Hitchens v. Safe Deposit & Trust Co.

Henderson, J., delivered the opinion of the Court. In the case of Hitchens v. Safe Deposit and Trust Company, 193 Md. 53 , 66 A. 2d 93 , we considered the question whether the divorced wife of Herbert Henry Hitchens could reach his interest under the will of his grandfather by a non-resident attachment based upon a separation agreement. In the instant case, questions are presented as to the quantum of his interest, and whether it can be reached by the claimant in an equity proceeding. This proceeding was initiated by a bill of complaint, filed by the- surviving trustee in the Circuit Court of Baltimore City, praying a construction of the will of John H. Hitchens.

Answers were filed by all the beneficiaries, and by Laura May Hitchens, who set up her claim under the separation agreement, praying the chancellor to award her one-third of the share of Herbert in the net assets and the arrears of overdue payments of “permanent alimony”, under the separation agreement. The chancellor assumed jurisdiction of the trust and passed two decrees, one authorizing a sale of the property without prejudice to the rights of the parties and fixing the interest of Herbert at one-quarter of the pro ⁶⁵ ceeds of sale, and the other disallowing the wife’s claim, on account of the spendthrift trust provisions of the will, and ordering that the one-fourth of the corpus and accrued income be paid to Herbert. From those decrees only Laura May Hitchens has appealed. Upon the death of the testator’s wife and children, the will directed the trustee to pay the net income as follows: “After payment to my said grandson, John H. Stocksdale, the portion of the income of my estate bequeathed to him in this my will, 1 give, devise and bequeath said balance of the net income therefrom unto my grandchildren (including my grandson, John H. Stocksdale) living at the time of my death, in equal shares (if there be more than one or to the survivor of them, if there be but one living at the time of my death) until my youngest grandchild living at the time of my death shall reach the age of twenty-one years, when the trust shall cease and all the property, chattels and effects then consituting the corpus of the estate shall be sold and the proceeds of such sale shall be divided by my said [trustee] * * * among the grandchildren entitled to take under this my will.” At the time of his death the testator left surviving him four grandchildren: Herbert Henry Hitchens, John H. Stocksdale, Margaret Leach (Holloway), and Robertson Leach.

John H. Stocksdale died without issue and intestate in 1929. The appellees contend that his interest passed to his mother, Grace Leach, and in turn to Mrs. Holloway and Robertson Leach upon her death in 1932. Upon the death of Sadie A. Meakin, the last surviving life tenant, in 1947, all of the living grandchildren of the testator were over twenty-one years of age, and consisted of Herbert Henry Hitchens, Margaret Leach (Holloway) and Robertson Leach. The appellant, claiming as partial assignee and creditor of Herbert under the separation agreement, contends that the remainder vested in the three grandchildren living at the termination of the life-estate in equal one-third shares, or, in other words, that by a true construe ⁶⁶ tion of the will there was a condition of survivorship until the termination of the life-estates.

We find no merit in this contention. It is perfectly clear that the grandchildren entitled to take shares of the net income, after the termination of the life-estates and until the