Henderson v. Henderson

Urner, J., delivered the- opinion of the Court. The will of Virginia C. Henderson, a resident of the City of Baltimore, who died in the year 1892, created a trust of a portion of her estate in favor of her daughter, Virginia M. Henderson, for life, and a separate trust of the residue of the estate for the equal benefit of her sons, Henry C. Henderson and George B-. Henderson, for their respective lives. It was provided that upon the death of the daughter the estate held in trust for her during her life1 should go to her issue living at the time of her death who might attain the age of twenty-one years, but if no such issue should survive, then the property should vest in her two brothers already named as tenants in common.

There is a provision also that, upon the death of either of the two sons, the half of the residuary estate held in trust- for his benefit should go to his issue who ³¹⁰ might reach the age of twenty-one years. The clause to he construed in this case then follows:' “But in case either of my sons mentioned in this article of my will shall depart this life, - without leaving a child or children, or descendant or descendants thereof living at the time of his- death, or in case he should leave a child or children, or descendant or descendants thereof living at the time of his death, and such child or children, and descendant or descendants, shall all subsequently depart this life under twenty-one years of age, and without issue living at the time of his, her or their respective deaths, then in trust, that the one moiety or half of the estate or property in this article of my last will mentioned shall go to and become the property of my remaining son, and his heirs, executors, administrators' and assigns forever.” Virginia M. Henderson is still living. George B. Henderson died in the year 1902 leaving a son, George Stewart Henderson, who is now twenty-five years of age. H'emry G. Henderson died in March, 1916, without issue, and the question to be .determined relates to the proper disposition of the portion of the estate in which he had a life interest.

It is claimed in its entirety by George Stewart Henderson, as the sole surviving issue of his deceased father, on the theory that it has passed to him, .upon his uncle’s death without issue, in view of the provision of the will that in such a contingency the property should go to the “remaining! son” of the testatrix, “and his heirs, executors, administrators and asrsigns forever.” This theory is opposed by the testatrix’ daughter, Virginia M. Henderson, who asserts that as her brother, George B. Henderson, was not living when the life estate of her brother, Henry O. Henderson, expired, the former did not answer to the description of the “remaining son” to whom, and his heirs, executors, administrators and assigns, the estate in remainder was devised and bequeathed, and that consequently- a condition of intestacy exists as to that portion of the estate, as a result of which it has vested ³¹¹ equally in herself and her nephew as the decedent’s only next of kin and heirs at law. The decision of the question thus presented depends upon the effect to he given the word “remaining” in the clause we have quoted. The nephew’s contention is that it was intended to he understood in the sense of “other,” while the aunt’s theory is that it was used as the equivalent of “surviving.” If the former interpretation is adopted, and the limitation is construed as being in effect, to the “other” son, upon the death of one without issue, it is assumed and urged that no contingency of survivorship prevented the vesting of the remainder in the other son prior to the period of his brother’s death. But if the term “remaining” is interpreted as “surviving,” then the vesting of the remainder in either son would depend upon his actually surviving the son who died without issue.

The will provides that in the event just indicated, “then” the designated portion of the trust estate should “go to and become the property of” the “remaining son.” This strongly suggests that the vesting was to be upon the basis of a status existing at the time when the contingency of the death of a son without issue occurred. The word “remaining” involves the idea of continuance in the same state or position. Century Dictionary; Webster’s New International Dictionary. The son in whom the interest in remainder was intended to vest, on the occurrence of the contingency mentioned, was the son then “remaining.” A son who had previously died could not answer to that description.

The term evidently is synonymous with “surviving” in the sense in which it is here employed. This is the sense in which it has been understood by this Court in other cases in which testamentary limitations have been construed. In Turner v. Withers, 23 Md. 41 , the Court said: “Wo aro of opinion that by the words 'remaining children’ the testator intended those children who might remain alive at the death of the first devisee for life— surviving children. This is the natural and ordinary meaning of the words, and we find nothing in the will to warrant ³¹² any other interpretation.” In that ease the interests devised to the “remaining” children were for their lives, and this in itself was conclusive as to the intention that only surviving children should be entitled to' such estates.

But the definition there given of the term “remaining” is