Reed v. McIlvain

Pearce, J., delivered the opinion of the Court. The bill in this case was filed by the appellee, Elizabeth G-. Mcllvain, to obtain a judicial determination of the validity of certain appointments of property made by Sarah B. Mcllvain in her will, in virtue of a power of appointment conferred upon her as to said property, by her father, James Beatty, in Ms will, the ease being heard on the bill, exhibits and answers. James Beatty died in 1851, leaving a will and codicil duly executed and probated, the former dated May 6th, 1818, and the latter June 28th, 1851.

The fifth clause of the will is the only clause which it is necessary to consider. By that clause the testator gave to Ms son, George J. Beatty, certain real and personal property, in trust for the sole and separate use of his daughter Sarah B. McKim (who afterwards married Donald Mcllvain) for the term of her natural life, and from and after her death, ¹⁴² “in trust as to the principal of said estate, property and funds, for the use of such person or persons, or for such uses and purposes as the said Sarah shall, by her last will and testament, executed in the presence of, and attested by three credible witnesses (which will and testament she is declared competent, and is hereby authorized and empowered to make and execute, her coverture notwithstanding, or whether sole or covert at the time of the execution thereof) shall have named, limited and appointed; and in default of such nomination, limitation and appointment, then for the use of such person or persons -as would by the now existing laws of the State of Maryland be entitled to take an estate in fee simple in lands by descent from her, their heirs and assigns, to be then conveyed, assigned, paid and delivered over to such person or persons, when the trust hereby created shall cease.” The testator’s wife Elizabeth, and daughter Mary, having 'died between the dates of the will and codicil, he revoked by’ the codicil, all devises and bequests in their favor, and also the residuary clause of his will, and made other disposition of the property not disposed of by said will and codicil, into six parts, one of which he gave to George J. Beatty in trust for Sarah B. McKim “in the same manner, and for the same uses and purposes,” as that portion of his estate which was by said will devised and bequeathed in trust for said Sarah B. McKim. Subsequently, by proper proceedings, George J. Beatty was released as trustee, and Donald Mcllvain was appointed in his stead', and upon his death, John McKim, son of Sarah B. McKim, was appointed in his stead. Sarah.

B. Mcllvain died January 31st, 1899, leaving a will and codicil, the former of which, we will transcribe herein, but it will not be necessary to set out the codicil in full: The last will of me, Sarah B. Mcllvain, wife • of Donald Mcllvain, of Baltimore City and State of Maryland. “Last Will and Testament of Sarah B. Mcllvain. ¹⁴³ “Whereas by a power reserved to me in a Bill of Sale in trust dated the 3rd day of November, A. D. 1849, and duly recorded among the Chattel Records of Baltimore City in Liber A. W. B. No. 78, folio 384, etc., enabling me to devise and bequeath the property therein specified, now I do devise the same to my son John McTCim and to my daughter Emilie McXim Reed, or to the survivor, if either of them should die in my lifetime, absolutely, and the proceeds thereof, and whatever has or mav be purchased with its proceeds. “And whereas also by the last will and testament, and Codicil thereto of my Eather, James Beatty, I am empowered to devise the estate, property and funds therein devised by him for my sole and separate use, now, therefore, in execution of said power I give and devise the whole of the said estate and property, however the same may now, or hereafter be invested, or in whatsoever condition it may he in at the time of my death, to my son John McBhm and to my son-in-law William Reed in trust to apply the one-half of the net income -and profits therefrom accruing to the use of my husband Donald McEvain for and during his natural life, and to apply the remaining half in equal parts to the use of my son James William McEvain and of my daughter Elizabeth Grant McEvain, and I also devise to them upon the same trust all other property of which I shall die seized and possessed, except the property mentioned and described in the Bill of Sale aforesaid, at and after the death of my said husband then the said property is to be divided into four equal parts, one part of which I devise to my son John McTiim, and his heirs absolutely; one other part to my son James William McEvain and his heirs aboslutely. The remaining two parts are to be continued to be held by my said son John McKim and William Reed upon the following trusts, namely, as to one of said shares to permit and suffer my daughter Emilie to receive, collect and apply to her own sole and separate use net income therefrom for and during her life, with no power to her to alienate or anticipate the said income, at and after her death to hold the same for any children she may have living at the time of her death, or their descendants, the descendants of any child dying to take the share its or their parent would have taken if living, and in the event of there ¹⁴⁴ being no such children, then to hold the same for such of my descendants as the said Emilie may by last will name, limit and appoint, and failing so to appoint, then to such persons at the time of her death as would then he my heirs at law, and to hold the last remaining fourth for the use and benefit of my daughter Elizabeth Grant Mcllvain in the same manner, upon the same trusts, power of limitation and appointment as are herein provided and directed as to the share for her sister Emilie, and I declare this paper to have been executed by virtue of all and every power me thereunto enabling, and I do hereby revoke all other wills hy me at any time heretofore made, and hereby con ■ stitute my son John McKim sole executor thereof, and I wish that he as executor shall be excused from tbe necessity of giving Bond for the performance of his duties as such. “Witness my hand and seal this Thirteenth day of May, A. D. 1884. . Sabah B. MoIlvaih. (Seal)” By the codicil she declared that her husband Donald Mcllvain had died since the d'ate of her will, and directed that the devises and bequests in said will of her own property and of that over which she had the power of appointment should take effect immediately on her death, and gave her said trustees full power to sell and convey all said property and to invest and reinvest the proceeds on the same trusts.

Sarah B. Mcllvain left surviving her four children, viz, John McKim, Emilie McKim Reed, wife of William Reed, James William Mcllvain all of whom were born during the life of their grandfather, James Beatty, and the appellee Elizabeth G. Mcllvain, who was born after the death of said James Beatty, but Mrs. Mcllvain left no other issue or descendants living at her death. John McKim died in 1905, unmarried and without issue, leaving a will devising and bequeathing all his estate equally to Mrs. Reed, James William Mcllvain, and Elizabeth G. Mcllvain as tenants in common, and in case of the death of either without issue, the share of the one so dying to pass to the other two, share and share alike, and to the heirs, executors and administrators of ¹⁴⁵ such others. James William Mcllvain died in 1909 leaving surviving him, his widow Amelia E. Mcllvain, hut no children or descendants, and leaving a will by which he devised and bequeathed all his estate to his said widow, who was also made his executrix. William Reed, the surviving trustee under the will of Sarah B. Mcllvain, died in 1908, leaving his widow, Emilie McKim Reed, but no children or descendants, and leaving a sister, Anna R. Lewis, his only heir at common law, and leaving a will by which he devised and bequeathed all his estate to his said widow who was also made his executrix.

Upon his death, the legal title to the real estate embraced in the trust descended to his said heir at common law, and the title to the personal property embraced in the trust devolved upon his executrix Emilie McKim Reed. The parties to this proceeding are the appellee, Elizabeth Gf. Mcllvain as plaintiff, and the said Emilie McKim Reed, both in her own right, and as executrix of William Reed', trustee; Amelia F. Mcllvain, both in her own right, and as executrix of James William Mcllvain, and Anna R. Lewis heir at law of William Reed, and as such, trustee holding the legal title to the real estate embraced in the trust. The bill alleges that the appointments made by Sarah BMcllvain under the power in .the will of James Beatty, to John McKim, James William Mcllvain, and Emilie McKim Reed, are upon their face good, but that inasmuch as the plaintiff was not born until after the death of James Beatty the appointment for her, with the remainder or limitations over, violates the rule against perpetuities and is therefore void, and that if the will of Sarah B. Mcllvain is to stand, the one-fourth appointed for the plaintiff, would pass under the will of James Beatty to the heirs at law of Mrs. Mcllvain, viz, John McKim, James William Mcllvain, Emilie McKim Reed and the plaintiff, whereby the three first named would each receive five-sixteenths of the appointed estate, while the plaintiff would receive only one-sixteenth, though it is clear that it was the intention of Mrs. Mcllvain