Gambrill v. Gambrill

Urner, J., delivered the opinion of the Court. By the will of Dr. Thomas Edmondson, of Baltimore City, who died in 1856, a trust was created, as to a stated share of his residuary estate, for the benefit of each of his daughters during her life, and after her death “for such uses, intents and purposes” as she might by her last will direct and appoint. It was provided that if any of the daughters should die intestate, after-marriage or attaining the age of twenty-one years, her share of the estate should go to- her heirs under the laws of Maryland. The testator’s daughter, Emma, was married in 1869 to Gabriel D. Clark, Jr., and died in 1812, survived by her husband and a daughter and leaving a will whose sole object, as indicated by its terms, was to exercise the power of testamentary disposition given her by the will of her father as to the estate of which he had made her the life beneficiary.

The will of Mrs. Clark, after making certain pecuniary bequests, disposed of the residue of the estate as follows: “All the rest and residue of my estate, real, personal or mixed, I give, devise and bequeath to my dear husband, Gabriel D. Olark, Jr., for and during his natural life; and from and immediately after his death I give, devise and bequeath my said estate to my daughter, Gabrielle Edmondson Clark, for and during her natural life, with power and authority to my said daughter, upon her arriving at the age of eighteen years, or upon her marriage, to dispose of said estate by last will and testament to such person or persons as she may think proper; but in case of the death of my said daughter without leaving a will, then the estate is to go to the child or children of my said daughter, their heirs or assigns, to be equally distrib ⁵⁶⁷ uted between them, if more than one, per stripes and not per capita. But in the event of the death of my said daughter without leaving children, and without leaving a will, then I give and bequeath the said estate to such person or persons as may under the Laws of the State of Maryland be entitled to take an estate in fee from me.” The testatrix appointed, her husband as the executor of her will and conferred upon him power and authority to sell all or lany paid of the estate and to reinvest the proceeds. The estate now consists of certain real and leasehold properties in Baltimore City, of considerable value, and securities worth about $35,000.00. Mr. Clark upon the death of his wife came into possession of the estate, and held it as life tenant until his death in 1910.

He was survived by his daughter, named in the will, who was married to Chauncey Gambrill in 1892. They have one child, a daughter, now about nine years of age. In this amicable proceeding, the inquiry is as to the untare and extent of the interest vested in Mrs. Gambrill under the wills to which we have referred. The theory of the bill is that the attempted exercise by Mrs. Clark of the power of appointment given by her father’s will was in violation of the rule against perpetuities and therefore totally ineffective and void, and that the devolution of the estate is consequently governed by the provision, in Dr. Edmondson’s will, that upon the death of any of his daughters intestate her share should pass to her heirs.

The result of this construction would be to vest the estate in Mrs. Gambrill absolutely, as she was Mrs. Clark’s only child and heir at law. This view was not accepted by the Court below, but its conclusion was that the execution of the power of appointment was valid to the extent of the successive life estates it created for the benefit of the husband and daughter of the testatrix, and that it was void only in so- far as it sought to subject the estate to a second power of testamentary disposition. It was accordingly decreed that Mrs. Gambrill was entitled to an estate ⁵⁶⁸ for life only, and that at her death the property would belong to the heirs of Mrs. Clark'upon, the theory that she died intestate as to the remainder and that the title passed as provided by the will of her father in reference to such a contingency. .For the purposes of the present inquiry the dispositions made by the will of Mrs. Clark under the power conferx-ed by lxer father’s will mixst be treated as if they had been xxxade by the testator from whom the axithority emanated. It is a settled rule that in order to test the validity of such .appointments they must he construed as if they were inserted in the instrument creating the power.

Levenson v. Manly, 119 Md. 517 ; Reed v. McIlvain, 113 Md. 146 ; Graham v. Whitridge, 99 Md. 248 ; Thomas v. Gregg, 76 Md. 174 ; Albert v. Albert, 68 Md. 372 . If the appointments made by Mrs. Clark are read into the will of her father, and are considered in connection with the other terms of that instrument, he xnxxst be regarded as having devised and bequeathed the estate in trust for Mrs. Clark’s benefit during 'her life, and' after her death for her husband for his life, and after his death for their daxxghter for her life, and after her death “for such person or pex’sons as she xnay think proper” to appoint by her will; and in the event of her death without leaving a will then for her child or ehildrexx, their heirs or assigns, per stirpes, and ixx case of her death withoxit leaving children or will, then for the heirs of Mrs. Clark under the laws of Maryland. The qxxestion we have to decide is to what extent, if at all, this disposition of the estate contravenes the rxxle against perpetuities. The object of the xuxle is to prevent the limitatioxx of estates for future vesting upoxx contingencies which are not cexTain to happen within the period of a life or lives ixx being, when the instrumeixt making the dispositioxx takes effect and twexxty-oxxe yeax*s beyond, with an additional allowaixce of time for the possible birth of a posthumoxxs child.

Dallam v. Dallam, 7 H. & J. 220; Newton v. Griffith, 1 H. & G. 111 ; Biscoe v. Biscoe, 6 G. & J. 232 ; Barnum v. Barnum, 26 Md. 171 ; Heald v. Heald, 56 Md. 300 ; Starr v. ⁵⁶⁹ Starr M. P. Church, 112 Md. 182 ; Hollander v. Central Metal Co., 109 Md. 157 ; Graham v. Whitridge; Levenson v. Manly, supra. The rule is applicable to limitations of either legal or equitable estates in either real or personal property. Graham v. Whitridge, supra; Biscoe v. Biscoe, supra; 1 Perry on Trusts, secs. 378, 382. It relates to the commencement of future interests and not to their duration, and it is therefore immaterial whether' the estate limited is in fee, for life or for years, provided the event upon which the limitation depends isi certain to occur within the period which the rule defines.

Heald v. Heald, supra; Hollander v. Central Metal Co., supra; Graham v. Whitridge, supra; Lewis on Perpetuities, 460-1; 1 Jarman on Wills, 340; 1 Perry on Trusts, sec. 380; 1 Tiffany on Real Property, sec. 152; Gray on Perpetuities, sec. 232. In Graham v. Whitridge, supra, the terms and application of the rule were stated and discussed by Judge McSheeby as follows: “The period fixed and prescribed by law for the future vesting of an estate or interest, is a life or lives in being at the time of its commencement and twenty-one years and a fraction of a year beyond, to cover the period of gestation; and where property is rendered inalienable or its vesting is deferred for a longer period, the law denounces the devise; the bequest or the grant as a perpetuity and declares it void. Albert v. Albert, 68 Md. 372 ; Goldsborough v. Martin, 41 Md. 501 ; Barnum v. Barnum, 26 Md. 171 * * *. In determining this question of remoteness, it is an invariable principle that regard is to be liad to possible and not merely actual events.

It is not determined by looking bach on events which have occurred and seeing whether the estate has extended beyond the prescribed limit, but by looking forward from the time the limitation was made and seeing whether, according to its terms, there was then a possibility that it might so extend. 22 Am. & Eng. Ency. (2d ed.) 707. The event upon the happening of which the remainder is to vest must be one that is certain to happen within the prescribed period or the limitation will be bad.” ⁵⁷⁰ In the present ease the final limitation is to the appointees of a life tenant who was not in being when the will to' which the power of appointment is to be referred became operative, or to the children of the life tenant in the event of her failure to exercise the power.

This alternative limitation is plainly in conflict with the rule against, perpetuities. It provides for a future estate whcse vesting is dependent upon a contingency which-will not be determined until the expiration of a life which came into existence after the death of the original testator. Upon no possible theory can it be said that the remainder thus limited was certain to vest within the period prescribed by the rule. It does not result, however, from this conclusion that the life estate given Mrs. Gambrill under the first power of appointment must be held invalid.

On the contrary, the rule is that “Where an interest or estate is given by deed or will with a limitation over on a specified contingency, such limitation, if it violates the rule against perpetuities, is, for the purpose of determining the effect on the prior disposition of the property, to be considered as stricken out, leaving the prior disposition to operate as if a limitation over had never been made.” Graham v. Whitridge; Heald v. Heald, Supra; Goldsborough v. Martin, 41 Md. 488 ; Deford v. Deford, 36. Md. 168. In view of this principle we have simply to determine whether the life estate provided for Mrs. Gambrill under the power of appointment conferred on her mother, Mrs. Clark, by the will of her grandfather, Dr. Edmondson, was certain to vest within the period of the rule against, perpetuities. As the disposition is to be regarded as having been made by the will of the grandfather, the period must be computed with reference to the time of his death, and the limitation in question is to' be treated as if made by him for the benefit of an unborn, granddaughter for life upon