Merc.-Safe Deposit and Trust Company v. Winter's Deposit and Trust Company

Oppenheimer, J., delivered the opinion of the Court. Mercantile-Safe Deposit and Trust Company, as Successor Trustee under the Will of Annie M. Winter, deceased, filed in Circuit Court No. 2 of Baltimore City a Supplementary Bill of Complaint to obtain a judicial construction of Item 7 of the Will of Annie M. Winter. Item 7 of the Winter Will reads as follows: “7. I give, devise and bequeath all the rest, residue and remainder of my estate, real and personal, unto my son, John S. Gittings, his heirs, executors and administrators, upon trust to divide the same into two equal parts, and thereupon to stand seized and possessed of one of said equal parts of my residuary estate, upon trust to pay the interest and dividends thereof as they shall accrue unto my said grand-daughter, Eleanor A. Moale, for her sole and separate use for ¹⁰⁹ the term of her life, and from and after her decease, upon trust to and for the benefit of her children equally between them, share and share alike, and to vest in and to be paid or transferred to them after the death of my said grand-daughter, Eleanor A. Moale, when they attain the age of twenty-one years, if male, or if female, when they shall attain that age or shall marry; and if any or either of them shall die before his or her share shall become payable as aforesaid, the share of him or her so dying shall go and be paid or transferred to and amongst the survivor or survivors of them, share and share alike, payable as aforesaid, and if all of them shall die before his or her share shall become payable as aforesaid, then the said one-half of my said residuary estate shall go and be transferred to the children of my son, John S. Gittings, equally share and share alike; And as to the remaining equal half part of my said residuary estate, upon trust to divide the same into as many equal parts as there shall be living-children of my son, John S. Gittings, at the time of my death, and upon further trust to^ stand seized and possessed of one such equal part of said half part of my said residuary estate in trust for or for the benefit of each of the said children of my son, John S. Git-tings, to pay the interest or dividends of the same respectively to said respective children of my son, John S. Gittings, until they severally attain the age of thirty years, and as and when they shall respectively attain the age of thirty years to pay or transfer to them respectively the principal of their shares aforesaid.” Annie M. AYinter, a resident of Howard County, Maryland, died in 1902, leaving a Last AVill and Testament dated September 30, 1898 and duly admitted to probate by the Orphans’ Court for that county on November 18, 1902.

Annie M. AVinter was survived by five children of John S. Gittings, only one of whom, Gladys Gittings Barret, was living at the time of the death of Eleanor A. Moale (Lehr). John S. Gittings died on January 23, 1926 survived by the same five children. He had also two other children who died at infancy ¹¹⁰ before the testatrix made her will, namely, John S. Gittings, III, who died in 1879, aged one year, arid William Roger Git-tings, who died in 1882, aged ten months. The five children who survived their father are: (1) Henry May Gittings, who died testate on January 22, 1931, his residuary estate having become vested in his only child, Rosalie May Gittings Drexel; (2) Gladys Gittings Barret who is presently living; (3) Dorothy Rosalie Gittings Salvati, who died testate on October 14, 1932, domiciled in Baltimore, but then residing in Rome, Italy, and whose residuary estate became vested in her husband, Cesare Salvati, who cannot now be found and is presumably dead; (4) John Sterett Gittings, the younger, who died testate, domiciled in Wilmington, Delaware, on June 17, 1961, and whose residuary estate is vested in his three surviving children—Barbara "Katharine Gittings, John Sterett Gittings, Jr., and Eleanor A. Gittings Taylor; and (5) Frederick May Gittings, who died testate on July 9, 1952, domiciled in Baltimore County, Maryland, without issue, and whose residuary estate has become vested in three charitable institutions—the Roman Catholic Archbishop of Baltimore, The Maryland Workshop for the Blind, and the Hospital for Consumptives of Maryland (Eudowood).

The next-of-kin of Annie M. Winter were her son, John S. Gittings, and her granddaughter, Eleanor A. Moale (Lehr), both of whose residuary estates were left ir> trust, the trustees of which appeared as parties respondent in this proceeding. All known parties having a possible interest in this estate were joined as parties respondent to the proceedings and received .actual notice thereof (except Cesare Salvati). On April 8, 1964, Eleanor A. Moale Lehr died, never having had any children. The questions involved are whether there was a partial intestacy under the Winter will, so that the remainder of the life ■estate of the testatrix’s granddaughter, Eleanor Moale Lehr (Eleanor), must be distributed to the personal representatives •of the testatrix’s next of kin; and, if there was no intestacy, whether the remainder of Eleanor’s life estate should be distributed (1) to the children of the testatrix’s son, John S. Git-tings (John), living at the death of the testatrix in 1902, (2) to John’s children living at the date of his death in 1926, (3) ¹¹¹ to John’s children living at the date of Eleanor’s death in 1964, (4) or to John’s children and descendants of deceased children.

Judge Prendergast, in a thorough and carefully reasoned opinion, held that there was no intestacy and that, under the will, the remainder of the trust estate created for Eleanor passed at her death to the children of John living at the time of the death of the testatrix. The principles applicable to the construction of wills in this Scate are firmly established. They are summarized in McElroy v. Mercantile-Safe Deposit & Trust Co., 229 Md. 276, 283-84 , 182 A. 2d 775 (1962). As always, the task of the Court is to apply the principles to the particular document before it.

I “One of the strongest presumptions of the law is that where a will contains a residuary clause, every intendment shall be made against there either being a general or a partial intestacy.” McElroy, supra, at 229 Md. 283 . In Item 2 of her will, the testatrix stated: “And as to all my real and personal estate, I hereby dispose of the same as follows * * *” Item 7, the residuary clause, begins as follows: “I give, devise and bequeath all the rest, residue and remainder of my estate, real and personal * * *” These express manifestations of the testatrix’s general intent re-enforce the presumption against there being a partial intestacy. However, where the residuary clause itself does not make a complete disposition of the residuum, the Court will not fill the void; it will not create a new will for the testator. Partial intestacies have been found in a number of cases where the will contained residuary clauses, but the testator failed to dispose of a portion of the residue.

See cases cited in the dissent in McElroy , at 229 Md. 291 . In this case, Item 7 of the will clearly and unambiguously provided for a remainder to John’s children, after Eleanor’s death, in the event that Eleanor had children and all of such children died before their shares became payable. The will did not provide in terms for the possibility of Eleanor never having children. That possibility became the fact.

The parties who contend that there is a partial intestacy argue that, to avoid such an intestacy, it would be necessary for the Court to add ¹¹² language to the will and thereby supply a clause which is not present. Such an interpolation, they submit, would be inconsistent with decisions such as Smith v. Baltimore Trust Co., 133 Md. 404 , 105 Atl. 534 (1919) and Heald v. Heald, 56 Md. 300 (1881), which hold that no words can be supplied, as long as there is any fair ground to question what particular words were intended to have been used. The intestate claimants argue also that Items 2 and 3 of the will show that the testatrix was aware of the possibility of the failure of a remainder over because of the lack of children. In these items, the testatrix provided for two trusts, each of $4,000, for a niece and nephew, in each case for life, then for the benefit of the children of the life beneficiary.

Item 2 then provided: “and if all of them shall die before his or her share shall become payable as aforesaid, then the said sum of four thousand dollars, or the securities representing the same, shall go and be transferred to my nephew, Harry Aldridge, for the term of his life, and after his death to such of his children as, if male, shall attain the age of twenty-one years, or if female, shall attain that age or shall marry, and should both the said Mary and the said Harry die without children capable of taking under this clause of my will, then the said sum of four thousand dollars or the securities representing the same shall sink into and become part of the surplus of my estate and be disposed of accordingly.” There was a corresponding provision in Item 3. That the testatrix expressly provided for the possibility of the life tenant not having children in Items 2 and 3, under the circumstances set forth in those items, does not mean that she intended a partial intestacy in the residuary estate if a similar situation occurred. In Items 2 and 3, the contingency provided for was that both the niece and nephew would die without leaving children and the phrase “die without children capable of taking” was particularly appropriate to cover the combination of circumstances envisaged. In Item 7, the trust for Eleanor terminated, at the latest, when any of her children who survived her attained the age of 21 or married.

The situation envisaged ¹¹³ in Item 7 was simpler because of the absence of dual contingencies. Unlike the dispositions in Items 2 and 3,