Perin v. Perin

Thomas, J., delivered the opinion of the Court. The appeals in this, case are from a decree of the Circuit Court of Baltimore City construing the will of Helson P'erin, deceased. Mr. Perin, who was a resident of Baltimore City, died in 1904 leaving a large estate, and leaving surviving1 him his wife, Mrs. Ella K. Perin, and the following children: Inurence Perin, who was born in 1878: Oliver P'erin, who ²⁸⁴ was bom in 1881; Nelson E. Perin, who was born in 1883; Marie Louise Perin (now Mrs. Whitridge), who was born in 1886; Bradford Perin, who was born in 1888, and Gladys Perin (now Mrs. Harrison), who was born in 1889. Mrs. Perin and all of the children are still living, with the exception of Laurence Perin, who died in June, 1917, leaving a son, Laurence Perin, Jr., who was born in April, 1906.

All of the other children married, but none of them have any children with the exception of Nelson E. Penn, who has two minor children, Anne Wallingford Perin and Camelia Anderson Perin. • Mr. Perm’s will is as follows: “I, Nelson Perin, of the City of Baltimore, in the State of Maryland, do make, publish and declare this my last will and testament in form and manner as follows: “Eirst — X desire all my debts shall be paid by my executrix hereinafter named. “Second — I give, devise and bequeath all my estate and property, real, personal and mixed, wheresoever the same may be and wheresoever situate, unto my wife, Ella 3L Perin, for life. I hereby give unto her power to sell or dispose of any of the realty or personalty of my estate at such times and in manner as she may deem proper, the purchasers thereof not to be responsible for the application of the purchase money. “Third — The life estate" of my said wife shall continue during her widowhood, and should she marry, then said life estate shall terminate. It is my will and I so devise that my said estate shall be divided equally among my surviving children and said Ella K. Perin. The children or descendants of any child shall be considered as taking its or their parent’s share; said children’s portion of my said estate shall be held in trust for said children by the Safe Deposit and Trust Company of Baltimore, upon trust that ²⁸⁵ it shall pay unto my sons when they reach the age of twenty-five such child’s share. “Said trustees shall hold my daughters’ portion of my said estate during the life of my said daughters, and after their death to pay the same unto their children or heirs at law. “In making this bequest unto my wife, I do so with full confidence that she will from time to time, as she deems proper, make such advancements unto my children as may be required, either out of the principal or income of my said estate. “Eourtli — I hereby constitute my wife, Ella K. Per-in, the executrix of this my last will and testament, hereby revoking all other wills and codicils by me heretofore made; and it’s my will that my said executrix shall not be required to give any bond for tbe administration of my said estate, except the nominal bond which may be required for taxes and administration expenses.” Mrs. Perin, who qualified as executrix and assumed the administration of the estate, acting under the power given her in the will, has from time to time made advances to the testa,tor’s children out of the principal of his estate, and at the time of the institution of the proceedings in this case the amounts so advanced to each were as follows: Laurence Perin, $420,216.82; Oliver Perin, $116,500.00; Helson E. Perin $109,064.05; Mrs. Whitridge, $20,000.00; Bradford Perin, $13,950.00; Mrs. TTarrison, $1,854.10.

Laurence Perin consumed or lost the amount so advanced to him, which about exhausted his prospective share, and died in 1917, leaving no estate, so that his infant son, who is now fifteen years of age and resides with his aunt, Mrs. Whitridg;e, in Baltimore City, will be left without any share of his grandfather’s estate unless some adequate provision can be made for him out of the shares of the widow or other children of the: testator. His grandmother, Mrs. Perin, and his aunt, Mrs. Whitridge, are anxious to make such provision, ²⁸⁶ and it is with that view that the bill in this case was filed by-Mrs. Perin, Mrs. Whitridge and her husband, and Laurence Perin, Jr., by his next friend, against all the other parties interested in the estate for the purpose of having the will construed and their respective rights determined. All of the defendants answered consenting to the determination of the questions submitted, and upon the petition of the plaintiffs special counsel was appointed by the court to represent the infant defendants, the two children of Nelson E. P'erin. In the bill Mrs. Perin charges that by the true construction of the will “upon the expiration of her estate for life or during widowhood, whether such expiration be caused by ber death or remarriage,” she “is entitled to a remainder in fee or absolutely in an undivided share equal to the portion of any child of the testator,” and that if she should die her said share would pass to her heirs, executors or administrators, and that she is entitled to dispose of the same by deed or will, but that she is advised “that the defendants are interested to deny her title to said right of-disposition as to said property,” and that it had been suggested to ber that tbe provision of the will giving her an estate in remainder “should be construed as applicable only in contingency of her remarriage and as-having no operation or effect in tbe event of ber death without .remarriage.” After referring to- tbe clause giving Mrs. Perin power to make advances to tbe children out of the principal of the estate, to the fact that she had under that clause made advances to the children, and to Laurence Perin the whole principal of his share, that he had by unfortunate investments lost the amount so advanced to him and had died leaving no estate, “and without issue except the said Laurence Perin, Jr.,” the bill further alleges that Mrs. Perin, “pursuant to the power and authority vested in her * * * deems it proper to make a further advancement or advancements to her daughter,” Mrs. Whitridge, “out of the corpus or principal of her expectant share in the estate,” to- be held by her “absolutely, free, clear, and discharged of any trust, to- be ²⁸⁷ disposed of as she may deem best”; that she deems it proper that such advancements to Mrs. Whitridge should amount in the aggregate to a large part or the whole of her expectant share, and was advised that she has the right and power to make such “advancements.,” but that she was also advised “that the defendants are interested to deny the same.” The sixth paragraph of the bill is as follows: “The complainants are advised that doubts exist as to the proper construction of the will of said ISTelson Perin, deceased, with respect to the devolution of the shares of his daughters, namely, your oratrix, Marie Louise Whitridge, and the defendant, Gladys Perin Harrison.

According to one construction, the plaintiff's are advised, the provision in said will by which the respective shares of said daughters are directed to be held in trust is applicable only in the event of the remarriage of the testator’s widow, the plaintiff, Ella K. Perin, so that if said Ella K. Perin should die without marrying again the shares of her said daughters will vest in them absolutely, or in fee simple, free and clear of trust. Your oratrix, Marie Louise Whit-ridge, charges that such is the proper construction of said will; but if such is not the proper construction, your said oratrix is advised that there are further doubts as to the devolution of the shares of herself and her sister in said estate. Upon the assumption that the provision creating a trust becomes applicable upon the expiration of the estate of said Ella IC. Perin by her death, as well as by her remarriage, there is a doubt as to the nature of the estate limited in remainder upon the expiration of the equitable life estate of your oratrix, Marie Louise Whitridge.

The trust upon the death of the testator’s daughters is expressed to be ‘to pay the same unto their children or heirs at law.’ Your oratrix:, Marie Louise Whitridge, is advised that a doubt exists as to the true construction of said words ‘children or heirs at law.’ On the one hand, the words ‘children’ and ‘heirs at law’ may be regarded as synonymous and as equivalent to ‘chil ²⁸⁸ dren.’ According to this coiistruction, there would he no special limitation for the event of your said oratrix’s death without issue, leaving her share in that contingency to pass to her heirs, next of_ kin, devisees or legatees. On the other hand, the words ‘children’ and ‘heirs at law’ may be regarded as synonymous and equivalent to ‘heirs.’ According to this construction, the plaintiffs- are advised that the equitable remainder to your said oratrix’s ‘heirs’ would be converted into an estate in your oratrix by the operation of the Rule in Shelley’s Case. By still another construction the gift to the ‘heirs at law’ may be construed as substitutional for the gift to the ‘children,’ the will being construed to mean that the trustees upon your oratrix’s death shall pay the corpus of her share to her children, if any, and, in default of children, to her ‘heirs at law.’ Even according to this construction your oratrix is advised that under the said Buie in Shelley’s Case the contingent equitable limitation to her heirs at law should be treated as an estate in your oratrix, the words ‘heirs a law’ being construed as words of limitation rather than purchas.e. Even if the words ‘heirs at law’ should be construed as substitutional for the words ‘children’ and as words of purchase, nevertheless, the plaintiffs are advised that your oratrix, Marie Louise "Whit-ridge, by adopting your orator, Laurence Perin, Jr., infant, pursuant to sections 71-76, inclusive, of article 16 of the Annotated Code of Public Civil Laws of Maryland, would have the right'to make him her ‘heir at law,’ so that in the event of her death without issue, he would succeed to the share of your said oratrix in the estate of her father, but your Said oratrix and your said orator, Laurence Perin, Jr., are advised that the defendants are interested to deny this right of your said oratrix by adopting your said orator, Laurence Perin, Jr., to invest him with the right of succession to your said oratrix’s share of her father’s estate.

The said, infant plaintiff, Laurence ²⁸⁹ Periii, Jr., has heretofore been adopted by your oratrix, Ella K. .Periii, pursuant to sections heretofore mentioned of article 18 of the Code of Public yeneral laws of Maryland; but your said oratrix, Ella K. Perin, is willing that such adoption be set aside, and that said infant plaintiff he adopted by your oratrix, Marie Louise Whitridge, and her husband, provided said child, if so adopted, would be entitled to succeed to the share of said Marie Louise Whitridge in her father’s estate in the event of her death without issue.” The bill prayed that the court decree a',s follows: (1) That by the true construction of the will Mrs1. Perin, the widow, is entitled, absolutely to a part or share of the estate, “whether she should re-marry or whether she dies without remarrying.” (2) That Mrs. Perin is entitled to make such “advancements” as she deems proper to Mrs. Whitridge “up to the total amount of the principal” of her share of the esitate, and that Mrs. Whitridge is entitled to receive such “advancements” to be held by her absolutely and free from any trust. (3) That no provision is made in the will “for settling in trust” the shares the daughters of the testator in the event of the termination of the particular estate of the widow by her death without having married again, and that Mrs. Whitridge is entitled to a remainder in fee simple in a share of the estate subject to the termination of the estate of the widow by her death without having married again. (4) That the share of Mrs. Whitridge is, at least in the event of her death without issue, subject to her disposition by will, and in the event of the death of Mrs. P'erin without having remarried, the share of Mrs. Whitridge is to be held absolutely free of the trust, and (5) that Mrs. Whitridge is entitled to adopt Laurence Perin, Jr., under the statutes of this State in such manner that he, as her adopted child, would in the event of her death without issue “succeed as her heir at law” to that part of her share of the estate directed to be held in trust for her during her life. ²⁹⁰ Upon the pleadings and evidence in the case the court below passed the following decree: “(3) That by the true construction of the last will and testament of Eelson Perin, late of Baltimore City, deceased, a copy whereof is filed in these proceedings, the clause thereof directing that the said testator’s estate shall be equally divided among his surviving children and the plaintiff, Ella K. Perin, the children or descendants of any deceased child talcing its or their parents’ share, is applicable both in the case of the death of said Ella If.

Perin without having remarried and in the case of her remarriage, and that upon the death of said Ella K. Perin Avithont having remarried, a share in said estate equal to a child’s portion Avill pass to the heirs, executors, administrators and assigns of said Ella K. Perin absolutely and in fee simple, and that therefore she now has the right to alien or assign the same by deed or will. “(2) That by the true construction of the said will of Eelson Perin, deceased, the phrase ‘children or heirs at law’ in paragraph ‘third’ of said will means ‘children who are heirs at law,’ and does not include heirs Avho are not children, and that there is no provision made in said paragraph of said Avill for the disposition of the share of a daughter of the testator in the contingency of her surviving the death or remarriage of her mother and subsequently dying without children; and that in that event the prior absolute gift contained in paragraph ‘second’ of said will, Avhereby her share of said estate, upon her surviviiig the death or remarriage of her mother, is devised and bequeathed to her absolutely or in fee simple, will take effect, and in that event the corpus or principal of her share of the estate aaúII pass to her heirs, executors, administrators and assigns, and that therefore she now has the right to alien or assign the same. “(3) That by the true construction of the said will of Eelson Perin, deceased, the said Ella K. Perin, ²⁹¹ so long as she shall remain unmarried, is empowered to make advancements to any of the children of said Nelson Perin, deceased, daughters as well as sons, out of the corpus or principal of the estate, not exceeding the amount of his or her expectant share of said estate, to be held absolutely or in fee simple by the testator’s son or daughter to whom the same shall be made.” From the foregoing decree three appeals have been brought to this Court: one on behalf of the infant children of Nelson E. Perin, one by the other defendants in the case, and one by Mrs. Whit-ridge and her husband and Laurence .Perin, Jr. The case has been presented by counsel representing the several interests with clearness and ability, and the various constructions suggested have been fully and ably argued. While the will is inartificially drawn, its one prominent and unmistakable feature is the expression by the testator of his utmost confidence in the ability and integrity of his wife. He not only gives her his entire estate during her life or widowhood, hut also full power to sell or dispose of any part of it at such times and in such manner as she may deem proper, and to make from time to time such advances to his children, out of the income or principal of his estate, as she may deem proper. He appoints her executrix, and as far as it was in his power to do so relieves her of the necessity of giving an administration bond.

(1) After providing in the first paragraph for the payment of his debts by his executrix, the testator in the second paragraph of the will gives all his propery and estate to- his wife, Ella K. Perin, for life, with unlimited power to sell and dispose of the same, as we- have stated. The third paragraph provides: “The life-estate of my said wife shall continue during her widowhood, and should she marry, then said life-estate shall terminate. It is my will and I so devise that my said estate shall be divided equally among my surviving children and said Ella K. Perin. The children or descendants of any child shall he considered as taking its or their parent’s ²⁹² share.” Mrs. Perin contends that the devise to her and the children of equal shares of the estate in remainder is applicable to the termination of her life estate either by her remarriage or death without having" remarried, while it is urged on behalf of the defendants that the limitation to her in remainder is only in the event of her remarriage.

The court below adopted the contention of Mrs:. Perin, and we think that view is in accordance with the true construction of the will. There is only one devise or bequest in remainder, and that is contained in the sentence, “It is my will and I so devise that my said estate shall be divided equally among my surviving children and said Ella K. P'erin,” which by its terms is just as applicable to the termination of Mrs. Kerin’s life estate by her death as by her remarriage, and if the bequest in remainder should be reg'arded as applying only in the case of her remarriage, it would result in intestacy in the event of her death without having remarried. A construction leading to that result should, if possible, be avoided.

Albert v. Safe Dep. & T. Co., 132 Md. 104 . The suggestion that the testator could not have intended to give his wife an estate expectant upon her death is not sufficient to justify a construction that would not only result in intestacy but would necessitate reading into the will a condition not expressed. In the case of Robinson v. Mitchell, 99 Md. 50 , where a farm was given to the son of the testatrix for life, and the will further provided that after his death the farm should be “equally divided amongst my said six children,” in answer to the argument that the testator could not have intended to give the life tenant a share in the farm after his death, the present chief judge of this Court said: “Nor would the fact that she (testatrix) knew he would be dead when the time for the division arrived be sufficient reason to justify the court in changing the terms of the will. * * * While it may be unusual, it is by no means unheard of for a testator to devise a life estate and leave