Lewis v. Payne

Thomas, J., delivered the opinion of the Court. Joseph Zane, of Boston, Massachusetts, died leaving a last will and testament and codicil, which were duly admitted to probate in the Probate Court of Suffolk County, Massachusetts, and in the Orphans’ Court of Baltimore City. The will, which was executed the 31st of March, 1896, disposes of a large estate to his wife, brother and sister, nieces and nephews, grandnieces and grandnephews, and certain nieces of his wife. Among the numerous devises and bequests is "the following provision for his nephew, Joseph Zane, of Baltimore City, and said nephew’s daughter and her children: ¹³⁰ “I give, devise and bequeath te John Grace Suman, of Baltimore, Md., my real estate corner of Baltimore and ■Carey streets, in said Baltimore, containing about fifteen hundred square feet of land, and the buildings thereon, and the sum of twenty thousand dollars, in trust nevertheless for the uses and purposes following, to wit: The annual income of said real estate and of said twenty thousand dollars shall be paid by said trustee quarterly to my nephew, Joseph Zane, of said Baltimore, for the full term of his natural life, and after his decease, the remainder of said real estate and said twenty thousand dollars shall go to Sarah Clarinda Zane, daughter of said Joseph Zane (my grandniece) during the term of her natural life, and to her children in fee simple, if she leaves issue; but if she dies without issue, at her decease said real estate and said twenty thousand shall- go to my heirs at law, discharged of all trusts.” .

The residuary clause of the will is as follows: “All the nest and residue of my estate, real, personal and mixed, of which I shall die seized, and possessed or to which I shall be entitled at my decease, I give, devise and bequeath to my .heirs at law and their heirs by right of representation, in :fee simple,” etc. In March, 1899, the testator executed a codicil, in which he confirms his said will, “so far as this codicil is consistent ■therewith,” and after a nnumber of devises and bequests therein, disposes of the entire remainder of his estate as follows : “All the rest and residue of my estate, real, personal and mixed, wheresoever it may be found and of whatsoever it may consist, I desire it to be divided into three equal parts, and disposed of as follows: . “To my nephew, Joseph Zane, one part subject to the same trusteeship and conditions as stated in my will of March 31, 1896. “To my niece, Ellen Amelia Zane Clairage, one part. To my niece, Georgianna Kelley, one paid.” ¹³¹ John Grace Suman declined' to accept the trust created by the above provisions of the will and codicil, and William J. O’Brien, Jr., of Baltimore City, was by the Probate Court of Suffolk County, Massachusetts, appointed trustee in his place, and the entire trust estate created by said provisions of the will and codicil, consisting, as now invested, of Baltimore City ground rents and mortgages on property in Maryland, and amounting to about sixty-five thousand dollars, was in possession of said substituted trustee at the time of the filing of the bill in this ease, and until he was, by an order of the Court below in this case, appointed receiver to take and hold the same until the further order of said Court. Sarah Clarinda Zane, the daughter of Joseph Zane of Baltimore City, referred to in the above paragraph of the testator’s will, who survived the testator, married Pinckney T. Payne, had one child, Pinckney T. Payne, Jr., and died on the 15th day of July, 1905, leaving her said child, an infant, •and her husband surviving. Pinkney T. Payne, Jr., the infant, also died in the lifetime of Joseph Zane, of Baltimore, leaving surviving him his said father, Pinkney T. Payne.

Joseph Zane, of Baltimore, is now dead, and after his death the trustee of one of the heirs at law of the testator filed the bill in this case against the testator’s other heirs at law, William J. O’Brien, as trustee-and as executor of a deceased heir at law, and Pinkney T. Payne, alleging, among others, the facts we have stated; claiming the property devised and bequeathed to Joseph Zane by the will and codicil, and asking for a construction of said will and codicil; the appointment of a receiver to take charge of the property, and for a partition of the same among those entitled thereto. Piukuev T. Payne demurred to the bill, and the three appeals in the record in this case are by different defendants from the decree of the Court below sustaining the demurrer and dismissing the hill. The contention of the appellants, in respect to the property mentioned in the above paragraph of the will, is that Pinckney T. Payne, Jr., the infant child of Sarah Clarinda ¹³² Payne, having died before the expiration of the equitable life estate of Joseph Zane, of Baltimore, the estate he would have taken had he survived his grandfather, passed by the terms of the will to the heirs at law of the testator; and in respect to property devised and bequeathed to Joseph Zane, of Baltimore, by the codicil, that the testator did not intend that, after the death of Joseph Zane, it should go to said nephew’s daughter and her children, according to the provisions of the will relative to the property therein given to said nephew. It is insisted that Pinckney T. Payne, Jr., did not, at the time of his death, have a vested' interest in the property, but in this we think the appellants are clearly wrong.

The will gave alternative contingent remainders; first to the children of Sarah Olarinda Zane, if she left any, and if she died without leaving issue, then to the testator’s heirs at law. During the life of his mother the interest of Pinckney T. Payne, Jr., was contingent, depending for its vesting upon his surviving her, and the remainder in favor of the testator’s heirs at law was contingent upon Sarah Clarinda Payne’s dying without issue. Upon the death of Mrs. Payne leaving a child, the only contingency upon which the remainder in favor of her children depended by the terms of the will had happened, and her child took a vested remainder, thereby destroying all possibility of a future interest in the heirs at law of the testator, whose remainder was limited to take effect only upon the death of Mrs. Payne without issue. It is said in 24 Am. & Eng.

Ency. of Law, (2nd ed.) 417, that, “The rule that a remainder cannot be limited after a fee simple does not forbid the limitation of two or more remainders in fee simple as substitutes or alternatives the one for the other, that is, on such contingencies that only one of the remainders can possibly vest. Such limitations are variously called contingencies with a double aspect, or gifts on a double contingency, or gifts or devises on two alternative contingencies. Each of such fees is a remainder in regard to the particular estate, but none is a remainder in regard to any other of them.” The same rule is stated in 2 Washburn on Real Property, (6th ¹³³ eel.), sec. 1515, as follows: “Notwithstanding a remainder limited after a remainder in fee would be void, yet two remainders may be so limited, though each a fee, as to be good, provided this is so done that only one is^to take effect, the one being a substitute for, and not subsequent to, the other. The consequence is, that, if the first takes effect and becomes vested, the other at once becomes void.

Such limitation is said to be of a fee with a double aspect.” In the case of Demill v. Reid, 71 Md. 175 , the testator devised certain property to his son, Henry J. Willett, in trust for his grandson, John Willett Belt, for life, “and from and immediately after the decease” of said grandson to the children of said Belt to be “divided between them as tenants in common.” His will further provided: “But in case the said John Willett Belt should depart this life, without leaving a child or descendant thereof living at the time of his death, or in case he should have a child, children or descendants of the same living at the time of his death, and such child, children, descendant and descendants should all subsequently depart this life under lawful age, and without issue living at the time of his, her or their decease, then in trust that the said principal estate and property shall go to and become the property of the children of my said son Henry J. Willett,” etc. Judge Miixeb, in disposing of that case said: “As to the character of the estates thus created, we have no difficulty. It is a clearly established general rule in the construction of wills that a limitation which may operate as a remainder shall not be construed as an executory devise. Here then is first a life estate given to the grandson, Belt, and upon his death alternative contingent remainders in fee are limited, first, to the child or children of Belt, if he leaves any which shall attain lawful age, or die before that time leaving issue, and failing this then to the children of testator’s son Henry. If Belt had left a child who attained the age of twenty-one, or died before that time leaving issue, the fee would have vested in such child or issue, and such vesting would forever have excluded any possible future interest ¹³⁴ in the children of Henry J. Belt.

Their interest took effect only upon the failure of the preceding contingency. There are, therefore, here two contingent fees not limited to take effect the one.upon or after the other, hut'the one to take effect to the entire exclusion of the other, and the falling out of the contingencies is to decide which of the two is to take effect.” Demill v. Reid is so conclusive as to the character of the estates with which we are dealing in this casé, and has been so frequently cited and relied on in this State, that it is not necessary to dp more than refer to some of the cases. Larmour v. Rich., 71 Md. 369 ; In re Banks’ Will, 87 Md. 425 ; Nowland v. Welch, 88 Md. 48 . It is claimed, however, that these cases do not apply because of the outstanding life estate of Joseph Zane-of Baltimore, and that the remainder in favor of the child and of Mrs. Payne could not become vested until after the death of the first life tenant.

But that view is not warranted by any reasonable construction of the will. By its terms it was to be determined at the death of Mrs. Payne which of the alter-’ native remainders was to take effect. If she left issue they were to take to the exclusion of the heirs at law of the testator. No other time was appointed, and the remainder to her children was not dependent upon any other contingency.

It could not, of course, vest in possession until after the death of Joseph Zane of Baltimore, but the right of Pinckney T. Payne, Jr., to the possession of the estate after the death of the life tenant, became a certain and vested Hght upon the death of his mother. The fact that his possession of the property had to await the determination of the preceding life estate did not make the remainder a contingent remainder. It is said in 24 Am. & Eng. Ency. of Law, (2nd ed.) 389, that, “The true criterion of a vested