Holloway v. Safe Deposit & Trust Co.

Adkins, J., delivered the opinion of the Court. John Q. A. Holloway, by his will elated December 23rd, 1903, devised and bequeathed one-sixth of the residue of his estate to the Safe Deposit and Trust Company of Baltimore, in trust to invest the same in such manner as to said trustee shall seem best, and to collect the income from time to time arising from the investment so to be made by it, and to pay over the net income to his son John E. Holloway, “so long as he shall live, and at the death of my said son John E. Holloway, in trust to divide the corpus or principal of the property and estate so theretofore held in trust for him among his children and descendants in such portions as my said son shall by last will and testament direct or appoint, but if my said son shall die without having exercised such power of testamentary appointment, then at his death said trustees shall divide the same in equal portions among the children of my said son John E. Holloway, if any he shall have then living, and the then living issue of any child of his who may then be dead, such issue to represent its or their parent in the distribution^ and to take only the share or portion to which the parent if then living would be entitled. But if my said son John E. Holloway shall die without leaving children or descendants him surviving, then and in that event, the said trustee shall at his death pay over and deliver absolutely one-third of the corpus or principal of said trust fund and property to my son Edward Lee Holloway, free and clear of all trust, and shall continue to hold the remaining two-thirds thereof in trust in equal shares for my daugh ³²⁴ ter Anna Elizabeth Holloway and my son Clarence J. Holloway, in accordance in all respects” with the terms of trusts created for them in other paragraphs of the will. “With the proviso, however, that in any event if my said son John E. Holloway shall leave a widow him surviving and born in my life time, the trustee shall at his death retain for division at her death or remarriage, whichever shall first occur, one hundred thousand dollars of the trust fund and property, and shall only during her life or widowhood, pay over to her at regular stated periods the income arising from said sum of one hundred thousand dollars, which principal sum it_ shall divide as hereinbefore provided at the death or remarriage of such widow.” Susanna Holloway, wife of John Q. A. Holloway, by her will dated March 20th, 1907, devised and bequeathed to said trustee in trust for her son the said John E. Holloway, for life, one-fourth of the residue of her estate in the same language and with the same remainder as to children and descendants as in the will of her husband, but providing that in case of failure of children or descendants surviving, the trustee should pay over absolutely to her son Edward L. Holloway one-sixth part of the trust fund, and continue to hold in trust for her daughter Anna Elizabeth Holloway and her son Clarence J. Holloway, each one-sixth part, the remaining three-sixths parts to be paid over to certain religious associations named as defendants in the bill filed by the trustee. There are three codicils to this will, the last dated October 20th, 1911.

John Q. A. Holloway died in January, 1904, and Susanna Holloway in December, 1911. John E. Holloway, at the time these wills were executed, was living with his wife, Anne McClellan Holloway, whom he married in June, 1899. They lived in Baltimore several years, in Hew York five or six years, travelled considerably, visited Biarritz, France, several times, and settled there in 1905 or 1906, and continued to live together there until the 5th day of May, 1911, when they formally separated, ³²⁵ having executed an agreement of separation. There were no children born to them.

She survived him and they were never divorced. In Biarritz he became acquainted with a little girl named Marie Calou, then about twelve years old, to whom he became very much attached. Subsequently Mr. and Mrs. Holloway took an apartment in the house where this girl lived with her grand-parents. When she was about eighteen, in 1908, the illicit intercourse between them began.

In the early part of 1912, after the death of his mother, they came to Baltimore, where Miss Oalou was ill for several months and in July, 1912, they went to Reno, Nevada, with the intention of making that their home, and there Grace Suzanne Holloway was born in September, 1912, as the result of this illicit- intercourse. Her father promptly made out and filed in the department of vital statistics of that city a birth certificate, giving the name of the child as above, and acknowledging her to be his child. They continued to live as a family in Reno for several years, during which time she was publicly acknowledged by him to be, and generally recognized as, his child. While living in Nevada John E. Holloway endeavored to obtain a divorce from his wife in order that he might marry Miss Calou, but failed.

After about three years residence in Reno, he moved with Miss Calou and Suzanne to California, where they lived as a family until his death in 1925. There also he held out Suzanne as his child, and was in every way an affectionate father. It is contended by appellant that there, too, he complied with the legitimation statute. We shall not stop to discuss the arguments pro and con on this point, as it would add nothing to the strength of appellant’s case to hold that legitimation was accomplished a second time, if it had been effected in another state.

On the 24th day of March, 1913, John E. Holloway made a will in which he executed the powers of appointment under the wills of his father and mother in favor of “my beloved daughter, Grace Suzanne Holloway, born to me and ³²⁶ Marie Calou, at the city of Reno, County of Washoe, State of Nevada,upon the 23rd day of September, A. H. 1912”; and appointed Marie Calou as executrix. He left no child or descendant other that Grace Suzanne. On being advised of the death of Holloway, and of his will, the trustee filed a petition in Circuit Court No. 2 of Baltimore City, which had taken jurisdiction of the trust under John Q. A. Holloway’s will, asking for a construction of the language of said will, “in so far as construction may be necessary for the determination of the rights of all parties who may be entitled thereunder”; and that the court determine for whose benefit said share “is now held and/or distributable in view of the death of the said John E. Holloway, leaving a will as. aforesaid.” And on the same day the trustee filed a bill of complaint against all the parties who were or might be interested under the wills of Mrs. Susanna Holloway and John E. Holloway, asking the court to take jurisdiction! over the further administration of the trusts created by Mrs. Susanna Holloway, and for the construction of that will so far as may be necessary for a determination of the rights of all parties who may be entitled thereunder. The cases proceeded to submission for decrees, when the learned chancellor decreed, in effect, in the cases respectively, that John E. Holloway died without a child or descendant within the meaning of the wills of his father and mother; that the powers of appointment had not been validly exercised by him; and that the part of the corpus of the two estates which had been held for his benefit passed to those who were to take under said wills on the happening of the contingency of his death without children or descendants.

From those decrees these appeals were taken and by agreement of counsel were brought up in one record. Eevised Laws, 5833, of the State of Nevada provides: “Sec. 9. The father of an illegitimate child, by publicly acknowledging it as his own, or receiving it as such, with the consent of his wife, if he is married, ³²⁷ into his family, or otherwise treating it as his legitimate child, thereby adopts it as such; and such child shall thereupon and thenceforth, be deemed, for all purposes, legitimate from the time of its birth. * * *” It is strongly urged by appellees that as said section 9 is an integral part of the Nevada laws passed to provide for the adoption of children, it cannot be regarded as a legitimating statute, and should not be given the effect that such a statute would have. But adoption and legitimation are every where recognized as two different things.

Unquestionably the section referred to provides that an illegitimate child adopted as .provided by that section “shall thereupon and thenceforth, be deemed for all purposes, legitimate from the time of its birth.” And it further provides that the provisions of the foregoing sections of the act do not apply to such an adoption, except as specified in section 4; and section 4' provides that an illegitimate child cannot be adopted without the consent of its mother, nor without its own consent in writing, if over the age of twelve years. This section is clearly, therefore, separated from the other sections which apply to the adoption of children of other parents, and it is made plain that the intention of the act is to fully legitimate a child adopted under section 9. There is no analogy between this section and the adoption statute in Maryland. It was proved by competent witnesses that under the construction of this statute by the courts of Nevada, a compliance with any one of the alternative provisions of the statute was sufficient to legitimate a child born out of wedlock, and this opinion is supported by In re Estate of Parrott, 45 Nev. 318 .

It is practically conceded that “children” as used in the wills of John Q. Holloway and Susanna Holloway means legitimate children. But the contention of appellants is that the legitimation of Grace Suzanne Holloway in Nevada gave her the status of a legitimate daughter of John E. Holloway, which as a ³²⁸ matter of comity should be recognized everywhere, and which gave her all the rights that a child born to her father in lawful wedlock would have (1) to inherit and take as heir and next of kin from and through him; (2) to take under a will in the capacity of a “child” or “descendant” of her father. Counsel for appellants cite in support of this contention many cases both in England and in this country, including In re Goodman’s Trusts, 17 Ch. Div. 266; In re Andros, 24 Ch.

Div. 637; In re Grey’s Trusts, 3 Ch. Div. 88; Shottowe v. Young, 11 L. R. Eq. Cas. 474; In re Ferguson’s Will, 1 Ch. Div. 483; Ross v. Ross, 129 Mass. 243 ; Green v. Kelley, 228 Mass. 602 ; Irving v. Ford, 179 Mass. 216 ; Irving v. Ford, 183 Mass. 448 ; Moore v. Saxton, 90 Conn. 164 ; Miller v. Miller, 91 N. Y. 321 ; Dayton v. Adkisson, 45 N. J. Eq. 603; Fowler v. Fowler, 131 N. C. 169 ; Bennett v. Toler, 15 Grat.

(Va.) 588; In re Oliver’s Estate, 184 Pa. St. 306; Smith v. Kelley, 28 Miss. 167; Caballerro’s Succession, 24 La. Ann. 573 ; McNamara v. McNamara, 303 Ill. 200 . The case of Birtwhistle v. Vardill, 5 B. & Cr. 438, established the principle that legitimation in another country did not entitle the one so legitimated to inherit land in England; but as to personal property gave such a one all the rights of a child born in lawful wedlock; and in Be Grey’s Trusts, supra, it was held that even in England the exception as to real estate did not apply to a devise, but that a legitimated child would take real as well as personal property under the description of “child” in a will.

In this country, by the great weight of authority, when a child has been legitimated in the state where it and its father are domiciled, it will be held in other states to have the rights of a child born in lawful wedlock, both as to inheritance, and as to taking under a deed or will under the description of “child” or “descendant.” The learned and able counsel for appellees have not referred us to a single case holding otherwise, unless the cases in Maryland about to be considered so hold. But they strenuously con ³²⁹ tend, and with a good deal of force, that in Barnum v. Barnum, 42 Md. 251 ; Jackson v. Jackson, 82 Md. 17 , and Harding v. Schapiro, 120 Md. 541 , Maryland has taken a position in conflict with that held practically everywhere else. A careful analyses of these cases, however, we think, will show that this conflict is apparent rather than real. In Barnum v. Barnum, supra, the question, so far as it relates to this case, was whether John R. Barnum could take personal property as a child or descendant of his father Richard Barnum, under that description in the will of David Barnum the father of Richard.

It was claimed on behalf of John R. that he had been legitimated by the marriage of his father and mother in Arkansas after his birth, but the Court found as a fact that there was no such marriage. It was further claimed that even if there was no such marriage, yet, by the operation of an Act of the Legislature of Arkansas, John R. Barnum was rendered legitimate, as if a valid marriage had taken place, and was therefore capable of taking whatever right that would or could devolve on any legitimate child of his father; that the act was retroactive, and related back to the time of the birth of the child declared to be heir. The act provided “that John Rockwell Barnum be and is hereby constituted a legal heir of Richard Barnum”; “that all laws or parts of laws inconsistent with this act be and the same is hereby repealed”; “that this act be in force from and after its passage.” The act was passed in 1852, eight years after the death of the testator, and by its terms did not go into effect until after its passage. The underlying idea of the Court in holding that the act could have no extra territorial operation may have been with reference only to the question directly in issue (the legitimacy of the claimant) and, in that connection, based on the ground that it went into effect after the death of the testator and could not have been contemplated by him at the time his will went into