In re Banks' Will

Pearce, J., delivered the opinion of the Court. The questions to be considered in the record now before us, arise upon the following facts : Daniel B. Banks, by his will, probated February 9th, 1875, among other things devised and bequeathed to his ⁴²⁸ son Andrew Banks, all the residue of his real and personal estate, in trust, as to one-half thereof, for his daughter, Margaret W. Dorsey, and as to the other half thereof, for his daughter, Anna W. Banks, during their respective lives, with remainder to their respective issue, living at their death per stirpes, and then made the following provisions : “ In case either of my said daughters shall die without leaving issue living at the time of her death, it is my will that the one-half part of the corpus of the said rest and residue of my estate, which, under the provisions of the two clauses next preceding this would have passed to her issue, had she left any, shall be divided equally amongst my said son, Andrew Banks, and his heirs ; my surviving daughter for her natural life, and her issue living at the time of her death, per stirpes, for her sole and separate use free from liability for the debts, contracts or engagements of her husband, and not subject to his control; my grandson, Harry Slingluff and his issue ; and my granddaughters, Alice M. Smith and Margaret Smith, and their issue, the said two granddaughters taking together but one share thereof; and in case both of my said daughters shall die without leaving issue living at the time of their death respectively, it is my will that the said rest and residue of my estate, which as hereinbefore provided, would have passed to their issue respectively, had they left any, shall be divided equally amongst my son, Andrew Banks, and his heirs ; my grandson, Harry Slingluff, and his issue ; and my granddaughters, Margaret Smith and Alice Maud Smith, and their issue, the said two granddaughters taking together but one share. “ In case any of the children of my daughters shall die before attaining the age of twenty-one years and without issue, it is my will that the share of my estate devised and bequeathed to them respectively, shall pass to and devolve upon such persons as by the then existing laws of Maryland would take the same as my heirs at law and distributees.” Anna W. Banks subsequently became Anna W. God- ⁴²⁹ win, and died in 1890, leaving surviving her six children, one of whom, W. Frank Godwin, died in ■ 1896, before reaching twenty-one years of age, and without issue; Anna and Sara Godwin, two of the remaining five children then filed a bill in the Circuit Court of Baltimore City, against the other three of said children, who were infants, and against sundry other .persons who were, and still are, the heirs-at-law of Daniel B. Banks at the time of W. Frank Godwin’s death, asking for a partition into six equal parts of the whole share which had been allotted to their mother, Anna W. Banks, for life, under the will of Daniel B. Banks, with limitations over as set forth ; and that five of said six parts be allotted to the five surviving children, and the remaining one-sixth part be set aside as the share of W. Frank Godwin, deceased, to be dealt with as thereafter determined by the Court. The bill also prayed that the will of Daniel B. Banks, so far as related to the said executory devise over, might be construed by the Court, and that if the said executory devise over should be held valid, that said one-sixth part should be sold, and the proceeds divided amongst the parties entitled according to their respective interests. Andrew Banks had applied in 1889 in the Circuit Court for Baltimore County, for the benefit of the insolvent law, and Richard S. Culbreth, having been appointed his permanent trustee in insolvency, was also made a party defendant to these proceedings, and all the defendants have answered.

Richard S. Culbreth claims that the devise over was valid and that the interest of Andrew Banks in said one-sixth part passed to him as permanent trustee, by operation of section 2 of Art. 47 of the Code of Public General Laws of Maryland. Andrew Banks also claims that the devise over was valid, but claims that his interest in said one-sixth part does not pass to his trustee in insolvency, but vests in the said Andrew Banks absolutely, and in his own right, free from all debts owdng by him prior to his petition in insolvency, and free from the control of the insolvent trustee appointed by ⁴³⁰ said Court, and he relied upon his discharge in insolvency, a copy of which was filed with his answer. The other adult defendants admitted the allegations of the bill, and the infant defendants, by their guardian ad litem, answered, contending that the executory devise over is void, and that upon the death of W. Frank Godwin, intestate and without issue, his share devolved upon the remaining children of Anna W. Godwin. On proof taken the Court decreed the partition prayed, and construing the will of Daniel B. Banks, also decreed that the children of Anna W. Banks—under the said will—took contingent remainders in fee, which became vested upon the death of their mother, but which were subject to be divested by death under age, and without issue, and that the remainder of W. Frank Godwin was so divested by his death under age and without issue, and that the share and interest of Andrew Banks, as one of the heirs at law and distributees of his father, in the share of said W. Frank Godwin, passed to and vested in Andrew Banks in his own right, and not in his trustee in insolvency.

From this decree three appeals were taken, one by Anna and Sara Godwin, the plaintiffs below, one by Richard S. Culbreth, the insolvent trustee, and one in behalf of the infant defendants by their guardian ad litem. These three appeals have been brought here in one record, and we shall consider all the questions arising therein in their order of presentation, but before doing so it may be stated that after the death of W. Frank Godwin, Richard S. Culbreth, as permanent trustee of Andrew Banks filed a petition in the insolvent proceedings in the Circuit Court for Baltimore County, setting up his claim as such trustee to the interest of Andrew Banks, in the share of said W. Frank Godwin, and praying that Andrew Banks be required to file a supplemental schedule of assets which should include said interest. Margaret W. Dorsey, at the same time filed a petition in said insolvent proceedings, alleging that she had recovered a judgment in the Circuit Court for Howard. ⁴³¹ County, in 1889, against Andrew Banks, for over seventeen thousand dollars, prior to his application in insolvency, which judgment was still unsatisfied, and a copy of which had been duly entered in Baltimore County, and that the interest of said Andrew Banks had passed to his trustee in insolvency subject to the lien of her said judgment, and she prayed that said lien be recognized and established and its validity and priority be allowed. These two petitions were by order of Court consolidated, and Andrew Banks demurred to each of them.

A pro forma order was by agreement, passed dismissing these petitions, and from that order two appeals in one record have been sent up. As a matter of convenience the questions involved in these appeals were argued together with those arising upon the record now before us, but they will be disposed of hereafter in their proper place. These cases have been ai'gued by the numerous counsel engaged therein with great zeal and with marked ability, and we have given to the consideration of these arguments careful and patient investigation and consideration. 1st. We shall first consider the fourth point relied on by the appellants in this record who were plaintiffs below, as that contention if sustained, would dispose of all the questions involved in both records.

Their contention is that the third word of the clause which attempts to create executory devise over, the word “any,” should be read “all,” thus making the clause read as follows: “ In case all of the children of any of my daughters shall die before attaining the age of twenty-one years, and without issue, it is my will that the share of my estate devised and bequeathed to them respectively, shall pass to and devolve upon such persons as by the then existing laws of Maryland would take the same as my heirs at law or distributees,” and they maintain that by this means “full effect andan harmonious interpretation can be given to all the clauses of the will in accordance with the manifest and general intention of the testator;” and they assert this manifest and general intention to be to provide: ⁴³² ist, for Anna during her life; 2nd, for such of her offspring and their descendants, as should survive her, and 3rd, for his heirs at law in the event of the death of all of Anna’s children under age and without issue. We should not hesitate to make this change of language if we could agree with appellants as to the general intent of the testator, and the result of the proposed change in giving an harmonious interpretation of all the clauses of this will, just as we did not hesitate in the recent case of Slingluff v. Johns, ante, p. 273, to read the words, “their descendants,” as “ my descendants,” the change being, as we held, necessary to effectuate the general intent, and being indicated by a clear explanatory context. But upon a thorough examination of this will, we are unable to agree with the contention of the appellants, who have, as we think, concentrated their analysis upon the devises to the two daughters and their issue, and have excluded the light we think is thrown upon the question by other portions of the will. If there were but the son and the two daughters and their issue to be provided for, and the estate was devised to them alone in the terms used in this will the argument of the appellants would be much stronger, because there would be no context from which to glean anything to countervail the natural inference that the children of Anna, on her death, should take an indefeasible estate.

But here there are others provided for, and there is a context which we think countervails the inference sought to be drawn. The testestor had three children—one son and two daughters, and three grandchildren, one grandson, the sole representative of his deceased mother, and two granddaughters representing their deceased mother. There were in all, five stocks of the testator’s blood all made the objects of his bounty, but not all in equal measure, and in dealing with these stocks the testator made a marked distinction between their different degrees. To each of his three grandchildren he gave a pecuniary legacy of $10,000—-about one thirtieth of his estate—but he gave the whole residue of his estate ⁴³³ to his three children, giving^ to each about nine-thirtieth’s of the whole.

These bequests to his grandchildren were but mere recognitions that they were representatives of deceased daughters, and these disposed of, he proceeded to-care for his children with equality of bounty, but not of control and enjoyment. In giving a fee to his son, and in restricting his daughters to life-estates in trust, with remainder to their issue, and in default of such issue, with devises over, he consciously or unconsciously bore witness to the tenacity with which men often cling to the ancient preference of the law for male issue. It is transparent that his son was the favored heir, and that he designed to increase as largely as possible his interest in the whole estate in event of the failure of any one of the other stocks provided for, and it may well be doubted, if he had had no son, whether these devises over, as to any of the grandchildren, would have been made. In the first clause of his will making these bequests to the three grandchildren, he directed that his executors should pay them the principal sums as they respectively reached twenty-one years—paying the interest in the meantime to their guardians—but their estates were none the less vested, and if any such grandchild had died under twenty-one, leaving issue, such issue would have taken the estate from the parent and not from the testator.

He then added: “ In case of the death of any of said grandchildren without issue, and before attaining the age of twenty-one years, it is my will and desire that the bequests to the one so dying, shall pass to such persons as by the then existing laws of Maryland would take the same as the distributees of my personal estate.” This provision is deliberately and intelligently made in precisely the same language as is used in the devise over, in case of the death of any of Anna’s children under twenty-one and without issue, except that in the former, as only money is bequeathed, the bequest over is to the testator’s distributees only, while in the latter clause, as both real and personal estate is dealt with, the devise and bequests over is to the testator’s ⁴³⁴ heirs-at-law or distributees. If it be said that as Harry L. Slingluff was the sole representative of his deceased mother, his share, on the contingency mentioned, must pass out of the mother’s line, and on his death intestate would pass just as is here provided; the same cannot be said as to Margaret and Alice Smith, who were both representatives of their deceased mother, and who would be heir to each other. Yet the testator provided that on the death of either of these without issue and under twénty-one, the share of the one so dying instead of continuing in the mother’s line and thus going .to the sister, should pass over to the testator’s distributees. This will is thus deliberately impressed at its very outset, with the policy which it is argued was not intended, and the ■operation of which is sought to be avoided by construing “any” as “all” in the later clause.

The idea which is ■constantly recurring in this will (except as to the son’s share which is unfettered) is to send back the respective shares for redistribution among the several stocks upon the happening of death without issue and under twenty-one. .Seven times is this purpose repeated ;■ five times in the will, and twice in the codicil; 1st, in reference to the bequest to Harry L. Slingluff, whose modest share, if it were passed ■over to Margaret and Alice Smith, would not give them an undue share of the testator’s estate. 2nd.' In the bequests to Margaret and Alice Smith, who were not permitted to be heir to each other, but whose respective shares on the contingency mentioned, were to pass over under the same iron rule to all the stocks. 3rd and 4th. In the respective devises to Margaret W. Dorsey and Anna W. Banks. 5th. In the devise over of the share of any child of Margaret W. Dorsey and Anna W. Banks, after their mother’s death, on the same contingency. 6th. In the devise over in the codicil of the Delaware farm; and 7th, in the devise over in the codicil of the Franklin street house.

And it is a significant fact in this connection that this limitation of remainders to the children of Margaret and Anna, as defeasible fees, with devises over to the whole family, ⁴³⁵ was not made applicable to the Delaware farm and the Franklin street house, which were the homes of the children of these daughters respectively, since such a devise over would have been inconsistent with the preservation of the home for the other minor children, and its omission in these instances affords a strong presumption of its deliberate application in the instances mentioned. It must also be borne in mind that the testator, in the two clauses we have been comparing, was dealing exclusively with grandchildren, and the presumption is a strong one that the same language, in the two clauses, should receive the same construction as to each member of the class with which he was dealing, viz., grandchildren, so that whether we confine our inquiry to the two clauses, which relate to the class of grandchildren, or extend the inquiry to the whole will, in search of a general intention to support the appellant’s contention, we are equally unable to discover sufficient warrant for the adoption of their view, and we must agree with the Court below, that W. Frank Godwin took a contingent remainder in fee, which became vested upon his mother’s death, subject to be divested by the operation of the executory devise over if held valid. 2nd. The appellants further contend that the executory devise over as to W. Frank Godwin’s share is invalid, because of the well-settled proposition in the construction of wills, that wherever a testator by one clause gives an absolute estate to a devisee, any attempt by a later clause to cut down such absolute estate, will be void, as inconsistent with the absolute estate previously created, and they rely, to sustain this proposition, upon three Maryland cases. Hammett v. Hammett, 43 Md. 307 ; Benesch v. Clark, 49 Md. 504 ; Coombs v. Coombs, 67 Md. 17 .

The abstract proposition thus stated is a sound one, but we have nevertheless no doubt that it is not applicable to the present case, nor do we doubt that the executory devise over in this case is valid and operative. If it is intended, however, to claim as a result of the above proposition, that ⁴³⁶ because the power of disposition is not expressly prohibited in a devise, that an executory devise over is void, the proposition cannot be maintained. The case of Hammett v. Hammett, supra, seems to have been cited by the appellants with this view, but it will be seen upon examination that no such doctrine was held. The only question decided was, which one of two contingencies, possible to be adopted, should be adopted, as that upon which the fee-simple should vest, and it