Hutton v. Safe Deposit & Trust Co.

Digges, J., delivered the opinion of the Court. This ease brings before this Court for review a decree of the Circuit Court of Baltimore City construing the will and codicil of Celeste M. W. Hutton. The will was executed on the 21st- day of June, 1919, and the codicil thereto on the 17th day of November, 1922. The testatrix was possessed of a large estate, consisting of realty and personalty, and had at the time of the. execution of the will and at the time of her death three children, a son, Reginald W. Hutlon, and t.wo daughters, Elsie O. Hutton and Lucette M. Prichard.

At the time of the execution of the will and at her death the testatrix owned a parcel of real estate situated on Fremont and Hollins Streets in Baltimore City, known as “Alexanclroffskv,” and also a tract or parcel of real estate located in Baltimore City, formerly Baltimore County, known as “Crimea,” and another small portion of land described in the will as a, lot of ground on Franklin Turnpike Road, with improvements thereon formerly occupied as a toll-gatehouse. By items four and five of the will she devised as follows: “Item IY. I give and devise to my daughters, Elsie C. Hutton and Lucette M. Prichard, for and during the full term of their natural lives, each an undivided one-half equal part of, in and to all my lauds and estate situate in the City of Baltimore, State of Maryland, fronting on Baltimore Street, Fremont Street, and Hollins Street, and known as ‘Alexandroffsky’ (also known as No. 838 Hollins Street), together with all the buildings and improvements upon said property, with full power to my said two daughters or such of them as may survive me, with the written consent ⁵⁴² of the Safe Deposit and Trust Company of Baltimore, a corporation, to sell the whole or any part or parts thereof, and by good and sufficient deed or deeds convey the same to the purchaser or purchasers thereof without any obligation upon the part of the purchaser or purchasers to see to the application of the purchase money; the proceeds of said sale or sales to be received by my trustee hereinafter named and held by said trustee upon the same trusts and for the same persons and purposes and subject to the same rights and powers of my said daughters respectively in and over the same, principal and income, as are hereinafter mentioned and declared respecting my daughters’ shares respectively of the rest and residue of my estate. “With further power to each of my said two daughters to devise and dispose of by last will and testament, duly executed according to the laws of the State of Maryland, each an undivided one-half part of so much or such part of my property known as 'Alexandra if sky’ as may not have been sold and conveyed as hereinbefore authorized. “Should, at the death of the last survivor of my said two daughters, the whole or any part of 'Alexandroffsky’ remain unsold and conveyed by virtue of the power hereinbefore given or remain undisposed of by their respective last wills and testaments as herein-before authorized, then I authorize and direct that Safe Deposit and Trust Company of Baltimore, a corporation, sell at public or private sale the whole or such part of my said property known as ‘AlexandrofEsky’ as may not have been sold and conveyed by my daughters or such of them as may survive me, as above authorized or disposed of by their respective last wills and testaments as hereinbefore authorized and by good and sufficient deed or deeds to convey the same to the purchaser or purchasers thereof without any obligation upon the part of the purchaser or purchasers to see to the application of the purchase money, and to pay over the proceeds of such sale or sales to the then living descendants of such of my said two daughters who may not have disposed of, as above authorized, ⁵⁴³ their respective interests in said property, per stirpes and not per capita. “I have made no disposition herein of the household and kitchen furniture and other contents of every description of what kind soever of the buildings at ‘Alexandroffsky,’ and the tools and implements there located and being, as prior to the execution hereof I gave the same to my said two daughters, to whom I also gave prior to the execution hereof all my jewelry, laces and personal adornments. “Item Y. I give and devise to my son, Reginald "W. Hutton, my lands in Baltimore County, State of Maryland, known as ‘Crimea’ bounded in part by the Windsor Mill Road, the Franklin Turnpike Road and the Frederick Road, now Edmondson Avenue, together with the buildings and improvements thereon for and during the full term of his natural life, with full power to my said son any time during his. life, with the written consent of the Safe Deposit and Trust Company of Baltimore, a corporation, to sell the whole or any part or parts thereof, and by good and sufficient deed or deeds to convey the same to the purchaser or purchasers thereof, without any obligation upon the part of the purchaser or purchasers to see to the application of the purchase money, my said son to retain the proceeds of said sale or sales, provided he shall then have reached the age of thirty-five years, otherwise the proceeds of said sale or sales are to be retained by my trustee hereinafter named and held by said trustee upon the same trusts and for the same persons and purposes and subject to the same rights and powers of my said son in and over the same, principal and income, as are mentioned and declared respecting my son’s share of the rest and residue of my estate. “And from and after the death of my said son I give and devise the above mentioned lands known as ‘Crimea’ or such part thereof as may not have been sold and conveyed by my said son during his lifetime, as hereinbefore authorized, to such persons or objects as my said son shall limit and appoint by his last will and testament executed according to the laws of Mary ⁵⁴⁴ land, after lie attains the age of thirty years, full power and authority being hereby given to him to make and execute such last will and testament; and in case my said son does not exercise such power of appointment or in so far as his said will shall fail to operate upon said lands, then I give and devise the same to the child, children and descendants of my said son living at the time of his death per stirpes and not per capita; and should my said son die without descendants surviving him and without having exercised such power of appointment or in so far as his will may .fail to operate thereon, then I give- and devise the same to his sisters and the children of a deceased sister then living per stirpes and not per capita, “I have made no disposition herein of the household and kitchen furniture and other contents of every description of what kind soever of the buildings at ‘Crimea,’ or the live stock, cattle and farming implements there located and being, as prior to the execution hereof I gave the same to my said son. “I give and devise to my said son absolutely my lot of ground on the Franklin Turnpike Road and the improvements thereon formerly occupied as a tollgate house.” By item seven the testatrix created a trust of the residue of her estate, with the following provisions: “Item VII. I give, devise and bequeath all the rest and residue of my property and estate, real, personal and mixed, and wheresoever situate, including herein my cash, stocks, bonds and other securities and choses in action, hereinafter sometimes designated as ‘the trust estate’ to the Safe Deposit and Trust Company of Baltimore, a corporation duly incorporated under the laws of the State of Maryland, hereinafter called ‘my trustee.’ In trust and special confidence, nevertheless, and to, for and upon the following uses, trusts and purposes, that is to say: “To collect the rents, issues, income and profits issuing or arising therefrom, or from any investments or ⁵⁴⁵ reinvestments thereof, and after paying thereout taxes and all other expenses upon and incident thereto, and the cost and expenses attending the administration of said trust estate, including commissions to my trustee as compensation for its services in the premises, at the rate of live per cent (5%) upon the receipt of income and revenue, to pay the remaining or net income and revenue derived from the said trust estate, as follows: One-third thereof to my daughter, Elsie 0.

Hutton, for and during the full term of her natural life, free from the debts and control of any husband she may have; one-third thereof to my daughter, Lunette M. Prichard, for and during the full term of her natural life, free from the debts and control of any husband she may have; and the remaining one-third thereof to my son, Reginald W. Hutton, until the termination of the trusts hereinafter created and declared respecting my son’s share of the corpus. “And upon the death of each of my said daughters, I will and direct said trustee to distribute one-third of the corpus or principal of said trust estate (in this clause and for this purpose designated as a daughter’s share) as follows: upon the death of each of my daughters who may die leaving a child or children or descendant of a deceased child surviving her, distribution is to be made of a daughter’s share, free, clear and discharged of all trusts created by my will, to such persons or objects as she may limit and appoint by last will and testament duly executed according to the laws of the State of Maryland, full power and authority being hereby given to her to make and execute such last will and testament, and so much or such part of said daughter’s share as may not be affected by her last will and testament so authorized, shall be distributed by said trustee to her surviving descendants per stirpes and not per capita; upon the death of each of my daughters who may die without leaving a child or children or descendants of a deceased child surviving her, distribution is to be made of a daughter’s share to my other daughter then living and my son Reginald ⁵⁴⁶ W. Hutton, if then living, and to the descendants then living of such of them as may be deceased, per stirpes and not pen- capita. “And I further will and direct that should my said son attain the age of thirty-five years, my said trustee may from time to time, after my said son reaches said age, pay over and deliver to him the remaining one-third of the corpus or principal of the trust estate as may then be in possession of my said trustee, or such part or parts thereof as my said son may from time to time, after he reaches said age of thirty-five years, in writing designate, and in further trust to pay over and deliver so much and such part of the said one-third of the corpus or. principal of the trust estate as may n.ot have been paid over to my said son after he arrives at the age of thirty-five years, as hereinbefore authorized, to and for the use of such person or persons and such purposes as he, my said' son, may limit and appoint by his last will and testament, duly made and executed according to the laws of the State of Maryland, after he attains the age of thirty years, full power and authority being hereby given my said son to make and execute such last will and testament, should, however, my said son depart this life leaving a child or children or descendants of a deceased child or children surviving him, then I will and direct that the whole or such part of said one-third of the corpus or principal of the trust estate, and in the hands or possession of my trustee at the death of my said son, and which may not be affected by his last will and testament executed as aforesaid, shall, upon the death of my said son, be paid over and delivered by my trustee free, clear and discharged of any and all trusts created by my will to the child or' children and the descendants of a deceased child or children of my said son, who may survive him, per stirpes and not per capita, but should my said son depart this life without leaving a child or children or descendant of a deceased ■child or children surviving him, then I will and direct that the whole or such part of said one-third of the corpus or principal of the trust estate then remaining in ⁵⁴⁷ the hands or possession of my trustee and which may not he affected by Ms last will and testament executed as aforesaid, shall, upon the death of my said son he paid over by my trustee, free, clear and discharged of any and all trusts created by my will, to bis surviving sister and the descendants of a deceased sister per stirpes and not per capita. “And I do hereby will and direct that my trustee shall as soon as may be convenient after my death appraise and value my estate known as ‘Crimea.’ together with the said lot on the Franklin Turnpike Eoad and improvements formerly occupied as a tollgate house and my estate known as ‘Alexandroffsky’; whereupon my said trustee is hereby authorized, empowered and directed to deduct from and retain out of the share of my estate held in trust for my said son such sum as may be tbe difference between one-third of the combined value so ascertained of ‘Crimea’ and said toll-gate bouse property and ‘Alexandroffsky,’ and the value so ascertained of ‘Crimea’ and said tollgate house property, and to that extent reduce the share of my residuary estate held in trust for my son as above set forth. The amount so deducted from my son’s share of my residuary estate is to be retained by my trustee and beld upon tbe same trusts and for the-same persons and purposes and subject to the same rights and powers of my said daughters respectively in and over the same, principal and income, as are hereinbefore mentioned and declared respecting my daughters’ shares respectively of the rest and residue of my estate.” It will he seen by the fifth paragraph of item seven that the testatrix directed the trustee named in the will, as soon as convenient 'after her death, to appraise and value her estate known as “Crimea,” including the lot with improvements formerly occupied as a toll-gate house, and also ap^ praise her estate known a's “Alexandroffsky.” She then authorized and directed the trustee to deduct from -and retain, out of the share of her estate held in trust for her son, such ⁵⁴⁸ a sum as is the difference between one-third, of the combined appraised values of “Crimea” and the toll-gate house property and “Alexaadroffsky,” and the value of “Crimea” and the toll-gate house property so ascertained, and to that extent reduce the share of her residuary estate held in trust for her son. Or in other words, by this paragraph the testatrix directed that the trustee, as soon as convenient after her death, appraise “Alexandroffsky,” “Crimea” and the tollgate property; add together these appraisements and divide this sum by three; then take the sum shown as the result of this division and subtract it from the appraised value of “Crimea” and the toll-gate property, thus fixing the amount of owelty, and being the sum which was to be deducted from the son’s portion of the residuary estate held by the trustee. The codicil to the will is as follows: “I, Celeste M. W. Hutton, widow, of the City of Baltimore, in the State of Maryland, do make, publish and declare this as and for a Codicil to my last Will and Testament heretofore executed by me on the 21st day of June, 1919. “Having recently sold to The Northwest Beal Estate Company, a Maryland corporation, for the sum of one hundred and eight thousand seven hundred and fifty dollars ($108,750) about eighty (80) acres of my lands in Baltimore City (formerly Baltimore County), State of Maryland, known as ‘Crimea,’ I hereby give and bequeath the sum of one hundred thousand dollars ($100,000) to my 'son Beginald W. Hutton absolutely upon his arrival at the age of thirty-five years, and should my son die before he reaches the age of thirty-five years, then said sum of one hundred thousand dollars ($100,000) is to be retained by my trustee named in my said will and held by said trustee upon the same trusts and for the same persons and purposes and subject to the same rights and powers of my said son in and over the same, principal and income, as are mentioned and declared respecting my son’s share of the rest and residue of my estate. “In all other respects I do hereby ratify, republish and reaffirm my aforesaid last will and testament. ⁵⁴⁹ “In witness whereof I hereunto