Gilman v. Porter

Briscoe, J., delivered the opinion of the Court. There are three appeals, in the record now before us, but as they are taken from the same decree, they will be considered as one appeal. The bill was filed on the 8th of April, 1914, by the substituted trustee, under the last will and testament of Charles Gilman, late of Baltimore City, deceased, to obtain a construction of certain clauses of his will dated the 22nd day of July, 1856, and probated in the Orphans’ Court of Baltimore City, on the 14th of September, 1861. The clauses of the will in controversy and material to this inquiry are as follows: “All the rest, residue and remainder of my estate, real, personal and mixed, which I may own at the time of my decease I give, bequeath and devise to my executor above named in trust to and for the following uses, viz: “Second: In trust to collect and receive the interest, dividends and other income of the residue thereof, and as the same shall come to his hands, the one moiety or half part of such income to pay over to my said wife, to her sole and separate use, for the period of' her natural life; and the other moiety or half part thereof to pay over to my said daughter, to her sole and separate use, independent of any husband she may have and in no way subject to his control or liable for his debts or other pecuniary responsibilities, for and during the period of her natural life; and upon the occurrence of the death of either, then it is my will, ⁶³⁹ and I so hereby direct, that the whole income be paid over to the survivor to her sole use as aforesaid, for the period of her natural life.

Provided, that in the event of the death of my said daughter during the lifetime of my said wife, and of her leaving a child or children of her body begotten, then it is my will and I hereby direct that the one moiety or half part of said income be paid over for their support during the natural life of my said wife. "Fourth: In trust, at the decease of my said wife and daughter, to pay over and deliver to any child or children of my said daughter of her body begotten, and if more than one, then in equal portions, his, her or their heirs, executors and administrators, forever to have and to hold the whole of said estate, thereby terminating and forever extinguishing this trust.” The testator died in 1861, leaving a wife, Catherine Blanchard Gilman, and one daughter, Ellen Gilman, who at the date of his death, was about 28 years of age, and in 1870 married one William H. Porter. Mr. Porter died in 1873, leaving a widow, and one daughter Nellie G. Porter, who died in 1896 unmarried and intestate. The testator’s wife, Mrs. Gilman died in 1884, and his daughter Ellen Gilman Porter died in 1913, without leaving a child or descendants, but left a will, by which she devised and bequeathed all the rest and residue of her estate real and personalty to the Continental Trust Company of Baltimore in trust, for certain purposes named therein.

The property left by the testator consists of real and personalty, in the nature of ground rents, bonds and stocks and the income from the trust estate under the will was paid over to. Mrs. Ellen Gilman Porter, the testator’s daughter, until her death, on the 6th of October, 1913. There are three different theories or interpretations of the will presented and stated by the parties to the record: First—That the granddaughter of the testator, Nellie Gil-man Porter, at the time of her death in 1896, took a vested ⁶⁴⁰ estate in remainder in the estate of the testator and that this vested estate passed at her death to her mother one of the life tenants under the will. Second—That there was no grandchild of the testator in esse, at the date of the termination of the life estates and the testator died intestate as to the remainder and it passes to his heirs and next of kin; and, Third—That the testator intended that the remainder should pass as to personalty to the representatives and as to realty, to the heirs, of the granddaughter Nellie G. Porter, who were such at the date of the death of Ellen Gilmar Porter, her mother and one of the life tenants under the testator’s will.

The Court below held, and decreed that under the terms of the will, in dispute, the testator intended that the residue of his estate should vest in his grandchildren, their heirs and personal representatives, only upon and after the death of the widow and daughter, and not before;