Levering v. Orrick

Pearce, J., delivered the opinion of the Court. In this case, the construction of the will of William H. DeC. Wright, deceased, which was before this Court in Levering v. Thomas, 73 Md. 451 , is again brought up for review. In the former case, the questions decided were, first, whether the will was revoked by the codicils thereto, and, if not, what was the true construction of the will and codicils standing together, so far-as they related to the disposition of the share of Mrs. Victoria L. Levering, a daughter of the testator who died in September, 1889, leaving both children and grandchildren surviving her.

The clause of the will which gave rise to that controversy, and which occasions the present controversy, is in the following words : “I will and bequeathe all the rest and residue of my estate, wherever situated, and whatever it may consist of, real, per ¹⁴¹ sonal or mixed, to my executors hereinafter named. and the survivor of them upon the following trusts, that is to say, to apply the income thereof, to the sole and separate use of my daughters during their natural lives, share and share alike, and at the death of my said daughters or any of them, her share to pass to h'er issue, children or descendants forever, but in case any of my said daughters shall die without issue living at her death, then her share shall pass to her surviving sisters and their descendants, it being my express will that none of my daughters shall be entitled to more than a life estate to their sole and separate use, but the whole of the shares thus bequeathed shall ultimately vest in the descendants of my daughters or any of them who shall leave descendants, in which case the distribution shall be made among such descendants per capita and not per stirpes, and the descendants of my daughters aforesaid are to be considered as purchasers, and as such entitled to the principal or property itself from the time their rights respectively vest.” It was determined in the former case that the codicils did not revoke the will; that each of the testator’s three daughters took an equitable life estate in one-third of the testator’s estate; and that upon the death of Mrs. Levering leaving surviving her both children and grandchildren, her share should be equally distributed among her children (all of whom survived her) to the exclusion of her grandchildren. Mrs. Thom had died before the testator, her only descendants being two sons, who had received her share of the estate without question. Mrs. Thomas, the third daughter, died in 1902, leaving no children or descendants living at her death, and the question here is as to the distribution of her share. It appears from the testimony that at the time of Mrs. Thomas’ death the descendants of Mrs. Thom were as follows: A son, Wm.

H. DeC. Thom, still living, and his two children, Annie Gordon Thom and Mary Gordon Thom, both infants; also Isabel R. Thom and Ella L. Thom, both infants, children of a deceased son, Pembroke Lea Thom; and that the descendants of Mrs. Levering, at the time of Mrs. Thomas’ death, were as follows: Three daughters, namely Miss Elise W. Levering, Mrs. Martha B. Orrick, and Mrs. ¹⁴² Pauline M. Levering; and the following grandchildren, Louisa Wright Orrick, Johnson Orrick, Harry A. Orrick, Jr., and Wm. H. DeCoursey Orrick, children of Martha B. Orrick, all infants; also Annie Lavely Levering, Paul Johnson Levering, Pauline Dorothy Levering, and Elise Wright Levering, children of Pauline M. Levering, all infants; there being thus in all sixteen descendants of Mrs. Thom and Mrs. Levering. Upon a petition filed in the original cause, (decided in 73 Md. supra,) by Mrs. Orrick for the construction of the will as to the disposition of Mrs. Thomas’ share, the Circuit Court of Baltimore City passed a decree on the 23rd day of December, 1902, declaring that by the true construction of said will, the share of Mrs. Thomas should now be divided per capita among all the sixteen descendants above named of Mrs. Levering and Mrs. Thom, that is to say one-sixteenth part thereof to each of said sixteen descendants free, clear and discharged of the trust under which said share had been held during the life of Mrs. Thomas, and appointed. commissioners to make partition accordingly.

From this decree four appeals have been,taken all of which are embraced in this record. At the time of Mrs. Thom’s death her only living descendants were her two sons above named, and at the time of Mrs. Victoria Levering’s death her only living descendants were her three daughters above named; Louisa Orrick and Johnson Orrick, the two oldest children of Mrs. Orrick; and Victoria Levering, Louis Levering, Annie Levering, Paul Johnson Levering, and Pauline Dorothy, Levering, five of the children of Pauline M. Levering. Ella Lea Levering, the first child of Pauline M. Levering, died before Mrs. Victoria Levering, and Victoria Levering and Louis Levering died after-wards, and before the death of Mrs. Thomas.' The first of these appeals is by Elise W. Levering, whose contention is that the two sons of Mrs. Thom living at her death, and the three daughters and seven grandchildren of Mrs. Victoria Levering living at her death, constitute, to the exclusion of other descendants of Mrs. Thom and Mrs. Lev ¹⁴³ ering, the class contemplated by the testator as entitled to take per capita the share of Mrs. Thomas, and that therefore, that share is now vested equally in the twelve persons above mentioned. This contention rests upon the theory that the descendants of Mrs. Thom were to be ascertained at her death and those of Mrs. Levering at her death, and that when so ascertained their respective interests vested accordingly.

The second appeal is that of Wm. H. DeC. W. Thom, whose contention is that the share of Mrs. Thomas “is now divisible per stirpes and not per capita, among all the descendants of Mrs. Levering and Mrs. Thom, living at the death of Mrs. Thomas, and that he is therefore entitled to have distributed to him one-fourth part of said share;” and in order to assert the claim to a distribution pet stirpes, the position taken is that the phrase per capita, was only intended to apply to the case of one daughter only dying and leaving descendants, and the other tw° daughters dying without descendants, in which case the shares of these two were intended to be divided per capita among the descendants of the one leaving such descendants. The third appeal was taken by the guardian of Anne G. Thom and Mary G. Thom, infant children of Wm.

H. DeC. W. Thom, whose contention is that Mrs. Thomas’ share is now divisible per capita, one-half among all the descendants of Mrs. Victoria Levering living at the death of Mrs. Thomas, and one-half among all the descendants of Mrs. Thom living at the death of Mrs. Thomas, and that therefore each of these infants is entitled to a one-tenth part of said share. This contention rests upon the theory that the descendants of Mrs. Thom and Mrs. Levering who were to take Mrs. Thomas’ share, were to be such as answered that description at Mrs. Thomas’ death,"'but that the descendants of each were to constitute separate classes for the per capita distribution directed. The fourth appeal is by the guardian of Isabel R. Thom and Ella L. Thom, infant children of Pembroke Lea Thom, deceased, whose coutention is that the share of Mrs. Thomas “was distributable at her death, one-half to the descendants ¹⁴⁴ of Victoria L. Levering and one-half to the descendants of Ella L. Thom; and that these infants are therefore entitled to-one-tenth of the fund.” Mrs. Thom having died in the lifetime of the testator, the argument in behalf of these