Plitt v. Peppler

Urner, J., delivered the opinion of the Court. The will of Maximilian Plitt, a resident of Baltimore, who died in 1905, included the following provisions: “Fourth. After the payment of the foregoing bequests, I give, devise and bequeath unto my three sons, George L. Plitt, J. William Plitt and Howard M. Plitt (whom I will call my Trustees for convenience herein) all my property and estate of every kind and description, real, personal and mixed, of which I die seized or possessed, or to which at the time of my death, I may be in any manner entitled, in trust and confidence, however, to pay the net annual income, rents and profits thereof, for the use, support and maintenance of my wife, Sophia Plitt, for the full end and term of her natural life. * * * “It is my will that this trust shall continue for five years from and after the death of my wife Sophia; the income, rents and profits thereof to be added to the corpus of the estate. ²⁵⁴ “If my wife Sophia predeceases me, it is my will that this trust shall continue for'five years after my death, and that the income, rents and profits thereof, be added to the corpus of the estate. “At the expiration of five years after the death of my wife Sophia, or five years after my death if she predeceases me, I direct that the aforesaid trust shall cease, and that my estate be divided as follows, viz: “Fifth. I give, devise and bequeath to my sons, George, William and Howard, and to the survivor or survivors of them, Real Property of the value of Ten Thousand Dollars ($10,000) to be selected from my estate at a fair valuation to be placed by them upon the property, to be held in Trust and Confidence by them, to pay the net annual income and rents from the said property to my son J. Henry Plitt during the term of his natural life, the payments thereof to be made monthly. “After his death, I give, devise and bequeath the aforesaid property, absolutely, to his three children of his wife, Blanche, namely Louetta, Charles and Russell, to be divided equally among them, share and share alike. “And in the event of the decease of any of the said three children of my son Henry, without issue living at the time of his, her or heir respective deaths, the part or share of him, her or them, shall go to the survivor or survivors of them, and the heirs, executors, administrators or assigns of such survivor or survivors. “Sixth.

I give, devise and bequeath, absolutely, all the rest and residue of my estate, real, personal and mixed, to my children, George L. Plitt, J. William Plitt, Charles L. Plitt, Louetta P. Crowder, Ella A. Plitt, Gertrude Hammerbacher, Nellie S. Bishop and Howard M. Plitt, to be divided equally among them, share and share alike, the children of any deceased child or children to take the share to which ²⁵⁵ their parent or parents would have been entitled, if living. “It is my will and I therefore direct, that all this rest and residue of my estate, real, personal and mixed, referred to above, be divided by my Trustees before mentioned, in whom I have implicit confidence, into eight parts, as near alike as possible, fair valuations to be placed upon the various houses and other property by them; that lists be prepared of these eight equal parts and placed in plain envelopes in such a manner that the contents of each shall be unknown to all, and that my children each draw for these equal parts, beginning with the oldest, followed by the second and so on. I have selected this method of dividing my estate, so that all of my children shall share alike, with the exception of my son Henry, for whom I have provided in the Fifth Clause of this Will.” The wife of the testator survived him, and the trust created by the will was administered for her benefit until her death in 1928. Thereafter the trust was continued for five years as the will provided, during which period the corpus of the estate was to be augmented by the addition of the income. The testator’s daughter, Gertrude Hammerbacher, died in the year 1908, without issue but survived by her husband, G. Herman Hammerbacher, to whom her will devised and bequeathed her estate.

Mr. Hammerbacher died intestate in October, 1926, leaving his mother as his only heir at law, whose death occurred in December of the same year, and whose estate has passed to her other children by virtue of an assignment in her lifetime and the provisions of her will. In this proceeding for the construction of the will of Miximilian Plitt the question to be determined is whether the interest in his estate devised and bequeathed to his daughter, Gertrude Hammerbacher, was vested and transmissible by her will, or was contingent upon her living until the time when her father’s estate was to be divided in accordance with his testamentary direction. The chan ²⁵⁶ cellor decided that the interest of Mrs. Hammerbacher was vested, and the appeal is from a decree giving effect to that conclusion. As the law favors an early vesting of estates, and as the estate in remainder under consideration in this case was devised and bequeathed to the testator’s children by name, its vesting should be referred to the time of his death rather than to the time appointed for the division of the estate, unless the will clearly indicates an intention that the remainder should not vest until the later period.

Wilson v. Pichon, 162 Md. 200 , 159 A. 766 ; Martin v. Cook, 129 Md. 195 , 98 A. 489 ; Cole v. Safe Deposit & Trust Co., 143 Md. 90 , 121 A. 911 ; Lee v. Waltjen, 141 Md. 450 , 119 A. 246 ; Swift v. Cook, 133 Md. 653 , 105 A. 869 ; Brian v. Tylor, 129 Md. 145 , 98 A. 532 ; Weller v. Kolb, 128 Md. 221 , 97 A. 542 ; Miller, Construction of Wills, p. 629. There are two alternative periods mentioned in the will for the division of the estate among the remaindermen. In the event, which occurred, that the wife of the testator survived