Dulany v. Middleton

Alvey, C. J., delivered the opinion of the Court. The bill in this case was filed for the purpose of obtaining a judicial construction of the will of Lambert Grittings, deceased, who died in July, 188⁷. The will bears date the 30th of June, 18⁷⁰. At the date of the will, as also at the time of the death of the testator, the heirs-at-law and next of kin of the testator consisted of two surviving married daughters, Mrs. Middleton and Mrs. Buchanan, and three granddaughters, the children of Mrs. Simons, deceased, the eldest daughter of the testator.

Both the married daugh ⁷⁰ ters had children living at the date of the will and at the time of the death of the testator; and the three children of Mrs. Simons, namely, Eleanor A., Louisa and Fanny Simons, were all minors at the date of the will, but were married and had children at the time of the death of the testator; and the two daughters with their husbands and children, and the three granddaughters with their husbands and children, are all made parties defendants to the bill. The testator was possessed of a large estate, consisting of both real and personal property; and this estate he devised and bequeathed to three named persons, his sons-in-law, and the survivors or survivor of them, their heirs and assigns forever, (giving special directions for supplying the place of either of the trustees named in case of his declining to accept the trust,) to hold the property to the uses and upon the trusts expressed in the will. The same three persons are named as executors as well as trustees. They are directed to pay debts, and funeral and cemetery expenses, etc.; and also to pay certain legacies.

They are then directed to divide into three equal parts, the wines, furniture and pictures, and allot the parts to the daughters and granddaughters respectively, the one part being given to the three granddaughters collectively. They are also directed to pay over to his daughters, Mrs. Middleton and Mrs. Buchanan, and his eldest granddaughter, Eleanor A. Simons, the sum of $5,000, “to be applied by them in their best judgment, as my bequest for charitable and religious purposes, say for the promotion of the Christian religion, without prejudice or regard to sect, and for or towards the relief of the poor and destitute.” They are next directed to set apart and safely invest, in their names as trustees, or retain invested from present investments, the sum of $10,000, or so much thereof as may be necessary, &c., and from the interest or dividends thereof, to pay to his, ⁷¹ the testator’s, sister, Harriet Glittings, during her life, an annuity of $100; and to his sister Louisa E. Littig, during her life, an annuity of $200; and to his brother-in-law, Richard Croxall, during his life, (or to his daughter, Eleanor A. Jamieson, for his support,) an annuity of $300; each of which annuities to cease on the death of the annuitants respectively; and upon the death of each of said annuitants, so much of the principal sum of $10,000, as shall have been necessary to produce the annuity of the deceased annuitant, shall revert and go back, with the future products thereof, to be divided into three equal parts, the one-third to his three grandchildren, the children of Mrs. Simons, deceased, to he equally subdivided between them, and to their issue; one-third to his daughter Mrs. Middleton, and her issue, and the other third to his daughter Mrs. Buchanan, and her issue; to be held in trust for their benefit in the same manner as his other property therein after devised to them, or for their benefit; subject, however, to certain payments to be made from the principal sum of $10,000. The testator then directs that the trustees shall hold in trust the whole residue of his estate and property, together with the reversion of the sum before mentioned, after the annuities provided for, and that they shall divide the whole of such estate devised in trust, into ilvree equal parts, having reference to the value of each part. He then makes provision for the allotment of such three parts among his children and grandchildren, giving the first choice of parts to the grandchildren, as representing their deceased mother, Mrs. Simons; the second choice to Mrs. Middleton, and Mrs. Buchanan to take the remaining third part; and in case of either of the daughters, or the grandchildren, failing to make choice, the trustees, if necessary, to choose for her or them, as the case may be.

The testator then proceeds to declare the nature of the trusts, and the limitations ⁷² of the estate and interests of the children and grandchildren in the property devised and bequeathed to them; and he does so in these terms: “And upon such choice being made, it is my will that my said trustees, their survivors, &c., shall hold each part, (being in the cases of my two daughters, Harriet and Henrietta, each one-third, and that of my three Simons’ grandchildren collectively or together, one-third, and sub-divided one-ninth part to each of the latter,) to the separate use and benefit of my aforesaid two daughters and granddaughters respectiAmly, according to the parts chosen by them, as the same shall be allotted in the above or before mentioned division, free from any control of any present or future husbands, for the term of their natural lives, the annual product or avails thereof to go and inure to my aforesaid daughters, and granddaughters Simons, respectively; and after each of their deaths respectively, the share of each to be held by my trustees as aforesaid to the use of the children of my aforesaid daughters and granddaughters, and their heirs, executors and administrators.” He then provides for the event of the death of either of his two surviving daughters, and also of either of his three grandchildren, toithout leaving issue, with cross executory limitations; “or again,” in the language of the will, “in the case of my grandchildren Simons, if they should all die before reaching the age of thirty, without leaving issue, upon the death of the last survivor, their father, if without receipt of pay as an officer, or retired officer of the army, shall be entitled to the receipt and enjoyment of one-half of the income during his life, and the residue or whole, as the case may be, with the principal, shall go-equally to their aforesaid two aunts Mrs. Middleton and Mrs. Buchanan, and their issue,” &c. The event of death has not occurred with either of the devisees and legatees, and therefore there is no question presented ⁷³ here upon these cross executory limitations, and, of course, we are not to he understood as deciding any question involved in them that may affect parties who may ultimately claim thereunder. These limitations of the interests of the cestuis que trust are followed by restrictions upon the power of alienation, lien or incumbrance of the property, with a qualified right to authorize the transfer and reinvestment of the property by the trustees, with a view to a more safe and beneficial investment thereof, during the continuance of the trusts. Then follows the last clause of the will, the terms of which seem to have given rise to what is regarded as a serious difficulty in its construction, and as to the effect of that clause upon the devises and limitations contained in other clauses of the instrument.

The last clause is as follows: “And it is further my will and desire, that the trusts raised and expressed in this my last will and testament shall cease and determine after the death of my two daughters, Harriet S. Gr. Middleton and Henrietta Gr. Buchanan, during whose lives I wish them to continue: upon the event of my grandchildren respectively arriving at the age of thirty .(30), so far as regards such grandchildren', and their respective shares, — that is to say, they shall cease and determine in the case of each grandchild upon and as she or he reaches the age of thirty (30), so far as regards her or his share coming either directly from me or from her or his mother’s proportion of my estate, and that such grandchildren or grandchild from that period and age (thirty) shall hold their respective shares, or her or his share, free and discharged of the said trust to themselves for the term of their natural lives respectively, and after their deaths to the lawful issue of tlieir todies, their heirs and assigns forever, and that the said trustees shall convey the shares of such ⁷⁴ grandchildren to them in accordance with this direction of my will. ’ ’ 1. Upon the whole will there are several questions raised, and-the first is, what is the effect of the bequest of $5,000, to be applied to charitable purposes, in the discretion of the two daug'hters and granddaughter of the testator ?

This bequest, according to the well settled law in this State, is entirely too vague and indefinite to be executed, and it is therefore simply void. Indeed, there is no contention to the contrary; and 'the fund falls into and constitutes a part of the general residue of the estate. Dashiell vs. Attorney-General, 5 H. & J., 392; 6 H. & J., 1 . 2. The second question is, in what manner is the fund of $10,000, which was directed to be set apart and invested by the trustees, to raise the three annuities, to be treated, inasmuch as the annuitants all died in the life time of the testator?

This question would seem to be entirely settled by the terms of the will itself. It is expressly declared, that, subject to the payment of certain legacies, the fund should be held in trust, and upon the death of the annuitants, it should, together with the whole residue of the estate, be divided into three equal parts, &c. It would seem to be too clear for question, that the fund designed to raise the annuities, fell into the general residue, to be divided in the manner prescribed for the division of the general residue of the estate. 3. The next question is, what interests do the daughters and granddaughters, and their children, take in the parts of the general residue allotted to them respectively, under the will?

The terms of the will upon this subject appear to be plain enough. The part that each of the daughters, and granddaughters, (the children of Mrs. Simons,) takes is to be held in trust to her separate use, and for the term of her natural life; and after her ⁷⁵ death such allotted share or part is to be held t'o the use of her children, their heirs, executors and administrators. The gift or devise to each daughter and granddaughter, and to her children, (there- being children in esse at the death of the testator,) is of a present equitable interest, — the interest in the children of the devisee and legatee for life, while postponed in enjoyment, is a vested interest, but liable to be divested pro tanto to let in children that have been or may be born in the interval between the death of the testator and that of the devisee and legatee for life. Tayloe vs. Mosher, 29 Md., 443 ; Leeming vs. Sherrat, 2 Hare, 14; 2 Jarm. on Wills, (R. & T. Ed.,) 704, 707-8.

The contingent event, provided fox-in the will, of the death of the devisee and legatee fox-life without leaving issue, and the limitation over of the property thereon, does not, as contended on the part of the appellants, render the gift or devise to the children of such devisee ox- legatee contingent, and forms no ground for postponing the vesting of the interest devised. It is very clear, from all the provisions of the will, that the testator intended to dispose óf his entire estate, arxd that he did not contemplate the possibility of a state of intestacy as to any part of His estate, with respect to any event or for any interval of time. Besides this, the law favors the vesting of estates at the earliest moment that is consistent with the apparent intent of the testator, or the general scheme of his will. The general principle is, that any devise or bequest in favor of a person or persons in esse, whether such