Marshall v. Safe Deposit & Trust Co.

McSherry, C. J., delivered the opinion of the Court. The record now before us contains four appeals. They were taken against a decree passed by the Circuit Court of Baltimore City on the thirty-first day of December, nineteen hundred and four. By that decree the residuary clause of the last will and testament of the late Lavinia Hopkins was interpreted.

The testatrix died on November the twenty-eighth, eighteen hundred and eighty-four. The clause which has given rise to these cases, after first directing that all of the residue of the estate of the testatrix should be converted into money by the executor named in the will, then gave the sum thus realized unto the Safe Deposit and Trust Company of Baltimore City, “in trust to be by said company invested in such securities or in such manner' as the officers of said company shall deem most judicious for the use and benefit of my grand-children, Samuel H. Mercer, George D. Mercer, Mary S. Mercer and Margaret W. Mercer, for the term of twenty years, reckoning from the day of my death, the interest and income thereof to be equally divided between them share and share alike and at the expiration of the said term of twenty years the said sum shall be equally divided between them, but in the event of any of my grand-children dying within the said period of twenty years, then and in that case it is my wish that the share or income of such child so dying shall be paid to his or her children per stirpes and not per capita, but ⁴ in case any grand-child should die without issue, then and in that case the share of such grand-child shall be equally divided between the surviving grand-children, in all cases the children of any grand-child to have such grand-child’s share per stirpes and not per capita, both in regard to the income during the said period of twenty years and at the final division of my estate at the termination of that period.” The Circuit Court held that under this clause the time for the vesting in right and in possession of the residue of the decedent’s estate and all shares thereof was fixed at the end of the twenty years trust period ; and that inasmuch as Margaret W. Mercer, now Schapiro, was the only one of the four named grand-children alive at that time, and as none of those who had died had left any child or descendants surviving, Mrs. Schapiro was entitled' to the whole trust fund. Mrs. Schapiro having previously executed a deed of trust to the Safe Deposit and Trust Company,'the decree directed the fund to be transferred to that company for her benefit. That company accordingly appears as the appellee in all four cases and claims the whole trust fund for her; The contentions of the four appellants will be set forth presently.

The twenty years trust period fixed in the will came to an end on the twenty-eighth of November, nineteen hundred and four and on that day the corpus of the trust estate became distributable. On May the thirteenth, eighteen hundred and eighty-seven, George D. Mercer, one of the four grand-children named in the residuary clause, died. >He left a widow but no child surviving him. He never had had issue. By his will he disposed of all his property to his wife, Jennie W. Mercer, who has since married James R. S. Lake and she, together with her last-named husband, is appellant in one of the four cases.

She claims, we suppose, the one-fourth interest in the whole trust fund to which her first husband would have been entitled if he had survived the twenty year trust period. We say, we suppose she makes the claim just indicated, because there is no other that she could possibly set up, and, as the sequel will show, this one is wholly untenable. The- ⁵ next one of the four named grand-children who died was Samuel H. Mercer and he departed this life on January the twenty-seventh, eighteen hundred and ninety-seven. He left a widow, Marie Henriette Mercer, surviving him, but he too, had never had any children.

He died testate and by his will he gave all of his estate to that widow. She is one of the appellants on the record and she claims in right of her deceased husband and under his will, one-third of George D. Mercer’s original share, which, she contends, accrued to her husband on the death of George. Mr. John W. Marshall is the administrator c. t. a. of Samuel H. Mercer’s estate and in that capacity appears as appellant in another of the four appeals. As the right he represents is identical with that asserted by Mrs. Marie Henriette Mercer both of these appeals will be treated as one case.

On September the sixth, nineteen hundred and four, Mary S. Mercer, another of the four named grand-children, died. She had married A. Sterling Pennington. The issue of that marriage was a son who died in eighteen hundred and ninety-two. In 1887, Mr. Pennington died and his widow subsequently married Charles H. Harding who now survives her.

They had no issue. She left a will by which she gave the residuum of her estate to her husband and named him executor. He appears, individually and in his capacity of executor, as appellant in one of the cases and claims in right of his wife and under her will a one-third of the original share of George D. Mercer, which he contends, accrued to his wife on the death of George; and in addition, a one-half of the original share of Samuel IT. Mercer, which, he also contends, accrued to his wife on the death of Samuel.

We do not propose to review or discuss the large number of cases cited in the several briefs which have been filed, because, in considering questions like those here involved, adjudications interpreting other wills are more apt to be confusing than helpful. And this is so because slight variations in the phraseology of other wills and dissimilarity in the conditions surrounding other testators necessarily influence the ⁶ conclusions reached in other instances. The same word has often different meanings ascribed to it in different cases, in order that the apparent testamentary intention might be given effect in each. There are certain fixed and unbending legal principles which it is necessary to invoke in many instances, even though they may when followed thwart an bbvious intention; and there are others equally well settled, which whilst producing no such result, are so universal and uniform in their application that testators are treated as having drawn their wills in accordance with and in subordination to their effect.

When, therefore, a situation arises where the words written in a will must be interpreted so as to ascertain the testamentary intention and so as to uphold it, when ascertained, the words will be read in the light of these last-named principles, and be given a meaning which they require. Unless the will clearly and unmistakably shows, or unless there is plainly inferable therefrom, an intention to postpone until the end of the twenty year period the vesting in right of all interests whatever in the trust estate, the more modern rule which favors an early vesting, where there are two periods to which the vesting may be referred, will be followed, and the estate will' be held to have vested not, at the remote, but at the earlier period. Cox v. Handy, 78 Md. 108 , and the recent case of Hoover v. Smith, 96 Md. 393 , are apposite illustrations of this rule. No beneficial interest is given to the trustee under the will before us.

The fund is béqueathed to the Safe Deposit and Trust Company in trust for the use and benefit of* the four named grand-children during a period of twenty years and at the end of that time the trustee is directed to equally divide the fund between them; in the meantime, however, it is required to pay over the income to them. They were given the right to have immediate possession of the income, but their right to the possession of the corpus was postponed for twenty years. But postponement of possession does not, of itself, indicate an intention to postpone a vesting. The four named grand-children took vested equitable inter ⁷ ests in the residue, defeasible upon their death within twenty years after the decease of the testatrix.

And these equitable interests were thus defeasible because upon the death of any one of the four within the period named his or her share was, by the terms of the clause, limited over in the alternative manner which will be discussed in a moment. When the residuary clause created the trust for the four grandchildren and restricted the duration of that trust to a definite number of years, it did not stop there. The testatrix appreciated the possibility of at least some of the four dying before the expiration of the trust, and she was confronted with two contingencies in respect to that possibility. One was the contingency of the death of a grand-child within the trust period who left issue surviving; and the other was the contingency of the death of a grand-child within the trust period who left no issue surviving; and for both of those contingencies she proceeded to make provision.

The provision thus made conclusively indicates that the original shares given by the first part of the clause were, and were intended to be, vested but defeasible equitable interests. The first contingency dealt with was that of the death of a grand-child leaving issue surviving. This event did not happen but that does not affect the question. “But in the event,” says the clause, “of any of my grand-children dying within the said period of twenty years, then and in that case it is my wish that the share or income of such child so dying shall be paid to his or her children, &c.” Does this mean children living at the death of the grand-child, or does it mean children then living and who shall, in addition, survive the period of distribution ? It does not say this last-named condition must exist.

To superadd it would incorporate in the will a distinct provision which is not there now. Besides reconstructing the clause by the insertion of the condition indicated, a construction which restricts the word children to those who were living, not merely at the grand-child’s death, .but also at the period of distribution, would introduce a fluctuating class of children liable to be wholly depleted by death before the end of the twenty years, ⁸ and with not a provision made in that event for the devolution of the original share of their parent, and consequently with a resulting intestacy as to that share. Obviously, had one of the grand-children died during the trust period leaving surviving children, those children would have taken a vested interest in “the share or income of” such deceased grandchild, with a light to the immediate possession of the income, but with the right to the possession of the corpus deferred until the expiration of the twenty years. Ridgely v. Ridgely, 100 Md. 230 .

Now, the second contingency with which the testatrix dealt was thus phrased by her: “But in case any grand-child should die without issue, then and'in that case the share of such grand-child shall be equally divided between the surviving grand-children." To what period of time are we to look in order to ascertain who answer the description of surviving grand-children ? There are but two periods to which reference can possibly be had—the one, the death of the grandchild ; the other, the end of the twenty year trust period. These are alternative and not coincident periods. If you say it is the latter period, then before the twenty years had actually elapsed it would have been impossible to ascertain who, or whether anybody, would ultimately answer the description of “surviving grand-children;” though the income was distinctly directed to be paid at once and before the expiration of the twenty years to the “surviving grand-children.” Take, for instance, the situation as it existed when George D. Mercer died in 1887-.

If, before you could determine who were surviving grand-children, you were obliged to wait until November, nineteen hundred and four, how could you pay the income accruing after his death and before the end of the twenty years, to the remaining three grand-children, until eighteen hundred and ninety-seven when Samuel died, and thereafter to the. two grand-daughters ? As both corpus and income are affected, the individuals who, as surviving grandchildren, were entitled to the income, must be the same individuals who were entitled to the corpus.; unless the description ⁹ “surviving grand-children” means one set of persons when you are dealing with the income, and a totally different set when you are dealing with the corpus. There is no warrant for holding that as respects income the three grand-children who survived George D. Mercer were “surviving grandchildren,”