Hughes v. Safe Deposit & Trust Co.

Sloan, J., delivered the opinion of the Court. The only question on this appeal is the construction of the third item of the will of Hannah E. Surgison, admitted to probate by the Orphan’s Court of Baltimore 'City, November 24th, 1916, which is: “Third; I give and bequeath unto Thomas Hughes, in special trust and confidence, the sum of one thousand dollars, and direct him to pay the net income therefrom to my nephew Adrian Hughes, into his own hands and not into the hands of any other person whether claiming by this authority or otherwise, for and during the term of his natural life and after his decease then to pay said net income into the hands of my niece,- Mary J. Moncure for and during the life of the said Mary J. Moncure, paying the same into her own hands and not into the hands of any other person whether claiming by her authority or ⁵⁸⁹ otherwise and upon her decease then to pay and distribute the principal thereof to such of the children and descendants of the said Adrian Hughes as may be then living with power to the said Adrian Hughes to designate by will how the same shall be distributed, including or excluding such as he may by will designate, and in the event there are no such children or descendants, then to the children of said Mary J. Moncure then living, with power to said Mary J. Moncure to designate by will the method of such distribution, including or excluding as she may so desire.” In June, 1929, Thomas Hughes, on account of ill health, resigned as trustee. His brother, Adrian Hughes, who was appointed in his stead, died January 19th, 1930, without having exercised the power of appointment, and the Safe Deposit and Trust Company was appointed to succeed him. Mary J. Moncure died February 16th, 1939, so that the principal of the trust is now ready for distribution, and a bill has been filed by the trustee and some of the interested parties against the others, for an instruction as to whom distribution should be made and in what proportions.

From a decree directing the distribution of the trust estate equally amongst the fourteen descendants of Adrian Hughes, his son, Adrian Hughes, Jr., appeals. Adrian Hughes left three children, two sons and a daughter, of his eleven other descendants, ten are grandchildren, whose parents are all living. The other descendant and party is a great-grandchild, whose grandmother is the surviving daughter of Adrian Hughes. The appellant’s contention is that the will should be so construed that the grandchildren and one great-grandchild should only take in the event of the death of their parents, children of Adrian Hughes.

As his children are all living, they would then take to the exclusion of their descendants. The brief admits that outside of this state the authorities are in a state of hopeless confusion whether competition between living parents and their children should be permitted. Northern Trust Co. v. ⁵⁹⁰ Wheeler, 345 Ill. 182 , 177 N. E. 884 . It has been repeatedly said by this, and other courts, that the intention of the testator is the law of wills, unless it violates some rule of law, and that the intention of the testator is to be gathered from the language of the will (Miller on Construction of Wills, 44), and that “rules of construction are rarely invoked except when the intention is obscurely or inaptly expressed.” Id., 64.

The question here is as to the meaning to be ascribed to the words “children and descendants of the said Adrian Hughes as may be then living.” The appellant contends that “children and descendants,” form two groups or classes, while the appellees contend that they form one group or class, and the latter was the view taken by the chancellor. It is a concessum that no will exactly like this has ever been before this court, but there have been wills in which the words children and descendants have been construed and defined, which can and should be applied here. Levering v. Orrick,