In Re Estate of Snyder

Marbury, C. J., delivered the opinion of the Court. This case arises through a bill of complaint instituted by a trustee in the Circuit Court of Baltimore City, asking for a construction of the residuary clause of the will of John Henry Snyder of Charles. This will was executed on July 22, 1911, and the testator died October 15, 1919. It is important in the decision of the questions raised to note the situation of the testator at the time he made his will.

He was then a widower, 82 years old. He had two living children, Andrew C. Snyder, then 53 years old, and a daughter, Elizabeth H. Webb, who was 58 years old. Andrew C. Snyder had had one son, born in 1885, who had died in 1889. Elizabeth H. Webb had three children, Bessie S. Walker, Helen M. Lengnick and Edna W. Miles, all then living.

Bessie S. Walker has had two children, both of whom are dead. Helen M. Lengnick has had one child who is dead, and Edna ⁸⁶ W. Miles has had four children, all of whom are living and are parties to this case. At the time of the execution of the will, the testator had a son and a daughter living, and had three grandchildren living, all of whom were granddaughters. It is not quite clear from the record how many great grandchildren were then living, but this is not important.

As his son was 53 years old and had had no children for 26 years, and his daughter was 58 years old, while there was a possibility that he might have more grandchildren, on the other hand, it is quite probable that he considered this to be unlikely. Courts cannot assume from the age of parties the impossibility of their having children, In re Ricards Trust Estate, 97 Md. 608, 609 , 55 A. 384 , 63 L. R. A., 145, Williams v. Armiger, 129 Md. 222, 234 , 98 A. 542 , but they can consider the possibilities in order to determine what the testator may have thought when he was making his will. Reese v. Reese, [Chism v. Reese], 190 Md. 311 , 58 A. 2d 643 , In re Wright’s Estate, 284 Pa. 334 , 131 A. 188 . The residuary clause which is in question is the second.

By it, all the rest and residue of the testator’s estate is devised and bequeathed to his son and trustee, to collect the rents, etc. and “pay the net rents, income and profits thereof semi-annually in equal shares unto my said son Andrew C. Snyder and my daughter, Elizabeth H. Webb, wife of James A. Webb, for and during their joint natural lives and from and immediately after the death of my said daughter Elizabeth H. Webb, if she shall predecease my said son, then in Trust to pay the whole of said net rents, income and profits to my said son Andrew C. Snyder, for and during his natural life; and if my said son Andrew C. Snyder shall predecease my said daughter, then and in that event, in Trust, subject to the trusts as to a part of said net rents, income and profits as hereinafter set forth in this second clause of this my last will and testament, pay the whole of said net rents, income and profits to my said daughter Elizabeth H. Webb, for and during her natural life. In the ⁸⁷ event of my said son Andrew C. Snyder, predeceasing my said daughter Elizabeth H. Webb, then and in that event, I give, devise and bequeath unto said trustee, his successor or successors, annually during the natural life of my said daughter Elizabeth H. Webb, to be paid out of the annual rents, income and profits of the whole of the rest and residue of my estate and property, the annuity or yearly sum of Five Hundred and Twenty Dollars ($520.00), in Trust to apply the same to the support and maintenance of my ganddaughter, Bessie S. Walker, during the life of my said daughter, Elizabeth H. Webb, and I direct that said annuity shall be paid to my said granddaughter in weekly payments of Ten Dollars ($10.-00) ; and from and immediately after the death of the survivor of my said son and daughter, then in Trust, to pay the said net rents, income and profits, equally share and share alike unto my grandchildren, including my said grand-daughter Bessie S. Walker, for and during their respective natural lives, and from immediately after the death of each of my said grandchildren as it shall occur, then in Trust to pay and deliver over absolutely free and discharged of this Trust unto all of my great grandchildren, living at the time of the death of such grandchild so dying, equally, share and share alike, per capita and not per stirpes, the share or portion of my estate and property so held in Trust for the grandchild so dying. If it shall so happen that one of my said grandchildren shall predecease my said son and daughter or the survivor of them without leaving a child or children, him or her surviving, then and in that event, I direct that the net rents, income and profits shall be equally divided among my grandchildren living at the time of the death of the survivor of my son and daughter, but if either of my said grandchildren shall predecease my said son and daughter or the survivor of them leaving a child or children, or descendants of a child or children, him or her surviving, then and in that event, I direct that the share or portion of my estate and property which would have been held in Trust for the grandchild so dying, if she ⁸⁸ had not predeceased my said son and daughter, shall be paid and delivered to the child or children or descendants of a child or children of such deceased grandchild, absolutely free and discharged of this trust.” Andrew C. Snyder died in 1921, and the Safe Deposit and Trust Company of Baltimore was named trustee in his place. The testator’s other child, Elizabeth H. Webb died in 1924.

Andrew C. Snyder left a will, naming several charitable and benevolent associations as his residuary legatees. These residuary legatees, under some circumstances, might have an interest in the John Henry Snyder estate, and they have all, therefore, been made parties to this case. Elizabeth H. Webb left the three daughters above mentioned, and by her will, the residue of her estate was to be divided, equally, among these three daughters, who were all then living. The record indicates some possibility that these daughters might take by intestacy instead of under the residuary clause.

But her will, and any questions with respect thereto, are not before us, and it is agreed by all parties that her three daughters would take in one way or the other. Two of these daughters are living and are parties to the case. The other daughter, Helen M. Lengnick, died in 1948, and her executor is a party. Her death was the occasion for the filing of the bill in this case, which is to determine where the share of the estate, the income of which has heretofore been paid to her shall go.

The Chancellor decided that this interest belongs to the four great grandchildren per capita, under the terms of the will. From this decision appeals were noted by the executor of Mrs. Lengnick, by Bessie S. Walker and by the Rosewood State Training School, one of the residuary legatees under Andrew C. Snyder’s will. They all claim that the provision in the residuary clause, directing payment after the death of each of the grandchildren, to the great grandchildren living at the time of such death, is in violation of the rule against perpetuities. This contention is based upon the fact that it might have been possible for another grandchild to ⁸⁹ have been born after the death of the testator, who would have shared in the class gift.

Such grandchild might have a child who would be the great grandchild of the testator, and the estate of such great grandchild would not necessarily vest within the period required by the rule. They correctly contend that, in determining the question of the applicability of the rule against peruetuities, the court must look forward to what might happen, and not backward to what did happen. Gambrill v. Gambrill, 122 Md. 563, 569 , 89 A. 1094 ; Perkins v. Iglehart, 183 Md. 520 527 , 30 A. 2d 672 ; Ryan v. Ward, 192 Md. 342, 348 , 64 A. 2d 258, 260 . The contention on behalf of the great grandchildren, which was that sustained by the Chancellor is that the gift to the grandchildren was not a class gift but was a gift to individuals known to the testator, and, therefore, there could be no estate commencing after the restricted period.

The intention of the testator, as shown by his will, (which we must ascertain before seeing whether the rule against perpetuities applies, Graham v. Whitridge, 99 Md. 248, 275 , 57 A. 609 , 58 A. 36 , 66 L. R. A. 408), was to take care of his descendants to the third generation. His children were to get life estates, subject, under some circumstances, to a small annuity to a specially named granddaughter. Then his grandchildren were to get life estates, and when each grandchild died, all of his great grandchildren, and not only those who were the children of the grandchild so dying, were