will which had been payable to a great-grandson of the testator, the late W. Melbourne Hart, up to the time of his death in 1957. The chief question is whether Mr. Hart had a vested estate in the income which he could dispose of by his will or whether his interest in the income ceased upon his death and passed to his six first cousins who are grandchildren of the late William P. Winter, the son of the testator.

The Circuit Court held that Mr. Hart did have a vested interest in the income which he could transmit. It thus upheld the contention of the executors of Mr. Hart’s estate and the view of the trustee under Mr. Winter’s will, who, together, are the appellees. The appellants, W. Edwin Crouch and Henry L. Winter, are two of the first cousins of the late Mr. Hart and they are also first cousins of each other. The first two Items of the will of Samuel Winter made certain bequests and a devise to his wife, Sarah A. Winter.

By Item 3 the testator established a trust of the residue of his estate and undertook to direct the disposition of the income therefrom. By Item 4 he provided for the distribution of the principal of the trust estate, and by Item 5 he appointed executors and revoked prior testamentary dispositions. We are here concerned primarily with Item 3 and the provisions thereby made for the children and descendants of the testator. (The widow renounced the will.

Hence there is no need to discuss ah'annuity to her contained in this Item.) After providing that the trustees should hold the trust estate for twenty-one years or during the life of the testator’s wife and of his children living at the time of his death, and of the last ¹⁴³ survivor of them, Item 3 continues: “And if at the death of my last surviving child, any child or descendants of any of my said children be living under the age of twenty one years, then to have and to hold the said property and Estate to the said Trustees further until the said Minor child or descendants and all of them if there be more than one shall attain the age of twenty one years or until such minor descendants shall die, whichever first occur * * With regard to income payable to the testator’s children and descendants Item 3 provides that the trust estate shall be divided into two parts, the income from one to be paid to the son, William P. Winter, and from the other to the daughter, Sarah A. Winter, to her sole and separate use, subject as to each to a spendthrift trust clause. Then follow the provisions which give rise to the present controversy. They read as follows : “And from and after the death of either of my said Children respectively — Then in Trust and confidence to pay over one part or share of said net income to the Child or Children and descendants of such of my deceased Child per Stirpes and not per Capita until all my descendants living at the time of the death of the last Surviving of my Children shall if minors attain the age of twenty one years or die whichever first occur * * * ” This was followed by a clause which the Circuit Court in 1894 regarded as so incomplete as to indicate a clerical error resulting in an omission. This the Court proceeded to supply by construing the clause in question so as to read in provisions for cross-remainders in certain events.

The Court also, in effect, read out the original twenty-one year limitation on the duration of the trust. Neither of these emendations is involved in the present case. Item 4 provides for the distribution of principal as follows: “At the death of the last survivor of my children Provided none of the children or descendants of any of my said children be then living under the age of twenty one years, but if any child or descendant of any of my said children be living at the death of the last survivor of my children and under the age of twenty one years, then upon the death or majority whichever shall first occur of all such minors, it is my Will that the Trust here ¹⁴⁴ inbefore mentioned shall cease and determine and thereupon I do hereby devise and direct that all of Estate and property real personal and mixed shall be divided equally among all my descendants then living per stirpes and not per capita to them their heirs personal representatives and assigns Absolutely.” The testator was survived by the two children mentioned in his will. His daughter, now Mrs. Eccleston, is still living.

His son, William P. Winter, died in 1903. He was survived by one son, Henry N. Winter, and by two daughters, Mrs. Louisa Amelia Crouch, and Mrs. Willa Coriel Hart. Henry N. Winter died in 1908, intestate, and was survived by his wife (now deceased) and by five children (great-grandchildren of the testator). Mrs. Crouch and Mrs. Hart both died in 1938.

Each was survived by a son (a great-grandchild of the testator). Mrs. Hart’s son died in March, 1957, testate, but without issue. From the time of the death of his mother to the time of his death he received the income from one-third of the William P. Winter half of the trust estate, or one-sixth of the entire income from the estate. The disposition of that share of the income for the balance of the term of the trust is now at issue.

Since Mrs. Eccleston is still living, and since there are also other living and younger descendants of the testator, it seems quite possible that the trust may continue for an additional period in excess of twenty-one years. The decree of the Circuit Court entered in 1894 construing the will of Samuel Winter held that the terms of the trust did not violate the iule against perpetuities and that the term “descendants” as used in Item 4 referred to all direct descendants of the testator in whatever degree. The decree also stated that the court was of the opinion that the same word “descendants” as used in Item 3 “primarily means children of Testator’s children—it being the intention of the Testator to invest [sic] in his grandchildren the equitable remainder liable to be divested pro tanto to let in grandchildren or descendants of deceased grandchildren per stirpes born between the death of Testator and that of Testator’s grandchildren.” The Judge of the Circuit Court in the present proceedings instituted in 1957 reached a like conclusion both as a matter of his own interpretation of the will and on the basis of the 1894 decree being res judicata. ¹⁴⁵ No contention to the contrary as to res judicata appears to have been made in the trial court, but the appellants’ counsel in this Court (who did not represent them in the trial court) here contend that the 1894 decree is not binding as to them. Both of the appellees, the trustee and the executors of W. Melbourne Hart, agree that the point appears clearly on the record and that since the interests of the appellants were not represented in the 1894 proceedings, the doctrine of res judicata is not applicable against the appellants.

Cf. Hans v. Safe Deposit & Trust Co., 178 Md. 52, 64-65 , 12 A. 2d 208 , where a then objecting party had been a party to an earlier equity proceeding adjudicating the ownership of shares in a trust estate. He had there failed to raise the question which he sought to raise later and was held bound by the prior proceedings. We may also note, as did the trial court, that the present proceedings raise the question now at issue for the first time in truly adversary proceedings.

This observation is pertinent both to the above question and to the contention of the appellants that the practical construction of the will by parties in interest, extending over many years, has been against the grandchildren of the testator having vested interests in the income. That contention is based upon the fact that following the death of Henry N. Winter in 1908 and following the deaths of Mrs. Crouch and Mrs. Hart in 1938, their interests in the income were treated as passing to their respective children. In each of these instances the present contention could have been raised but was not. As to Henry N. Winter’s share, the income formerly payable to him was ordered, on the petition of his widow and without contest, to be paid to his children.

Since Henry N. Winter died intestate, his widow was the only person who would have had an interest adverse to that of the children. In the case of Mrs. Crouch and Mrs. Hart, each of whom died widowed and intestate, leaving a surviving child, the child would have been entitled to take in any event—whether under the will or under the intestate laws. Also, as the appellants agree, the practical construction of the will by some of the parties in interest is of no binding effect. See Walker v. Safe Deposit & Trust Co., 192 Md. 695, 704 , 65 A. 2d 311 ; Bradford v. Mackenzie, 131 Md. 330, 339 , 101 A. 774 ; Miller, Construc ¹⁴⁶ tion of Wills, § 8, p. 38.

As Miller states, it may, however, be taken into consideration. Cf. Marshall v. Security Storage & Trust Co., 155 Md. 649 , 142 A. 186 , where an alleged estoppel by agreement was held not to extend beyond the terms of the agreement. We now return to the main question, which might be stated in several ways.

At this point, it will probably aid in seeking the solution to this case first to restate briefly the terms of the gift of income and then to state the question in similar terms. The gift of income (after the renounced annuity to the widow) is one-half to each of the testator’s children for their respective lives, subject to a spendthrift trust, and from and' after the death of either child to his or her child or children and descendants of such deceased child per stirpes and not per capita, until all of the testator’s descendants living at the time of the death of the last surviving of his children shall have reached the age of twenty-one years or shall have died. Did this constitute a gift of the income to the children of the testator’s soij, William, who might be living at the time of the son’s death, with a substitutional gift to the then living descendants, per stirpes, of any child of the son’s who might have predeceased the son; or did it constitute a succession of gifts to the descendants of the son, per stirpes, who might be living from time to time during the continuation of the trust? It may be supposed that the testator did not foresee the course which events have taken—that his daughter would outlive one of his great-grandsons and that his trust might continue for perhaps twenty years or more after the death of a great-grandson.

We may suppose that if he had foreseen such a situation, he might have expressed himself more clearly as to his wishes in the present circumstances; but such suppositions afford little help in trying to decipher his intentions from his words. On the one hand, there seems to be no particular reason why he should have wished the beneficial enjoyment of his trust estate to be in others than his own descendants during the duration of the trust, just as he plainly wished it to be upon the termination of the trust. On the other hand, and also plainly, it would have been quite as easy to have said “descendants liv ¹⁴⁷ ing from time to time” in describing those entitled to receive income under Item 3 as it was to say “descendants then living” —referring to the time of termination of the trust—in describing those entitled to receive principal under Item 4. If