Mazziotte v. Safe Deposit & Trust Co.

Bond, C. J., delivered the opinion of the Court. The case has arisen upon a petition filed in equity by a substituted trustee under a will, for construction of a gift of remainders after termination of the trust. The question raised is whether a gift over to the issue of daughters of the testator living upon their death, per capita, is a gift to all living descendants of the daughters in all generations, in equal shares, allowing remoter descendants to share with their living parents, or is a gift to the parents excluding their children. The chancellor below held that the living grandchildren took to the exclusion of their own children, and the guardian of those children has appealed.

William H. Lohmeyer, by the third clause of his will dated June 1,1903, and admitted to probate February 24, 1911, devised two parcels oi real estate in trust ior payment to each of four daughters of a two-ninths part of the income, and to pay a son the remaining one-ninth. And a fourth paragraph provided that upon the death of all the daughters, “then the trust hereby created shall cease and eight-ninths of the trust property shall be paid conveyed and delivered to the issue of my said four daughters, living at the termination of the trust per capita.” The four daughters have all died, and they left surviving them six children altogether, one daughter having left one, another two and a third three. The fourth daughter left no issue of any generation surviving her. ⁵⁰ Three of the six children of these daughters, all of whom are now living, had living at the termination of the trust six children of their own, similarly distributed, one child having one, another two, and a third three. There were living, then, at the termination of the trust, and arrival of the time for distribution, six grandchildren of the testator, and six great grandchildren in all, to three of the grandchildren.

The word “issue” in the disputed clause is clearly one of purchase. Miller, Construction of Wills, Sec. 77. And standing alone, the meaning of it has been a subject of difference of opinion. Miller, supra, secs. 89 and 90; Notes 2 A. L. R. 930; 5 A. L. R. 195; 78 A. L. R. 1385, 1398; 117 A. L. R. 691.

Primarily, it embraces all lineal descendants. Goldsborough v. Martin, 41 Md. 488, 501 . But in Maryland it 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 deceased ancestors. Horwitz v. Safe Deposit Co., 172 Md. 437, 451 , 192 A. 281 ; Miller, supra, sec. 358, p. 1012.

And see McPherson v. Snowden, 19 Md. 197, 229 . It is not a word of fixed meaning, and the sense in which the testator has used it is the test for interpretation, and for this context will control. “Its true interpretation must be found from the connection in which it is used.” Thomas v. Higgins, 47 Md. 439, 451 ; Thomas v. Safe Deposit Co., 73 Md. 451, 458 , 21 A. 367 , 23 A. 3 ; Travers v. Wallace, 93 Md. 507, 513 , 49 A. 415 ; Horwitz v. Safe Deposit Co., supra. Rules of construction must, as has been argued, occupy a subordinate position here as elsewhere. Cox v. Handy, 78 Md. 108, 123 , 27 A. 227 , 501; Vestry of Emmanuel Church v. Safe Deposit Co., 169 Md. 28, 35 , 179 A. 164 .

But the word does not stand alone. The takers are to be the issue per capita, and the qualification seems to dispose of the question of interpretation. A gift to issue per capita means that all beneficiaries who may come within the classification' of issue of the four daughters are to take in their own right from the testator directly, ⁵¹ and not from their parents or in representation of them. McPherson v. Snowden, 19 Md. 197, 229 .

And unless other expressions in the will afford a contradiction of this ordinary meaning it must exclude takers