Lumpkin v. Lumpkin

Schmucker, J., delivered the opinion of the Court. This record contains two appeals, from decrees of the Circuit Court No. 2, of Baltimore City, taken by Cora Lee Lumpkin, widow of William W. Lumpkin. > The first appeal was by her, in her own right, from a decree dismissing her ⁴⁸⁶ petition to reopen and modify a decree theretofore passed in the case of Hannah S. Lumpkin et al. v. Harriet V. Lumpkin et al. The second appeal was by her, as executrix of her husband’s will, from a decree dismissing a bill of review filed by her as executrix for the same purpose as her petition. The cases on the petition and the bill of review were heard together by the Court below, and, as both of the proceedings were instituted for the ultimate purpose of procuring a correct construction of the will of the late Robert G. Lumpkin, the two appeals will be considered by us together. It appears from the record that Robert G. Lumpkin, of Baltimore City, died on August ioth, 1905, seised of a dwelling house and 164 fee simple ground rents and possessed of personalty of large value.

He left a will,' which will be more fully noticed hereafter, naming his widow Hannah S. Lump-kin and W. Burns Trundle as executors and they duly qualified as such. The widow and five children and three grandchildren survived the testator. The children were Edward T. —John F. — Emma V. — Robert G. L. and William W. At the death of the father Edward T. was married and had two infant children and Emma V. was the wife of James Clark and had one infant child. Rogert G. was also married but had no children, and William W. married the appellant on September 27th, 1905, after his father’s death.

Robert G. Lumpkin by his will, which was made on January 22nd, 1900, gave to his widow his dwelling house and its contents absolutely and also gave her four-tenths of his entire estate for her life with remainder to his children to be equally divided between them. He then gave, without any expressions of qualification or limitation to each one of his*five children one-tenth of his estate less whatever the recipient might owe him at his death. The testator then after giving the remaining one-tenth of his estate in trust for his grandchildren added at the end of the clause creating the trusts the following sentence. “In case of either of my children's death without leaving lawful issue then I will and direet that their portion or inheritance in my estate shall be equally divided between my wife ⁴⁸⁷ and my surviving children." The true meaning of that sentence is the question of construction lying at the root of the entire litigation of which the present appeals are the latest development. The appellant contends that the death therein referred to of a child without issue means such a death in the lifetime of the testator, while the appellees insist that it means such a death whenever it shall occur.

It is conceded by all parties that under Art. 93, sec. 325, of the Code, the devise •over is not void for indefiniteness. On September 22nd, 1905, a bill was filed in the Circuit Court No. 2, of Baltimore City, by the widow and children of Robert G. Lumpkin against the three infant grandchildren for the two-fold purpose of a partition of the ground rents of which he died seised according to the terms of his will, and also a construction of his will in order “to determine what estates the devisees and legatees under said will take in their respective shares thereunder,” and for further relief. Under that bill a commission was issued to make a partition in kind of the rents, and the commissioners made their return in the usual manner making an allotment of 112 of the rents in groups in severalty to the respective children and grandchildren and allotting the remaining 52 rents to the widow for life, but making no allotment or disposition of the remainder therein after her death. The case was then submitted for final decree and referred to a Master and, on the coming in of his report providing that each child should hold the rents allotted to him “in fee defeasible upon the happening of the contingency of his dying without leaving lawful issue him surviving at the time of his death,” certain of the plaintiffs through special counsel filed exceptions to the report upon the ground that the title of the children to the rents respectively allotted to them should have been made defeasible only upon their death respectively without issue during the life of the testator's widow, Hannah S. Lumpkin.

The exceptions to the Master’s report were submitted by consent July 13th, 1906, on briefs to be filed, and on the second day thereafter the final decree was filed overruling the exceptions and confirming the return of the commissioners. ⁴⁸⁸ Upon an examination of the final decree it appears that the clause of the will of Robert G. Lumpkin relative to the death of any of his children without issue, received no full or complete construction nor any construction at all touching its operation upon the interest taken by the children as legatees of the very large personal estate give to them by the will, or upon the interest devised to them in the 52 ground rents allotted to the widow for her life. The only construction of the will made by the decree was the inferential or implied one resulting from the confirmation of the Master’s report and the direction that each child hold the rents, which had been allotted to it in severalty, “in fee defeasible upon the happening of the contingency of his dying without leaving lawful issue him surviving at the. time of his death as expressed in the eighth item of said will. ” At the time of the filing of the original bill for partition and the construction of the will of Robert G. Lumpkin neither his executors, nor the wife of his son, Robert G., who was then married were made parties' to the case. On October 4th, 1905, however a petition was filed by the plaintiffs then in the case calling the Court’s attention to the absence from the record of Robert’s wife and of the appellant who had, since the filing of the bill married the son, William W., and asking leave to amend the bill by interlineation making the two wives parties plaintiff to the case. Leave having been granted the plaintiffs interlined the names of the two wives among the names of the plaintiffs in the bill, but so far at least as the appellant is concerned she never authorized any counsel to appear for or represent her in the case nor was she ever summoned or otherwise brought into the case or under the jurisdiction of the Court, and it is conceded that she never was a party to the case until she filed her petition to open the decree.

On November 18th, 1907, more than eighteen months after the passage of the final decree and seven months after the filing by the appellant of her petition to reopen the decree and her bill of review, the executors asked for and obtained leave of Court to be made parties plaintiff to the case nunc pro tunc ⁴⁸⁹ by amendment by interlineation on the bill which was accordingly made. It also appears from the proceedings that on the 17th of February, 1906, the executors of Mr. Lumpkin’s estate passed in the Orphans’ Court their first administration account by which they distributed to the appellant’s husband for account of his share of the personalty, stocks and bonds of the appraised value of $14,792.89, “subject to the provisions of his father’s will” and that The Pocahontas Consolidated Company, one of the corporations whose stock was so distributed to him, declined to transfer it to him subject to the provisions of the will, and that such stock is still in the hands of the executors who now claim title to it as executors because of the death of her husband without issue. On the 15th of April, 1907, after the enrollment of the decree already referred to, the appellant filed in the case her petition under affidavit for the vacation of the decree and rehearing of the case upon the construction of the will of Robert G. Lumpkin, particularly in so far as relates to the eighth clause thereof, and that she be made a party defendant to the case. On the same day she filed in the same Court, as executrix and sole devisee and legatee of her husband, who had died without leaving issue, a bill of review also under oath against all of the parties to the original case praying that her bill of review might be consolidated with that case and the final decree which had been passed there in on January 15 th, 1906, be reviewed and reversed or modifiéd so as to declare that the children of Robert G. Lumpkin, all of whom have survived him, are entitled to hold their devises and bequests under his will in fee simple and by an unconditional title.

With the bill of review was filed as an exhibit a certified copy of the will of the appellant’s husband making her his executrix and sole devisee and legatee. In her petition and bill of review the appellant avers that the partition of the rents made in the original case was just and fair and declares"her willingness to abide by and confirm it,except as to the description therein of the character of the title by which the ⁴⁹⁰ children were to hold the rents allotted to them respectively. She also alleges that no sales or conveyances of any of the rents have been made and that no rights of third parties have intervened or stand in the way of the relief for which she asks, and further says that since her discovery of the passage of the final decree and its true nature she has used all of the diligence which her limited means permitted to assert her rights. The grounds for relief set up in the petition to vacate the decree and in the bill of review are practically the same and consist of alleged errors apparent upon the proceedings, such as the insufficiency of parties, appearing by the pleadings and proof to be necessary, and the failure of the decree to fully dispose of the whole subject-matter of the suit.

Both the petition and the bill of review allege that the appellant has always been a resident of the State of Virginia and that she did not have notice at any time during the pendency of the suit upon the original bill that her rights were put in jeopardy or being adjudicated therein or that any attempt had been made to make her a party thereto or that the will of her father-in-law was being construed therein; but the only information she had was that his estate was being administered and his property divided in the ordinary course, and that she never until the filing cf her petition to reopen the case had authorized anyone to appear as counsel or solicitor therein for her. She further averred that under the circumstances in which the decree of January 15th, 1906, was passed it was practically but a consent decree obtained by the members of the family residing in Baltimore City and that neither she nor her husband who at that time resided with her in Virginia, although he was nominally represented in the case, supposed that it was anything other than a proceeding to divide the ground rents. She further averred that the construction put upon the will by the decree was erroneous and that, if it were permitted to stand, it would result in an unjust and unlawful destruction of her marital rights in her husband’s portion of the rents as well as of her title as the executrix and sole devisee of his will to the real and personal estate given to him by his father’s will. ⁴⁹¹ The adult appellees answered the petition, and answered and demurred to the bill of review, admitting generally the existence, character and result of the suit on the original bill but denying the plaintiff’s construction thereof and referring to the proceedings themselves for the full particulars thereof, and also admitting that the appellant Cora Lee Lumpkin had not been made a party to that suit prior to the filing of her petition and that she had never authorized any solicitor or counsel to appear for her and that none had so appeared. But they deny that the appellant was ignorant that her rights as the wife of Wm.

W. Lumpkin were being adjudicated in the case or that she did not discover that fact until after the passage of the final decree. On the contrary, they aver and insist that during a visit made by her to the house of her husband’s mother in Baltimore City in December, 1905, the existence and nature of the partition suit were frequently and freely discussed in her presence and that she at times participated in the discussions, and that she thus learned and knew the true nature of the case and the issues involved in it, and also insist that she has by her laches disentitled herself to prosecute her petition or her bill of review. The Court below entertained both the petition and bill of review and heard them together on the petition and the bill and the answers thereto and dismissed them by separate decrees, not in either case because they had been filed improperly or without right, but because the learned Judge was of the opinion that the will had been correctly construed by the final decree of January 15th, 1906, in the original case. The decree of Court dismissing the petition contained also the following provisions. “And it further appearing that by the said original decree in this cause no construction was placed upon the first clause of the will of Robert G. Lumpkin, deceased, and it is further ordered, adjudged and decreed that the clause in said will reading as follows: “In case of either of my children’s death without leaving lawful issue, then I will and direct that their portion or inher ⁴⁹² itance in my estate shall be equally divided between my wife and my surviving children,” does not apply to the first clause of said will, whereby Robert G. Lumpkin, deceased, after giving to his widow a life estate in four-tenths of his estate, real and personal, including in said four-tenths certain enumerated ground rents, provided as follows: “At my wife’s death these ground rents are to be divided equally between my children or their children, share and share alike to my children.” We think the learned Judge below was correct in entertaining the appellants petition and bill of review, but we are unable to agree with him either in the conclusion that the limitation over in the eighth clause of the will upon the death without issue of any of the testator’s children did not apply to the remainder in the four-tenths of the ground rents given to his wife for life.

Nor are we able to agree with him that the limitation so operated upon the rents given directly to the children as to reduce their estate therein to a fee defeasible by their death whenever it might occur without .issue. In our judgment the limitation over was intended to.apply with equal force to the entire share or interest of eacfqchild in the father’s estate and to operate as an alternative gift to the mother and other children of the share of any child who might die without issue in the father’s lifetime. As all the children survived the father the limitation over was never called into operation and each child took at the father’s death an estate in fee in his share of the realty, and an absolute estate in his share of the personalty, subject however as to the enjoyment of his share of so much of the estate, as was given to the mother for life, to her life estate therein. There are several errors, apparent upon the face of the proceedings in the original case, affording sufficient ground for reopening it and modifying the decree therein so far as it undertook to construe the will of Mr. Lumpkin.

These proceedings were defective both for want of proper parties and because the decree did not finally dispose of the whole subject-matter of the case. ⁴⁹³ Conceding that the appellant as the wife of one of the sons of the testator was not a necessary party to the case for the purposes of the partition of the rents which did not impair or destroy her dower but merely transferred it from her husband’s undivided share of the rents to those of them which were allotted to him in severalty, she was a necessary party for the purpose of the construction of the will. The partition did not put her dower in the rents in jeopardy but the construction of the will not only put her marital rights in her husband’s real and personal estate in peril, but the interpretation of the will adopted by the Court, if it were to stand, would in effect deny the existence of those rights. Before that can be done she must have notice and an opportunity to be heard. The plaintiffs elected to make'her a party and obtained the Court’s authority to do so but the steps they took for that purpose were entirely ineffectual to bring her under the Court’s jurisdiction.

They went so far as to interline her name upon the bill among the plaintiffs but she was a non-resident of the State and they neither procured her to appear by counsel nor summoned her nor took any other steps to bring her under the jurisdiction of the Court. Nor can we give our assent to their contention that she, a non-resident feme covert, was bound by the proceedings because she heard them