Kelly v. Mercantile-Safe Deposit & Trust Co.

Singley, J., delivered the opinion of the Court. In Sollers v. Mercantile-Safe Deposit & Trust Co., 262 Md. 606 , 278 A. 2d 581 (1971), we had occasion to restate the rule as regards the distribution to be made when there is a gift over in favor of descendants, other than the descendants of the testator, per stirpes. This case raises a related question: does a gift over in favor of a testator’s daughter’s “issue, share and share alike”, without more, (i) call for a distribution among the daughter’s descendants per stirpes, with the consequence that the first generation takes, and succeeding generations take only by representation of members of the first generation who are deceased, or (ii) does the language import a distribution among all living descendants, regardless of generation, per capita? The Circuit Court of Baltimore City concluded that the former, and not the latter, was the correct answer to the question, and so do we. ⁶²⁸ Hamilton Cassard died domiciled in Baltimore in 1931. 1 By the terms of his will, he left the residue of his estate to Safe Deposit and Trust Company of Baltimore, now Mercantile-Safe Deposit and Trust Company (the Mercantile) in trust, to pay the income to his daughter, Elizabeth Hamilton Cassard, for life, and then provided: “Should my said daughter, Elizabeth Hamilton Cassard, die leaving issue, the trust hereby created is to terminate and the estate to vest in such issue, share and share alike.” Elizabeth Hamilton Cassard survived her father, married Henry W. Thayer, and died in February, 1969.

At the time of her death, Mrs. Thayer was survived by a daughter, Elizabeth Thayer Smith; by two grandchildren, William B. Smith and Elizabeth Hamilton Thayer Smith (now Burroughs), both children of Elizabeth Thayer Smith, and by a great-grandson, William B. Smith, Jr., the minor son of William B. Smith. The Mercantile instituted an equity proceeding for a construction of Mr. Cassard’s will, alleging that it was in doubt whether a distribution of the trust assets should be made on the one hand only to Elizabeth Thayer Smith or, on the other, to all of the descendants of Elizabeth Cassard Thayer living at the time of her death: i.e., Elizabeth Thayer Smith, William B. Smith, Elizabeth Hamilton Thayer Smith Burroughs, and William B. Smith, Jr., who would take in equal shares, per capita. It seems to us that the question would be forever settled by Clarke v. Clarke, 222 Md. 153 , 159 A. 2d 362 (1960), where a sharply divided Court held that a testamentary gift to the “issue” of a life tenant, with no intrinsic or extrinsic evidence of contrary intent, resulted in the child of the life tenant’s taking to the exclusion ⁶²⁹ of the child’s son, unless the use of the words “share and share alike” must be regarded as intrinsic evidence of a contrary intent. This case, which has been characterized as “the dawn of a new era of judicial enlightenment” rejected the rule of the English cases exemplified by Davenport v. Hanbury, 3 Ves.

Jr. 257, 30 Eng. Rep. 999 (Ch. 1796) that a gift to descendants was a gift to all descendants of whatever generation, per capita. For a discussion of the historical background of the rule, see Schnebly, “Testamentary Gifts to ‘Issue’ ”, 35 Yale L.J. 571 , 591 (1926) ; Note “Distribution to ‘Issue’ ”, 21 Md.L.Rev. 242 (1961) ; Note “Meaning of ‘Issue’ in Testamentary Gifts”, 37 Mich. L.Rev. 630 (1939) and discussion 4 Page, Wills § 36.15 at 569 (Bowe ed. 1961).

This result reached in Clarke, supra, was a natural consequence of the holding in Mazziotte v. Safe Deposit & Trust Co., 180 Md. 48, 50 , 23 A. 2d 4 (1941) that a gift over in favor of “issue” “has usually been found equivalent to heirs of the body or those who would take in case of intestacy, thus rendering gifts to remoter descendants only substitutional, in place of gifts to remote ancestors.” and that the recipients take by purchase. See also, Horwitz v. Safe Deposit & Trust Co., 172 Md. 437, 451 , 192 A. 281 (1937); Thomas v. Safe Deposit Trust Co. of Baltimore, 73 Md. 451, 458 , 21 A. 367 (1891); Shreve v. Shreve, 43 Md. 382, 396-97 (1875). Clarke adopted what is sometimes called the Massachusetts rule, enunciated in Jackson v. Jackson, 153 Mass. 374 , 26 N. E. 1112 (1891), which was followed in 3 Restatement of Property, Future Interests § 303 (1) at 1655 (1940): “When a conveyance creates a class gift by a limitation in ft ir of a group