Evans v. Safe Deposit & Trust Co.

Markell, J., delivered the opinion of the Court. This is an appeal from a decree for distribution of the trust estate created by a deed of trust from Samuel Scribner and wife. The decree also covers distribution of a trust estate created by Mr. Scribner’s will, but as to that trust estate the appeal has been abandoned. On November 25, 1859 Mr. Scribner, then 69 years old, executed the deed of trust, four days later on November 29, 1859 his will, and on April 9, 1866 a codicil.

He died May 30, 1873, his wife in May, 1880. He had four children, (1) Julia Briggs, who married and in 1850 died without issue, (2) Gertrude A. Rogers, who died August 6, 1856, leaving one child, Julia R. G. Rogers, presumably a new-born or very young child, (3) Henrietta E. Scribner, who died unmarried April 21, 1906, leaving the residue of her estate to Julia R. G. Rogers and (4) Mary E. Mead, who had married before the date of Mr. Scribner’s codicil and died in December 1899, leaving four children, (a) Herman and (b) Clarence, both of whom died without issue before 1906, (c) Frederick and (d) Mary Gertrude (Abbey). Mrs. Mead left an annuity for ³³⁶ Herman and the residue of her estate to Frederick and Mary in equal shares. Frederick Mead died November 6, 1918, without issue, leaving the residue of his estate to Yale University.

Mary Gertrude Abbey died June 20, 1931, without issue, leaving the residue of her estate in trust for charitable and educational purposes. Julia R. G. Rogers died unmarried December 22, 1944, leaving the residue of her estate to Goucher College. Appellants are three sisters, great-grandchildren of a first cousin of Mr. Scribner, and are his heirs and next of kin at December 22, 1944, the date of Miss Rogers’s-death. By the deed dated November 25, 1859 Mr. Scribner and wife granted unto “Henrietta E. Scribner, in fee”, a described piece of ground in Baltimore, habendum unto Henrietta, “her heirs and assigns for ever”, in trust for Julia R. G. Rogers for life, and from and after her death, “in trust for her child or children, if more than one child, to be equally divided between them”, but in case she should die “without issue living, or descendant or descendants of the same,—then in Trust for the children of the said Samuel Scribner, to be equally divided between them, the child or children of any deceased child of the said Samuel Scribner, to take and have the part or share to which the parent, if living, would have been entitled”, with full power to Henrietta to sell the trust estate or any part for reinvestment or to lease.

By his will, dated November 29, 1859, Mr. Scribner gave his wife all his estate for life, and from and immediately after her death gave it to her “heirs at law * * *, their heirs, Executors, Administrators, and Assigns forever.” By his codicil, dated April 9, 1866, he revoked the devise and bequest to her heirs at law, and “in lieu thereof” from and after her death he gave to his daughter Mary E. Mead one-third of his estate, to his daughter Henrietta E. Scribner one-third, and to his daughter Henrietta E. Scribner one-third in trust for his granddaughter Julia R. G. Rogers for life, with full power to Henrietta to sell the trust estate or any part and reinvest the proceeds or to ³³⁷ lease, and from and after the death of Julia R. G. Rogers, “then in trust for her child or children or descendant or descendants of the same, if any, she should have”, but in case she should die “without leaving a child or children or descendant or descendants of the same living at the time of her death, then and in that case said trust estate and property to descend to and become the property absolutely of the said Mary E. Mead and Henrietta E. Scribner in equal portions when this trust shall cease.” On June 24, 1904 Safe Deposit and Trust Company was by orders of court designated substituted trustee under the deed and under the will. All or part of the original trust property has been sold and the proceeds reinvested in personal securities, but one or both of the trusts include ground rents and other real estate. The value of the trust estate under the deed is now $18,609, of that under the will $25,826. As trustee under the deed and under the will and as executor of Miss Roger’s will, Safe Deposit and Trust Company filed a petition for construction of Mr. Scribner’s deed and will and for directions as to distribution thereunder.

The lower court decreed distribution of both trust estates, one-half to Miss Rogers’s executor, one-fourth to Mrs. Abbey’s administrator c. t. a. and one-fourth to Frederick Mead’s administrator c. t. a. Appellants claim the entire trust estate under the deed, abandoning a like claim to the trust estate under the will. They contend that: (1) The deed gave, after Miss Rogers’s equitable life estate, alternate contingent remainders to two or more “classes”, (a) “her child or children”, or perhaps (by implication) “descendants of the same”, (5) “the children of Samuel Scribner”, (c) “the child or children of any deceased child of Samuel Scribner” to take the “share to which the parent, if living, would have been entitled”. (2) The deed vested the legal fee in the trustee, determinable in the event that at the death of Miss Rogers no member of any of the specified classes was living, and left in Mr. Scribner a possibility of reverter in that event.

(3) This possibility of ³³⁸ reverter was not devisable by Mr. Scribner or his successive heirs or devisees, but at the death of Miss Rogers the fee vested in appellants as the heirs of Mr. Scribner at the happening of the contingency. Appellants must maintain all three contentions, (1) that the contingent remainder to Mr. Scribner’s “children” was a gift to a “class”, contingent both as to the persons and the event, and not to Mrs. Mead and Henrietta, by designation as his “children”, contingent only as to the event, (2) that the undisposed of interest was a mere possibility of reverter, and not a reversion, and (3) that this possibility of reverter was not devisable by or descendable from Mr. Scribner or any of his “intermediate” heirs or devisees before Miss Rogers’s death. 1. Is the limitation to Mr. Scribner’s “children” (a) a gift to a “class” or (b) a gift to designated individuals, i. e., Mary E. Mead and Henrietta E. Scribner, who at the date of the deed were his living children? In other words, was the gift to his children conditioned upon survival at Miss Rogers’s death?

A gift to a class has been defined as a gift of an aggregate sum (1) to a body of persons uncertain in number at the time of the gift, (2) to be ascertained at a future time, and (3) who aré all to take in equal or some other definite proportions; the share of each being dependent for its amount upon the ultimate number of persons, Jarman, Wills, 6th Ed., 232; Miller, Construction of Wills, §§ 67, 237; Dulany v. Middleton, 72 Md. 67, 77 , 19 A. 146 ; Chism v. Reese, 190 Md. 311 , 58 A. 2d 643 , this day decided. Cf., Restatement, Property, § 279. Where the person to take is certain, a contingent remainder is transmissible; but this rule does not apply where there is a limitation to children as a “class” and there are those of the “class” (or none) in being at the time the contingency happens and the estate becomes vested. It has been said that “where there is an ultimate limitation upon a contingency to a class of persons plainly described, and there are persons in esse answering the description when the contengeney happens, they ³³⁹ alone can take”.

Demill v. Reid, 71 Md. 175, 191 , 17 A. 1014, 1016 ; Miller, supra, § 237. Mr. Miller remarks (page 676, note 4) that the result of this rule sometimes is that children of deceased “children” are excluded from their parent’s share; “an unfortunate result, based upon a very technical rule”. He also says (§ 67, page 186, note), “There are many conflicting decisions on points arising in the subject of gifts to a class. The English courts seem at times inclined to regard their decisions as having established fixed rules, largely based upon the principle of survivorship in joint tenancy; but the American cases, with some exceptions, are generally based more firmly upon the intention, the principles of joint tenancy not being favored in this country.” Gf.

Restatement, Property, Chapter 22, Introductory Note, pp. 1445-1451. One author doubts whether a majority of courts support the rule, in Demill v. Reid, that an alternative contingent remainder to a class is conditioned upon survival, though a single remainder expressed in the same words would not be so conditioned. Simes, Future Interests, § 391; cf., Bouldin v. Dean, 167 Md. 101, 106 , 173 A. 26 . Another author says that probably a majority of the courts still support the rule, but suggests that this court re-examine Demill v. Reid.

Reno, Alienability and Transmissibility of Future Interests in Maryland, 2 Maryland Law Review 89, 118, 119. The Restatement, Property, seems to regard survival as a qúestion of construction, in each case, with respect to class gifts and other gifts, not necessarily an implied condition of class gifts, vested or contingent. If it does not directly deny the rule as to alternative remainders in Demill v. Reid (see § 261), it seems to do so by implication (§§ 249-254; 296 (2), comment j), but to affirm the converse as a guide to construction of single remainders. §255. For the particular purposes of (a) alienation, subject to survival (Hans v. Safe Deposit & Trust Company, 178 Md. 52, 62 , 12 A. 2d 208, 213 ), and (b) construction and application of a tax statute (Safe Deposit & Trust Company v. Bouse, 181 Md. 351 , 29 A. 2d 906 ), we have held that a ³⁴⁰ “future executory estate or interest” or a remainder to grandchildren living at the death of a life tenant is “vested” in interest, subject to be divested, during the life tenancy.

These cases are not to be regarded as overruling Demill v. Reid and the rules of construction of class gifts, which have been too long and too often approved by this court to be now overruled. However, the Jarman definition of a class gift and the effect of such a gift in Demill v. Reid are both predicated on the intention of the testator to make a gift to “a body of persons uncertain in number at the time of the gift, to be ascertained at a future date.” Without such an intention, there is no class and the lore of class gifts, including Demill v. Reid, is irrevelant. Cf. Restatement, Property, § 279, comment b.

The “antithesis” of a class gift “is a gift to an individual either by name or by some description sufficiently explicit to permit the donee to be identified as the particular individual for whom the gift was intended”. Boulden v. Dean, 167 Md. 101, 106 , 173 A. 26, 28 . The last case in which Demill v. Reid was cited by this court involved “such gifts to persons designated by description”, viz., contingent remainders to “my other children”, who elsewhere in the will were mentioned by name. Hammond v. Piper, 185 Md. 314, 318 , 44 A. 2d 756, 757 .

Though Demill v. Reid has frequently been cited by this court, the result in that case has seldom been reached in subsequent cases. In Stahl v. Emery, 147 Md. 123 , 127 A. 760 , a similar result was reached with respect to children who predeceased the testator. In 1929 this result was prevented under future wills by amendment of the lapsed legacy statute. Code, Art. 93, secs. 340, 341.

In Robinson v. Mercantile Trust Company, 180 Md. 336, 343, 344 , 24 A. 2d 299 , 138 A. L. R. 1427, what was said in Stahl v. Emery as to remainders to a class after a life estate was held to be obiter. In the later cases, and some earlier, when gifts were not expressly conditioned upon survival, e. g., by the words “then living” or other unequivocal words, they were, by the rule of early vesting or by analogous reasoning, held ³⁴¹ not to be class gifts, or by early determination of class membership they became vested and ceased to be class gifts. Throughout “the apparently conflicting, and often confusing, mass of decisions on the subject” of class gifts, “certain canons * * *, while subordinate to the general rule that the obvious intent of the testator must prevail, have been generally recognized as having a certain persuasive force. One is that a gift to a group of persons in esse nominatim is a gift to the individuals and not to a class (Underhill on Wills, § 552) ; another is that a gift to persons in esse and definitely fixed and identified by the words of the gift at the time is to the individuals and not to a class (Miller on Wills, § 68).

Again, it is generally held that, in the absence of a clear indication of a contrary intent, the time at which the membership of a class is fixed and determined, and at which the respective interests of its members become vested, and assume the character of a tenancy in common, is at the death of the testator. 13 A. L. R. 616; Alexander on Wills, § 880.” Newlin v. Mercantile Trust Company, 161 Md. 622, 637 , 158 A. 51, 57 . In the case at bar lapse of time no doubt has hidden facts and circumstances which might possibly have thrown light on persons and things designated by the words of the deed. We do not know the age of Mr. Scribner’s wife, the condition in 1859 of his or her health or estate, or the financial condition of his daughters or his motherless grandddaughter, or whether Mrs. Mead had yet married or Mr. Rogers had died or remarried, or whether Mr.