Perkins v. Iglehart

Marbury, C. J., delivered the opinioin of the Court. This case arose through a trustee’s petition filed in the Circuit Court for Baltimore County, asking for a construction of the will of Lucy James Dun. She died in 1921, a widow with one child, a son, William James Rucker. All parties thought by the trustee to have a possible interest in the estate were brought in by summons or order of publication, and those claiming interest appeared by counsel.

Testimony was taken, numerous exhibits were filed, and from the decision of the chancellor four appeals were taken, all combined in one record, and all heard together in this Court. Mrs. Dun had been twice married. Her first husband was Major William A. Rucker. William James Rucker was the son of this marriage.

Major Rucker died in 1893, and in 1899 Mrs. Rucker married her second cousin, James Dun, who died in 1908. There were no children of this marriage. The estate which Mrs. Dun left was a valuable one, consisting very largely of an interest she had in the business of R. G. Dun and Co. See Douglass v. Safe Deposit & Trust Co., 159 Md. 81 , 150 A. 37 . This interest became part of her residuary estate, was subsequently disposed of by the trustee, and the proceeds in ⁵²⁴ vested in securities which now constitute the estate which is to be distributed in these proceedings.

Mrs. Dun, in her will, gave various specific and pecuniary bequests, and then by the fourteenth clause provided as follows: “14. All the rest and residue of my property of every kind, I give, devise and bequeath to the Safe Deposit and Trust Company of Baltimore, in trust to hold the same, with full power to the said Trustee, both as to this trust and as to the trust created by the second clause of this my will, to make and change investments from time to time in its discretion and to sell the whole or any part of the trust estate for any purpose which, in its discretion, may be for the best interest of the same, without obligation on the part of any purchaser to see to the application of the purchase money, and to collect the income of the said trust estate and, after deducting taxes and expenses of administration, to pay over the net income thereof in monthly or quarterly instalments, as it may deem best, to my son William James Rucker, during his life, into his own hands and not into the hands of another and without power of anticipation, or,, if my said Trustee shall deem it to be for the best interest of my said son, to apply the said net income for his benefit and for the benefit of his family in its discretion, during his life; and from and after the death of my said son to set apart one-third of said trust estate and pay the net income thereof to his widow during her life or widowhood, and to hold the remaining two-thirds of said trust estate for the benefit of his child or children living at the time of his death and the descendants then living of his deceased children, per stirpes and not per capita,' and to pay over and transfer the same, free of any trust, to such of them as shall attain the age of twenty-one years, the original share of each therein to be paid when such age is attained, and any addition thereto, accruing by reason of the death under such age of any beneficiary, to be paid upon such event or as soon thereafter as the person hereby entitled ⁵²⁵ to .receive the same is of full age, and until each of them shall attain such age, to apply his or her share, original or accruing, of the net income of said trust estate to and for his or her benefit, maintenance and education, in its discretion; but, if my son shall die without children or descendants him surviving, or if all of them shall die before attaining the age of twenty-one years, then to divide, pay over and transfer the same, free of any trust, to and among the persons who may be the next of kin of my said son according to the laws of Maryland at the time of his death; and from and after the death or remarriage of the widow of my said son, to hold the one-third part of the trust estate, so as above set apart for her, for the benefit of the child or children of my said son then living and the descendants then living of his deceased children, per stirpes and not per capita, under the same limitations as are herein above set forth as to the two-thirds part of the trust estate; but if there shall be no such children or descendants then surviving, or if all of them shall die before attaining the age of twenty-one years, to divide, pay over and transfer the same, free of any trust, to and among the persons who would be the next of kin of my said son according to the laws of Maryland if he were living at the time of the death or remarriage of his widow. I authorize and empower my said Trustee to invest fifty thousand ($50,000.00) dollars of the trust estate, or so much thereof as may be requisite, in the purchase for my said son and his family of a home such as he may desire and select, the house and land so purchased to continue however as a part of the trust estate.” The son William J. Rucker, was twice married; both wives predeceased him. He was a resident of Virginia and died there December 19, 1941, testate, and without issue.

W. Allan Perkins and George Pausch were made his executors. They are parties herein, and appellants in No. 4. The appellants in Nos. 5 and 6 are, respectively, a first cousin of William J. Rucker on his father’s side, and the executor of a similar first cousin who has ⁵²⁶ died since William J. Rucker’s death. The appellants in No. 7 are the widow and administratrix and only child of another first cousin on the Rucker side, who, however, predeceased William J. Rucker.

The appellees are three first cousins of William J. Rucker on his mother’s side. They are nieces of the testatrix, Mrs. Dun. Other facts in the case' will be mentioned and discussed when the parts of this opinion to which they are pertinent are reached. All of the questions here involved concern that part of the residuary clause of Mrs. Dun’s will which disposes of one-third of the residuary estate, after the death of the testatrix’s son.

There is no dispute that the two-thirds, after the death of the son without leaving any children or descendants, went to the next of kin of the son at the time of his death, and we are advised that it has already been so distributed. The remaining one-third, however, is set apart under separate provisions, and it is in respect to this one-third that the parties have conflicting theories. It is contended by the Rucker executors that the two gifts over, each to take eifect from and after the death or remarriage of the son’s widow, violate the rule against perpetuities. This rule is stated by Gray on Perpetuities, 4th Edition, page 191, paragraph 201, as follows: ’“No interest is good unless it must vest, if at all, not later than 21 years after some life in being at the creation of the interest.” The decisions of this Court follow this rule.

It is stated in Graham v. Whitridge, 99 Md. 248, 274, 275 , 57 A. 609, 671 , 58 A. 36 : “The period fixed and prescribed by law for the future vesting of an estate or interest is a life or lives in being at the time of its commencement, and 21 years and a fraction of a year beyond, to cover the period of gestation; and, where property is rendered inalienable or its vesting is deferred for a longer period, the law denounces the devise, the bequest, or the grant as a perpetuity, and declares it void.” This statement is quoted with approval in the case of Gambrill v. Gambrill, 122 Md. 563 , 89 A. 1094 , ⁵²⁷ and the Court further said, 122 Md. at page 569 , 89 A. at page 1095 : “In determining this question of remoteness, there is an invariable principle that regard is to be had to possible, and not merely actual events. It is not determined by looking back on events which have occurred and seeing whether the estate has extended beyond the prescribed limit, but by looking forward from the time the limitation was made and seeing whether, according to its terms, there was then a possibility that it might so extend. * * * The event upon the happening of which the remainder is to vest must be one that is certain to happen within the prescribed period, or the limitation will be bad.” There is quite a full discussion of the origin and applicability of the rule in the late case of Safe Deposit & Trust Co. v. Sheehan, 169 Md. 93 , 179 A. 536, 542 , where it was said: “The rule is applicable to limitations of either legal or equitable estates in either real or personal property.” The contention of the Rucker executors is that the widow of the son of the testatrix might have been born after the death of the testatrix, and might have lived longer than twenty-one years and the period allowed for gestation after the death of the son. Therefore, the gift over to the children and descendants, and the gift over to the next of kin in the absence of children and descendants are both void, because both might fail to vest within the required period. This view, which was adopted by the chancellor, seems to be correct, if we read the residuary clause as it is written.

It is, however, strenuously resisted for various reasons by other parties to the case. We will take up their contentions in the order which seems most logical. Before doing so, however, it may be well to restate the general rules of construction of wills, so that they may be borne in mind. The whole intention of the testatrix is to be ascertained from the entire will, as well as any specific intention shown in the particular clause under discussion.

This intention is to be gathered not only from the' will, but from pertinent circumstances surrounding the testatrix ⁵²⁸ at the time of making the will. In cases where it is claimed that the rule against perpetuities is violated, the Court first decides what the will means, and then determines whether the will so interpreted violates the rule. There is a presumption against intestacy, especially where there is a residuary clause, indicating that the testatrix intended to dispose of her entire estate. If there are two constructions, either of which can be adopted without straining the words of the' will, the Court will adopt that one which disposes of the entire estate, rather than one which results in a total or partial intestacy.

But the Court will not write a new will, nor attempt to surmise what the testatrix would have done had she thought of the contingency which has arisen. Nor will the Court substitute its own judgment for hers, as to what she should have done. It will interpret what she has said, in the light of the circumstances which have arisen, and determine, from the will itself, what she meant. The general intention of the residuary clause before us seems to be to provide for the son of the testatrix, his widow, his descendants and his next of kin.

The entire clause revolves around the son. No question arises, or could arise, as to the estate given to the son’s widow during her unmarried life. It vests within the required period. The question arises as to the two subsequent bequests of the one-third taking effect “from and after the death or remarriage of the widow.” The first of these directs the one-third residuary estate to be held for the benefit of the child or children of the son “then living,” and the descendants “then living,” of his deceased children per stirpes and not per capita.

It has been suggested in connection with this bequest that it comes within the rule that a contingent estate to a class vests immediately upon the birth of a member of that class, and becomes vested as to him, with the possibility of his being divested as to part by the subsequent birth of other members of the class. The latest applications of this rule are found in the cases of Bishop v. ⁵²⁹ Horney, 177 Md. 353 , 9 A. 2d 597 ; Hans v. Safe Deposit & Trust Co., 178 Md. 52 , 12 A. 2d 208 , and Safe Deposit & Trust Co. v. Bouse, 181 Md. 351 , 29 A. 2d 906 . The argument for its application to the present case is that any children of the son must have been in being at his death, or within the usual period of gestation thereafter, and therefore the gift must have taken effect within the period. This view, however, does not take into account the fact that the bequest is not only to the children, but to descendants of deceased children and the further fact that the time of ascertainment of the beneficiaries is fixed at the death or remarriage of the widow.

Descendants of deceased children might be the only persons of the class in existence at the death or remarriage of the widow, and they might not have been born during the lifetime of William James Rucker or twenty-one years thereafter. “If a gift is to a class in this technical sense, and the gift is good as to some members of the class, but is within the rule against perpetuities as to other members, the entire gift must fall. The general rule is that if a gift is void as to any of a class, it is void as to all the class.” Miller on Construction of Wills, paragraph 328, page 932. “Assuming then that the devise is not to vest until the remote period, the devise to the whole class is bad; and it is immaterial that some persons are in esse who should they reach twenty-five would be entitled to share.” Gray on Perpetuities, 4th Ed., paragraph 373, page 394, paragraph 537, page 522. See also 48 Corpus Juris, Perpetuities, paragraph 44, page 964, and paragraph 46, page 965. The principle that a contingent gift to a class vests on the birth of a member of the class cannot be applied to make a void estate valid, because it would then conflict with the rule that whether an estate is void as a perpetuity must be determined by what might happen, rather than by what has happened.

It is contended by the appellants in all four appeals that neither the bequest to the children and descendants, nor that to the next of kin are void because the word ⁵³⁰ “widow” in the will does not mean widow in the usually accepted sense of a surviving wife, but means Sally Woods who was engaged to the son at the time the will was made on April 7,1910, and who married him twenty-one days later. She was in being at the death'of the testatrix, dying on December 20, 1932. The surrounding circumstances which we are asked to consider in connection with this contention are that the will was made at the time when Mrs. Dun had come to Baltimore to take part in the festivities in connection with her son’s approaching marriage to Sally Woods; that she undoubtedly had no other thought except that Sally Woods would ultimately become her son’s wife, and might become his widow; that she did not name Sally Woods because of a natural delicacy under the circumstances, but that she meant Sally Woods when she used the word “widow.” Maryland cases and cases from other jurisdictions are cited in support of this contention. The Maryland case principally relied on is Lavender v. Rosenheim, 110 Md. 150 , 72 A. 669 , 132 Am.

St. Rep. 420 . In that case a mother left her estate to a trustee to pay income to her son during his life, and upon his death to pay the principal to his children. In the event no children survived, the principal of the trust estate was given absolutely to “the wife of my said son.” The son, at the time the will was made, was married. His wife subsequently divorced him and married another man.

The son died, leaving no children, and the Court held that his former wife was entitled to the estate. Other cases, which hold that if at the time of the making of the will, there is a person who would fully answer the description of a widow should she survive her husband such person is meant by the word “widow,” are Mercantile T. & D. Co. v. Brown, 71 Md. 166 , 17 A. 937 ; In re Solm’s Estate, 253 Pa. 293 , 98 A. 596 ; Anshutz v. Miller, 81 Pa. 212 ; Van Brunt v. Van Brunt, 111 N. Y. 178 , 19 N. E. 60 ; In re Friend’s Estate, 168 Misc. 607 , 6 N. Y. S. 2d. 205; Willis v. Hendry, 127 Conn. 653 , 20 A. 2d. 375. It is, of course, well recognized that a beneficiary may be desig ⁵³¹ nated by description rather than by name, and that who is intended can be determined by who would answer that description had the contingency upon which the estate to such person is limited, happened at the time of making the will. That is all these cases hold.

In each case the widow was the wife at the time of the making of the will. Had her husband’s death occurred at that time, she would have been the widow. In the case before us we are asked to go much further. We are asked to hold that a person who is not married to the testatrix’s son is the person she means by her son’s widow.

It so happened that this person did marry the son, that she died before he did, and that he then married another wife who also predeceased him, and that he died leaving no widow at all. If we should say that Mrs. Dun meant Sally Woods by the word “widow” she used, and if it should have happened that Sally Woods had not married the son at all, but that he had married someone else who survived him, it would necessarily follow that Sally Woods would get the bequest although she had never actually become connected with the testatrix by marriage to her son. The real widow would not take at all. This possible contingency illustrates the instability of the contention.

What Mrs. Dun was interested in doing was to take care of her son and his relations. He was taken care of for his life, his widow was taken care of for her unmarried life, his children and descendants and finally his next of kin were attempted to be taken care of. All the residuary clause related to the son, and all the beneficiaries were to take by virtue of their relationship to the son. It was the relationship to the son, and not any particular friendship for Sally Woods which motivated the bequest.

Mrs. Dun said she. was providing for her son’s widow. We must assume that was what she was doing, and not that she was trying to take care of a particular person, even though she thought that person might some day be the widow of her son. It is also contended that by reason of certain proceedings in this case and a clause in the son’s will the ⁵³² executors of the son are estopped from making any claim that any part of the will is invalid, and also that in these proceedings there has been a prior judicial construction of the will. An examination of the record, however, does not sustain these contentions.

On October 26, 1921, the trustee filed a petition in the Circuit Court for Baltimore County in which it said that the son and his wife (then Sally Woods Rucker) were dissatisfied with an authorization in the residuary clause of the will to the trustee to invest $50,000 of the trust estate for the purchase of a home for the son and his family. The trustee further pointed out that if the son and his wife should institute proceedings attacking the validity of the will, it would result in a considerable expense to the estate, and that the trustee had agreed with the son and his wife to pay them $50,000 absolutely in place of expending the said sum for a home, and thus settle all questions connected with a contest of the will. With this petition was filed a copy of an agreement dated the same day in which the son and his wife agree that if this payment is made they “hereby ratify the said last will and testament and agree to abide by its terms.” This compromise settlement was ratified by the Court. Subsequently, in 1923, the trustee filed a bill of complaint which was the initiation of the present proceedings.

The purpose of this bill of complaint was to ask the Court to assume full jurisdiction of the trust and to authorize the trustee to continue to hold the undivided one-sixth interest in R. G. Dun and Co. subject to an agreement which had been made in May, 1912, and to determine the rights of the son and his wife in the revenue and profits from the business of R. G. Dun and Co. The Court was asked to consolidate the petition of October 26, 1921, already referred to, with this case. The son and his wife, Sally Woods Rucker, filed an answer in which they claimed that all of the profits received from R. G. Dun and Co. constituted income of the trust estate created by the residuary clause of Mrs. Dun’s will, “and under the terms of said will are all payable to the De ⁵³³ fendant, William James Rucker, during his life and after his death, one-third thereof to the Defendant’s wife, Sally Woods Rucker, during her life or widowhood.” The case was immediately submitted, and the Court signed a decree, consolidating the two cases, assuming jurisdiction of the trust, holding that all the net income, including the profits from the business of R. G. Dun and Co., belonged to the son “and that from and after the death of William James Rucker, his wife is entitled to receive from said trustee, during her life or widowhood, one-third of said net income.” It is obvious that these two proceedings were taken, the first to approve a compromise settlement, and the second to determine whether certain revenue was income or corpus. In the first proceeding the son agreed not to attack the validity of the will, but said nothing about its construction. In the second, he and his wife said that she would be entitled to one-third of the income after his death, and the Court so decreed.

At that time, Sally Woods was the son’s wife and the decree of the Court was not construing the will with respect to a situation which might arise in case Sally Woods should not be the son’s widow. On the contrary, it was assuming from the fact that she was then his wife that as his widow she would be entitled to the income from one-third of the residue of the estate, which is something no one now disputes. It would be a very strained interpretation of the decree to assume that the Court decided that Sally Woods would be entitled to this income at the son’s death, even if, by reason of divorce, she might not then be his widow. The Court did not have before it all the persons who might be entitled to dispute such construction, such as someone else who might really become the son’s widow.

We cannot assume that any such ideas were then in the minds of the Court or of the parties to the case. There was not, nor could there be any judicial interpretation of the will extending any farther than the situation as it then existed. There is nothing in the papers filed by the son which estops his executors from contending now for a proper construction and interpretation of the will. ⁵³⁴ In the will of William James Rucker, he states: “I have no relations closer in degree than first cousins; several of these I am only slightly acquainted with, several of them have substantial means of their own. Under the will of my mother, Mrs. Lucy James Rucker, which was admitted to probate in the Orphans’ Court of Baltimore County, Maryland, on the 31st day of August, 1921, all of these cousins are provided for; hence I have not felt it proper to include in this my will or in the trust agreement of even date herewith any of my relatives other than those named, for all of whom I have a personal and affectionate regard.” It is claimed that by this statement, he shows that he thought his mother’s will was wholly valid, and that as a result some of the cousins who might have benefited thereby suffered by not being included in his will.

But he probably had in mind the two-thirds part of the residue as well as the one-third, .and under the two-thirds clause his first cousins got twice as much as they would have gotten under the one-third, were it valid. In any event, his construction of his mother’s will, or his belief in its validity, would not estop his executors from now making the contention they do. Another ingenious contention is made in an effort to prevent intestacy, and to make valid the limitations to the heirs of the son. In considering this