Fisher v. Wagner

Boyd, C. J., delivered the opinion of the Court. Richard D. Fisher, in his own right, as executor of Robert A. Fisher and as administrator of the estate of Samuel W. Fisher filed a petition asking the Court to ascertain and declare the true meaning and effect of the will of Robert A. Fisher, and to guide and direct him in the administration and distribtion of the fund referred to in the petition. The questions-for our determination arise in this way: James I. Fisher, by his will, dated Movember 13th, 1866, and admitted to probate August 14th, 1877, directed that, after setting aside his wife’s dower and thirds, the residue of his estate should be divided equally among his four children, Robert- A., Richard D., Aminta E., who afterwards married Charles Green, and Mary M. Wagner, hut provided that the shares of his two daughters should be held in trust for them for life, with remainder to their children. Mrs. Wagner died several years ago, leaving four, children who are of age and are parties to this proceeding, and Mrs. Green died on the 16th day of March, 1908, without leaving issue.

The portion of the will of James I. Fisher material to this case is as follows: “But in case my said daughter, Aminta E., shall depart this life without leaving a child or children, or descendant or descendants of a child of hers, living at the time of her death, or in case she should leave a child or children, or descendant or descendants thereof, living at her decease, and such child or children and descendant' or descendants shall all subsequently depart this life under twenty-one- ²⁴⁵ years of age and without issue living at the time of his, her or their respective deaths, then in trust that the said last mentioned one-fourth part or share of the said rest, residue and remainder of iny estate and property aforesaid shall be disposed of in manner following: One equal third part thereof shall go to and I do hereby give, devise and bequeath the same to my son, Robert A. Fisher, above named, liis heirs, executors, administrators and assigns, absolutely and forever,” etc. Robert A. Fisher, after leaving to his wife, Emily P. Fisher, all the household furniture and plate of which he ndght die possessed, disposed of his estate by will dated February 3rd, 1877, as will be hereafter shown. He died on the 4th day of February, 1881, without leaving children, and his wife, whom he married in 1871, died in 1893. When he made his will he was forty-four years of age, had some property in his own right and his father, who was then nearly eighty years of age possessed an estate of about half a million dollars. His wife was ten years his junior and to use the language of the qtetiiion, “although the only issue of their marriage so far had been an infant, whose' premature birth, in April, 1873, cut short its chance of life, he and his wife were both in good health and still in the prime of life, and there was no reason to anticipate that they would have no other children for whom to make provision in his will.” James 1 Fisher, his father, died on July 30th, 1877, and Robert A. served with Richard D. and their mother as one of the executors of and trustees under James I. Fisher’s will, and was familiar with its provisions, including that creating the trust for the benefit of Axninta E. Green.

The only child of Mrs. Green, which was born in December, 1871, died on March 28th, 1878, having never shown any promise of health or strength. At the time of its death, Mrs. Gi’een had been married nearly nine years, was in the forty-third year of her age, while her husbaixd was then seventy years old, and the petition alleges that Robert A. Fisher therefore knew for some time before his own death that “one-third of the remainder ²⁴⁶ after his said sister’s life estate under her father’s will was for all practical purposes sure to come ultimately to him or his representatives.” The Safe Deposit and Trust Company of Baltimore was substituted as trustee in place of Mr. Richard D. Fisher, and now has a fund in hand ready for distribution. The appellees contend: (1) That the interest in the contingent remainder created by the will of Tames I. Fisher, above quoted, which would have been taken by Robert A. Fisher, if he had survived the happening of the contingency, could not pass by any will made by him; and (2) That if it could, the language used by him in his will was not adequate to transmit this interest. If the views of the appellants are correct, the fund will go to the children of Richard D. Fisher, while if those of the appellees prevail, one-half will go to him and the other half to the children of Mrs. Wagner.

The latter are the appellees—the Court below having determined by its decree: “That no interest in the contingent remainder limited in the will of Tames I. Fisher upon the death of Aminta E. Green, passed under the will of Robert A. Fisher, and that he died intestate threeof, and the same vested in the next of kin of said Robert A. Fisher living at the death of said Aminta E. Green.” The answer of the appellees admits the facts alleged in the petition, but the inferences sought to be drawn from those alleged in paragraphs four and five and the argument based thereon they leave to the judgment of the Coiirt. It is proper to say that the proceeding is entirely friendly .and the respective parties seem to be wholly free from those feelings which so often exist, and are sometimes made manifest by the record, in cases involving controversies over estates, although the arguments of counsel were exceptionally able, and the rights of the parties under the law fully and thoroughly presented according to their respective contentions. As there was no appeal from the decree of August 3i*d, 1908, declaring that Stanley K. Green has not “by virtue of being the adopted son of Aminta E. Green, any right, title ²⁴⁷ or interest as one of the next of kin or heirs at law of Robert A. Fisher, brother of the said Aminta E. Green, in or to any part of the property now held” by the trustees, we are not called upon to pass on that, but would add that as the Act of 1892, which provided for the adoption of children in Alaryland and giving such adopted children certain rights, was passed some years after the death of James I. Fisher, there would seem to be no doubt that Stanley R. Green was correctly adviised, as he in effect stated in his answer, that he was not entitled to any interest in the fund in controversy. 3. As Airs.

Green died without leaving any issue, if Robert A. Fisher had survived her, he would undoubtedly have taken a share in the remainder left Airs. Green, under the clause of his father’s will above quoted, but the question is whether he had such an estate, right or interest in that sharp as he could dispose of by will. The contingency attached to his taking it did not in any way relate to his capacity to take', and there was no contingency as to who was to take, but Robert A. Fisher was distinctly named as the one. The learned counsel for the appellees argued that the distinction made by some authorities between the case of a person designated to take a remainder upon the happening of a future contingency and that of persons who belong to a class which is to take in the same event is highly artificial.

Such distinction, however, has not only been recognized in this State, but it seems to us to be a logical one. If a testator names a person who is to take upon the happening of a contingency, it is altogether different from naming a class of persons who are to take. If, for example, he names A. as the object of his bounty, on the happening of a certain contingency, it is known who is to so take, but if he leaves his estate, upon the happening of a contingency, to the survivor of 13., O. and D:, or to such of the children of A. as may then be living, it cannot be said in advance who will take, if the contingency happens. / It does not seem to be altogether logical to say that Robert A. Fisher had no interest because he died before the happen ²⁴⁸ ing of the contingency, but that his heirs or next of kin, as such, can take. Independent of statute, if a legatee or devisee named in a will dies before the testator, his heirs or next of kin would not take, and the devise or the legacy would lapse, because he did not live until the time when such devise or legacy would be effective, and so it would seem to be logical that if he took nothing because he died before the contingency happened, that the heirs or next of kin ought not to take.

In 1 Roper on Legacies, ch. 10, sec. 4, page 596, after stating that if the substituted legatee dies before the contingency happens, upon which he is to succeed to a legacy, his representative will be entitled to it so soon as the event takes place, it is said: “Suppose, then, a bequest be made to A., but if A; died under twenty-one, or without leaving issue or children, fo B., although B. happened to die before A., B.’s personal representative would be entitled to receive the legacy upon the happening of the contingency, on the ground of its being vésted in right in B. previously to his decease,” and there are many other authorities to the same effect. ' But as the counsel for the 'respective parties differ as to the construction of some of the decisions of this Court,' and as there may be some apparent, although not, in our judgment; real, conflict between some of those decisions, it will be well to review them at some length. In Bnively v. Beavans, 1 Md. 208 , the will gave to Mrs. Watkins certain lands for her ■life; arid at her death to go to two sons. In the event of the sons’ death without issue before their mother, she was to have the power of disposing of all she took under the will, and it provided: “I will and devise, in the event of the death of my sons, Thomas and Edgar, before they are twenty-one years-of age, that my brother, Greenbury M. Watkins, shall have their whole estate, by paying to my wife Ellen one thousand dollars.” It was said by the Court: “It is well settled, that an executory interest of this kind is transmissible, and will go to the representative of the legatee, if he dies before the contingency haj>pens.- 2 Fearns on Bern. 529. It is a contingent interest which vests in right, though not in posses ²⁴⁹ sion.” Again it was there said: “If Greenbury M. Watkins had died before the sons, his contingent interest in their estate would have passed to his representatives, to be enjoyed if the contingency happened.” In Hambleton v. Darrington, 36 Md. 434 , Mrs. Watson devised and bequeathed all the residue of her estate to Zachariah Woollen, in trust, to pay to her mother, sister and brothers certain annuities, and the residue of her income to her son Ilenry for life, and upon certain contingencies (among others, his living'after his sister ceased to bo single, or leaving issue) she devised to him, his heirs, executors and administrators, absolutely, not only the income but also the entire principal of the rest, residue and remainder of her estate, with this proviso: “But in case of the decease of my son Ilenry before my said sister ceases to be single, or if my two brothers above named, or either of them, survives him, then in ease my said son shall not have issue or descendants, I give, devise and bequeath to my said friend, Zachariah Woollen, his heirs, executors, administrators and assigns absolutely, not only the income of my estate, above intended for my said son, but also the entire principal of said rest, residue and remainder of my estate.” Zachariah Woollen died before Ilenry Watson, but after he (Woollen) had made a will.

This Court held that he took a descendible and devisable estate, and in the opinion made the following quotations: “ ‘All estates which are transmissible, either by operation of law or by act of owner, are held devisable. This, it has been long held, extends to a possibility, if it is not a mere naked expectancy, but be coupled with an interest.’ Redfield on Wills, part 1, pp. 388, 389; Fearne on Con. Rem. 311. ‘All contingent estates of inheritance, as well as springing and executory uses and possibilities, coupled with an interest, 'where the person to take is certain, are transmissible by descent, and are devisable.’ 4 Kents Corn. 261. Where the testator bequeaths his personal estate to A., and if he shall die without issue to B., there is such a vested interest in B., if he survive the testator, that although he should die in the lifetime of A., the ²⁵⁰ estate will pass under a devise from Mm, or will go to his personal representatives, in the event of A. dying without issue.’ Barnes v. Allen, 1 Browne C. C. 181; Perry v. Woods, 3 Ves. 204, 208; 2 Redfield on Wills, p. 627, Sec. 51.” That case is exactly in point, and unless overruled, which we will consider later, is the law of this State.

In Buck v. Lantz, 49 Md. 439 , there was a deed of trust, which conveyed real and personal property to a trustee, in trust, for the use of the grantor during her life and after her death for the use of her daughter, Margaret Buck, during her life and after her death, then in trust as to the remainder for such child or children of the daughter as she might leave, hut if the daughter died without leaving descendants surviving her, then in trust to convey the remainder to Mary Harwood, a sister of the grantor. The sister survived the grantor, but died before the daughter, who afterwards died unmarried and without issue, having made a will by which she devised and bequeathed all the property to which she might bo entitled the time of her death to her aunt. It was held that the limitation over of the remainder to the sister of the grantor, after the death of the daughter, without leaving descendants surviving her, was a contingent remainder, which passed upon the death of the siister to her heirs, in whom it became vested upon the happening of the contingency. It is contended by the appellees that this is one of the cases which overruled Hambleton v. Barrington, supra, but we do not so understand it.

It is true the Court said: “If Mary Harwood had outlived Margaret Buck, the younger, there is no doubt that the contingent remainder, thus limited, would have become an absolute estate vested in her, immediately upon Margaret’s death without issue living at that time. But Mary Harwood having died during the lifetime of the tenant for life, so that the estate could not vest in her, it is contended that her heirs have no title to the estate.” But the Court went on to quote from 4 Kent’s Com. 262, that “Contingent and executory, as well as vested interests, pass to the real and personal representatives according to the nature of the inter- ²⁵¹ cat, and entitle the representatives to them, when the contingency happensand again from Barnitz Lessee v. Casey, 7 Cranch, 469, that: “It is very clear that contingent remainders and executory devises at common law are transmissible to tlie heirs of the party to whom they are limited, if he chance to die before the contingency happens.” It was not necessary in that case to determine whether they were devisable, for Mary Harwood had made no will, but the Court did not say, or intimate, that such estates as are transmissible are not devisable, as had been held in Hambleton v. Barrington. Our testamentary laws provide that any lands, etc., which can he conveyed, or descend to or devolve upon heirs, or other representatives, and all personal property which might pass by deed, etc., can he disposed of by will, and hence it might he argued from them that an estate which is transmisible is devisable. In discussing the question who were the heirs of Mary Harwood entitled to the estate, the Court said: “It is clear that those only can take who were in esse at the time when the contingency happened and the estate fell into possession.

That did not occur until after the death of Margaret Buck. She could not, therefore, he heir, or take or transmit any interest in the estate by will or otherwise.” But that does not reach the question in this case. The rule is, that only the heirs of the contingent remainderman who are in esse when the contingency happens and the estate falls into possession can take, and as Margaret Buck was not then in esse, she was not an heir, and, of course, she could not take, or transmit any interest in the estate by will or otherwise, but that does not affect the other rule that an estate which is transmissible is devisable. That clearly means devisable by the designated remainderman, and it does not mean that it is devisable after the contingency happens, for then it is no longer a remainder, hut has become the absolute property of the remainderman—• unless, of course, there be some other provision in the instrument creating it which may affect it.

Judge Gbason delivered the opinion in Buck v. Lantz , and sat in Hambleton v. ²⁵² Darrington , and Judges Bartol, Miller and Alvey