Merwin v. Carroll

Urner, J., delivered the opinion of the Court. A declaration of trust, executed by William T. Walters in 1885, created a trust of certain securities for the benefit of his niece, Maria Louise Moore, during her life and in remainder to “such person or persons, in such shares and proportions, and upon and for such estates and interests” as should be appointed by her last will and testament. The trust has been administered by the Safe Deposit & Trust Company of Baltimore, in consequence of its designation for that purpose in the trust instrument. On April 21st, 1934, Maria Louise Moore died, leaving a will by which, after directing the payment of her debts and funeral expenses, she bequeathed $5,000 and some jewelery to her granddaughter, Marjorie Moore Carroll, $2,000 to efach of her grandchildren, Robert Russell Merwin, Harry Walters Merwin and William Walters Merwin, Jr., and then made the following residuary devise and bequest: “All the rest, residue and remainder of my estate, real, personal and mixed, and wheresoever situate, I give, devise and bequefath to my daughter, Margaret R. Dickson, and my son William W. Merwin, share and share alike.” The estate of the testatrix was insufficient to pay the pecuniary legacies to her grandchildren in full.

Those legacies, aggregating $11,000, would be paid only to the amount of $4,000, unless the deficiency may be supplied from the trust estate, amounting to $12,000, over which the testatrix had a power of testamentary disposition. While her will did not refer to the power, nor otherwise disclose an intention to exercise it (Reeside v. Annex Building Assn. 165 Md. 200 , 167 A. 72 ), there is a statute which provides: “Every devise and bequest purporting to be of all real and personal property belonging to the testator shall be construed to include also all property over which he has a general power of appointment, unless the contrary intention shall appear in the will or ³⁴⁹ codicil containing such devise or bequest.” Code, art. 98, sec. 389. The pecuniary and the residuary legatees under the will of Maria Louise Moore agree that her power of appointment under her uncle’s declaration of trust was exercised by her will, as affected by the quoted provision of the Code, but they differ in their theories as to how the trust estate should be applied. It is the view of the pecuniary legatees that the funds derived from the trust should be distributed to them in such amounts as may be needed to pay their respective legacies.

The residuary legatees are of the opinion that they are entitled to all of the trust estate passing under the power of appointment. The appeal is from a decree which adopted the theory advocated by the pecuniary legatees, awarding to them so much of the trust estate as may be required to complete the payment of their legacies, and to the residuary legatees the balance of that estate. In the will