Mercer v. Hopkins

Fowler, J., delivered the opinion of the Court. This appeal brings before us for construction several clauses of the will of the late Johns Hopkins of Baltimore City. Neither the validity of the will nor of any part of it is assailed. But it is alleged that doubts have been suggested as to its true construction in so far as it relates to that portion of the testator’s estate devised to the trustees in trust for James Monro.e Mercer, and the children of Samuel Hopkins, a deceased brother of the testator, and their issue.

The testator devised to the trustees valuable property in the city of Baltimore in the following terms: “ In trust nevertheless for the children . of my deceased brother, Samuel Hopkins,, and for the benefit of James Monroe Mercer, the husband of my niece, Ella W. Mercer, in manner and form following, that is to say, In trust to collect the rents, issues and profits thereof, and to apply the same in the first place to the payment ³⁰⁷ of all charges and taxes upon or repairs of the said property, or any of it, and afterwards to pay semi-annually three-eighths parts of the clear rents,” etc., “ thereof to my niece, Ella W. Mercer ... for the period of her natural life, and after the death of the said lilla W. Mercer, to apply so much of the three-eighths parts of the clear rents,” etc., “ as may be necessary to the education and reasonable maintenance of any child or children of the said Ella W. Mercer, who may be living at her death until the expiration of the period of twenty years after the death of the said Ella W. Mercer, at which period of time three-eighths parts of the property so devised in trust, for the children of my said deceased brother Samuel Hopkins, and for James Monroe Mercer, together with any surplus of income or property proportionably arising therefrom, shall vest absolutely in the child or children of the said Ella W. Mercer as tenants in common — if there be more than one child the issue - of deceased children taking by substitution as tenants in common the respective shares which their respective parents would have taken.” A similar provision, except as to amount, is made by the testator for each of the three sons and their children; and for James M. Mercer, the husband of Ella W. Mercer, who was a child of Samuel Hopkins, a like provision was made with the additional exception that from the death of said Mercer the trustees are to hold the share of the estate devised for his own use until the expiration of twenty years after the death of his wife, when it is to vest as provided in respect to the other shares. In a later part of the will provision is thus made for the contingency of any child or children of Samuel Hopkins dying without leaving any child or children and for other contingencies. “ If any of the children of my deceased brother, Samuel Hopkins . . . should die without leaving any child, or children, or if any child, or children, of any one of the children of my said deceased brother . . . shall depart this life after the death of his, her, or their parent (such parent being a child of my said deceased ³⁰⁸ brother . . .), and before the expiration of the period of twenty years after the death of his, her, or their parent (such parent being as aforesaid, a child of my said deceased brother . . .), then, and in such event, it is my will that the share, part or interest of the child,'or children, of my said deceased brother, ... so dying, and of the grandchild, or grandchildren, of my said . . . brother . . . so dying, shall be held by my said trustees and by the survivors of them, in trust, as to the realty, for the heirs at law of such deceased child, or grandchild,' or children, or grandchildren of my said brother . . . and in trust, as to the personalty, for such person, or persons, as under the laws of this State would be entitled to be the distributees of the personal estate of such deceased child, or grandchild, children, or grandchildren, subject, however, in all respects, to the other limitations appointed by this, my last will and testament, in reference to the shares of the children of my said deceased brother, ... in so far as such limitations are applicable.” The three sons of Samuel Hopkins died leaving no issue. Arundel died in the lifetime of the testator, March 17th, 1873; John J. on July 22nd,. 1875; and Mahlon on the 26th of August, 1879. Samuel Hopkins’ only daughter, Ella W. Mercer, died April 12th, 1879, and her husband, James M. Mercer, June 22nd, 1878.

Four children survived them, namely, George D., Samuel E., and Mary M., who is the wife of Charles H. Harding, and Margaret W., who is the wife of Salo Shapiro. George D. and Samuel H. Mercer both died without leaving issue, the former May 15th, 1887, and the latter January 27th, 1897, but the two daughters, Mrs. Shapiro and Mrs. Harding, are both living, and are the only surviving grandchildren of Samuel Hopkins. They with their husbands were defendants below and are appellees in this Court. Mrs. Shapiro has two children — both infants, who are also defendants in this suit.

At the time of filing the bill of complaint twenty years had elapsed since the death of Arundel and John J. Hopkins, two of the children of Samuel. ³⁰⁹ It must be also stated that Mahlon and John J. Hopkins, and George D. and Samuel H. Mercer each left a will; Samuel H. Mercer also made a deed of trust. The bill asks that the Court shall also declare what, if any effect, these wills and the deed of trust had upon the property in question or any part of it. The Court below, after hearing the testimony and arguments of counsel, adopted by its decree the construction of the clauses we are to consider, set forth in the bill, and so ably supported in their argument before this Court by counsel representing the appellees. From this decree four separate appeals have been taken — that of Mrs. William T. Howard, the widow of John J. Flop-kins; Mrs. Jennie M. Mercer, the widow of George D. Mercer and executrix under his will; the Johns Hopkins Hospital claiming as residuary devisee and legatee, and Mrs. Henrietta Mercer, the widow of Samuel M. Mercer and as devisee under his will.

While it might be interesting and perhaps instructive to consider the several, and to a large extent, conflicting views or theories of the appellants, perhaps both brevity and clearness will be promoted if we proceed at once to the consideration of the controlling questions presented by these appeals. In the first place, then, it would seem to be too clear for controversy that in the several clauses of his will providing for the children of his brother, Samuel Flop-kins, the testator intended to devise and did devise to each of such children an equitable life estate, during the continuance of which the legal title was vested in the trustees whose duty it was to pay the net income of his or her share to each of the beneficiaries. Some of the appellants earnestly contend that under the Rule in Shelley’s case this life estate becomes an absolute estate, and some of them deny this proposition with quite as much earnestness. We may as well dispose of this question here.

It is well settled that in order to coalesce and form one absolute estate under this rule, the two estates must be of the same quality — both must be equitable or both legal. Ware v. Richardson, ³¹⁰ 3 Md. 505 ; Handy v. McKim, 64 Md. 569 . In order to make this rule apply to the devises under consideration, it would be necessary to cast aside the express language used by the testator by which he declared that the legal estate should be held by the trustees in trust for the life tenant, and from the expiration of the equitable life tenancy in trust for the period of twenty years, when the estate was to vest absolutely in the children or descendants of such life tenant, if any, and in default of any such issue living at that time, then in the persons who should answer to the description of heirs at law of such life tenant. Here we have the equitable life estate, and a subsequent fee simple or absolute estate.

Under such circumstances it is settled the Rule in Shelley’s case cannot be invoked. Assuming, then, that there is an equitable life estate given to Samuel Hopkins’ children, what is the next succeeding estate created by the will? The will provides that after the death of the equitable life tenant, the trustee shall hold the estate in trust to apply so much -of the income ... as may be necessary to the education and maintenance ... of any child or children of ■such life tenant who may be living at the death of such life tenant until the expiration of twenty years after the •death of such tenant. At the end of this period of twenty years after the death of the life tenant, the trust as to his -or her share of the trust estate ceases, and the share, together with any surplus of income or property proportionably arising therefrom, vests absolutely in the child •or children of such life tenant, as tenants in common. .'So far there would seem to be little room to raise a 'question as to the meaning of the language of the will apart from its application to the share of Arundel who •died during the life of the testator, and apart from what is called in the bill the elliptical and obscure language by which the testator subjected or attempted to subject the •devises made in case any of Samuel Hopkins’ children ■should die without leaving any child or children, to the other limitations which he had made in case any of them should die leaving a child or children, in so far as the ³¹¹ limitations made in respect to the latter conting-ency are applicable to the former.

In the clause just referred to applying to the case of a child of Samuel Hopkins dying without child or children, it is provided that if any of the above mentioned children of Samuel Hopkins should die without leaving child or children, or if any child or children of the said children of Samuel Hopkins should die after the death of his, her or their parents, and before the expiration of twenty years after the death of such parent, that then and in such event the share of such descendant shall be held by the trustees in trust as to the realty for the heirs at law of such descendant, and as to the personalty for his distributees. The learned counsel who so ably presented the appeal of Mrs. Howard conceded that up to this point the will was free from ambiguity, and they contended, as do some of the other appellants, that the heirs and distributees who are to take in default of child or grandchild surviving within the twenty year period, are to take the estate absólutely, upon such default, without waiting for the expiration of such twenty year period. To this view we cannot assent. For, however obscure the so-called elliptical clause may be, it is evident that the testator intended to make the estate devised to the heirs and distributees subject to the same limitations which are provided for the estates devised to the children and grandchildren of his brother Samuel, so far as they are applicable.

The two marked limitations appointed in reference to the latter are first, the twenty year period, and second, the absolute vesting of the estate at the end of that period. How, then, can we, in the face of this express direction of the testator, say that he intended the “ heirs ” and “ distributees ” to take an absolute estate during and before the end of the twenty years? The provision as to the time of vesting is as applicable in the one case as in the other — and it follows therefore that the estate given to the heirs and distributees must vest, not during the twenty year period, but at the end thereof. It also necessarily follows that