Roberts v. Roberts

Boyd, J., delivered the opinion of the Court. There are two appeals in this record — one of which was taken by Margaret L. Roberts from that portion of a decretal: order of the Court below, which determined that her interest in her father’s estate passed to Messrs. Roberts and Reindol-. lar, trustees, under a deed of trust made by her and her husband, and the other by Margaret A. Landon and Clymer White, administrator, which involves the construction of the will of Augustus Shriver. The property of the testator having been converted into cash, the questions arising were presented by exceptions to audits.

We will first consider the. appeal last mentioned. ¹⁴⁵ i. Augustus Shriver was married twice, and died on the 28th of July, 1872, leaving surviving him a widow, two children by his first wife and eleven by his second. After bequeathing one hundred dollars to each of the two children by his first wife and providing for payment of his debts and funeral expenses, he devised and bequeathed all the rest and residue of his estate to his wife “for and during the term of her natural life; m trust> for the use and benefit of herself and our children” — expressing his confidence that she would manage it as would be most advantageous to herself and children. He then authorized his wife to sell any part of the real estate which she thought proper — “the proceeds of such sale or sales to be invested upon the trusts of this will” — and also to lease' the real estate.

He further gave her authority to use so much of the principal as may be required, “if it shall be necessary for the support of herself and' our children, dr for their education or advancement in life (all of which I confide to her discretion),” but recommended that she should not sell the farm on which he resided unless absolutely necessary. Then follows this clause, “I devise and bequeath all my estate, real and personal, remaining at the death of my said wife, to my children by my said wife, share and share alike, absolutely in fee-simple, the child or children of a deceased child shall stand in its. or their parents place and stead, and receive and have the share and interest its and their parent would have been entitled to if living.”' He appointed his wife guardian of their children until they were twenty-one years of age, and sole executrix of his will. Mrs. Shriver, the widow, died May 1st, 1902, having disposed of a part of the corpus of the estate, in pursuance of the power conferred upon her. Two of the eleven children died after their father and before their mother — Alice E., who' married George R. Gehr and left four children, and Carrie,, who married Edwin Reese, leaving her husband and twin boys surviving her.

Those twins died a few days after their mother. Edwin Reese, the husband of Carrie, married Margaret A. Adams after the death of his two children, and died November ¹⁴⁶ 22nd, 1887, leaving al) his property of every character and description to his wife, Margaret. She afterwards married Thomas D. Landon. Letters of administration were granted to Clymer Whyte on the estates of the two Reese children.

The statement of these facts will suggest the- claim of Mrs. Landon, that is to say; that the two Reese children took their mother’s interest in the estate of Augustus Shriver, and having died intestate their interest went to Edwin Reese, their fatheir as heir-at-law and next of kin, who by his last will and testament left them to his widow, who is now Mrs. Landon, one of the appellants — the children of the testator according to Mrs. Landon’s contention, having taken vested remainders in his estate. It will be observed that the testator left his entire estate (after payment of debts, funeral expenses and legacies) to his wife “for and during the term of her natural life in trust for the usé and benefit of herself and our children.” The legal title was therefore vested in her and she and their children were the cestuis que trustent. The ‘widow and eleven children held the 'equitable estate and were the beneficial owners during the widow’s life. If the testator had simply left his estate to his widow and their eleven children, during the life of the former, and at her death to the eleven children, there could be no doubt that the children would have taken vested, not contingent, remainders in the estate.

It is thoroughly settled in this State that “it makes no difference, as to the vesting, whether the legal estate be devised to trustees who are required to convey according to the directions of the will, or whether the interest is provided to take effect without the intervention of trustees, nor that the trust provides for the accumulation of income until the period of payment or distribution arrives.” Tayloe v. Mosher, 29 Md. 451 ; Ellicott v. Ellicott, 90 Md. 329 . The power given Mrs. Shriver to sell the real estate and invest the proceeds upon the trusts of the will was certainly not sufficient to -show an intention to create a contingent instead of a vested remainder, nor was the power to lease it. Nor can it be said that the power to use so much of the prin ¹⁴⁷ cipal as was necessary for the support of herself and children or for their education or advancement in life necessarily made these contingent remainders. Although that power was expressly confided to her discretion, he did not give the estate to her to do what she chose with it, for her own benefit, but she could only use it for the purposes named, that is to say, for the support of herself and the remaindermen, or for the education or advancement in life of the latter.

In Benesch v. Clark, 49 Md. 497 , it was said that where an estate is given to a person generally or indefinitely with the power of disposition, such gift carries the entire estate, and the devisee or legatee takes the property absolutely, but when the property is given to one expressly for life, and there be annexed to such gift a power of disposition of the remainder, the rule is different and the first taker takes only an estate for life, with the power annexed. That has been approved in Foos v. Scatf, 55 Md. 310 ; Russell v. Werntz, 88 Md. 214 , and other cases. It is clear from those decisions, and authorities cited in them, that there may be a valid devise to one for life with a power of disposition which will not affect the remainder over, unless the power is exercised as authorized, and as to any part of the estate upon which the power is not exercised the remainder is unaffected. It is equally clear that the clause in the will last quoted does not of itself make these remainders contingent. .

The testator, having given his widow a power of disposition, naturally and properly spoke of his estate “remaining at the death of my said wife,” but that would not convert what would otherwise have been a vested into a contingent remainder. The remainder may vest subject to the power, and the uncertainty as to whether the power will be exercised as to all or part of the estate does not make it a contingent remainder. As was well said in Ducker v. Burnham, 146 Ill. 10 : “If the remainder is contingent because it may consist of what remains after the exercise of the power of sale and use conferred upon the life tenant, then, in case the life tenant should fail to sell any of the estate or to exhaust for her own use any of the principal ¹⁴⁸ thereof, the remainder would still be "contingent because it would consist of what remains after paying off the charges created upon the property by the directions to pay the debts and the bequests. To hold that a remainder is contingent, because it cannot be known how much will be left until the debts and funeral expenses and other charges are paid, would make every remainder given by will a contingent one.

But it is well settled that a devise to a person after the payment of debts and legacies is not contingent until such debts and .legacies are paid, but confers an immediately vested estate. (Scofield v. Olcott, supra.) In such cases the remainder vests subject to the payment of debts and legacies and subject to the exercise of the power to use and sell, but liable to be divested as to so much of the estate as may be disposed of for the payment of debts and legacies, and by the execution of the power. The remainder is not made contingent by uncertainty as to the amount of the estate remaining undisposed of at the expiration of the life estate, but by uncertainty as to the persons who are to take.” See also Heilman v. Heilman, 129 Ind. 59 ; Woodman v. Woodman, 89 Me. 128 ; Burleigh v. Clough, 52 N. H. 267, and other cases cited in 24 Am. & Eng. Ency. of Law, 389.

It is not necessary to go beyond our own decisions to find authorities on the subject, but the above quotation from Ducker v. Burnham , seems to be very apt. In Tayloe v. Mosher, supra, the testator, after making certain devises, bequests, and dispositions in favor of his wife and servants, devised his estate not otherwise specifically disposed of to trustees. He directed them to pay certain annuities, and then to invest “the clear income of my estate, if anything remain after the application annually or otherwise of the several sums of money hereinbefore charged thereon,” and provided: "Upon the death of my son William, I will and desire that a distribution of rtay-estate be made among all my grandchildren, to-Wit: - The children of my late son James Mosher, and the children of my aforesaid son William, provided any child he shall' leave. All my said grandchildren to take per capita.” The ¹⁴⁹ Court said: “It is doing no violence to this language or to any rule of law to hold that the children of James, who were in esse at the date of the will and of the testator’s death, took vested interests, liable to be divested pro tanto for the purpose of letting in for a share any child that William, who then had none, might, by possibility, have, and leave surviving him.

The fact that an estate is liable to be divested in whole or in part upon a continge?icy, does not make it a contingent estate. ” See also Dulany v. Middleton, 72 Md. 67 , for a similar decision. It would seem, then, to be clear that the reference to the estate “remaining at the death of my said wife” did not make the remainder contingent. But it is argued, and was so held by the learned Judge below, that the rest of this clause shows that, the interests left to the children were contingent — that their right to participate in the distribution of his estate was contingent upon their surviving the testator’s wife. But we cannot see how that clause indicates an intention on the part of the testator to create contingent remainders.

The wife might in her lifetime have given one child more than she gave another, and that child might have survived her mother, while the other who received very little might have died, without issue, before her mother. It would seem to be more in accordance with the intention of the testator, and more natural for him, to vest the. remainder in his children at his death. We have seen what confidence he had in his wife’s judgment and sense of justice, and he was willing for her to decide what was necessary to be expended for the support of herself and children, and for their education or advancement in life, He did not -direct that any charge should be made against- them for sums thus advanced in excess of what was given others, and, even if the remainder be treated as contingent, those thus favored might survive their mother and receive a share of the remaining property. The equality of distribution does not in any way depend upon whether the remainders were contingent or vested.

It is a familiar but important rule that the law favors the early vesting of estates, and .it.is likewise a well-recognized rule of con ¹⁵⁰ struction that in doubtful cases the interest should be deemed to be vested in the first instance, rather than contingent, unless the instrument under consideration does not admit of such construction. It cannot be doubted that Mr. Shriver did not intend to die intestate as to any part of his estate — he prefaced his will with the statement “subject to the payment of my debts and funeral expenses I dispose of all my estate in manner and form following.” Yet it was quite possible, although not probable, that all of the childeren by his second wife might have died without leaving issue before his wife died, and in that event there would have been an intestacy as to the remainder, if it must be regarded as contingent. The children provided for during the lifetime of his wife — “our children,” that is those of his second wife and himself — were the same who were referred to in the clause under consideration — “my children by my said wife.” Mrs. Reese was one of those children and left two children who would admittedly have been entitled to their mother’s share if they had survived their grandmother. The testator did not leave the remainder to such of his children as survived his wife, or to such children and grandchildren (children of a deceased child) as survived her.

He did make provision in that clause for the share and interest of a deceased child who had died leaving a child or children, but made none as to the share of a deceased