Sabit v. Safe Deposit & Trust Co.

Collins, J., delivered the opinion of the Court. Alfred J. Ulman, of Baltimore City, died testate on October 13, 1906, survived by his widow, Clementine H. Ulman; a son, Jacob Ulman, and four daughters, Bertha U. Walter, Valerie H. Arnold, Alberta Ulman Sabit, and Nanine H. Sabit. By his will executed on February 26, 1891, he devised and bequeathed his estate to his wife for life, she to receive four-ninths of the income and each child to receive one-ninth. The remainder after his wife’s death was de ²⁶ vised and bequeathed to his five children equally with a provision that the shares of any of his children who might be under thirty-five years of age and unmarried be held in trust.

By the first and only codicil to the will executed on April 12, 1904, the disposition of his estate after his widow’s death was revoked, and under the first, second, and third items of the codicil, after his wife’s death, a one-fifth share was left absolutely to his daughter, Bertha Ulman Walter; a one-fifth share absolutely to his daughter, Valerie H. Arnold, and a one-fifth share absolutely to his son, Jacob A. Ulman. Clementine H. Ulman, the widow, died on February 8, 1927, and three-fifths of the estate was distributed absolutely to these three children who are now deceased and survived by issue. Two-fifths of the estate was held in trust under the terms of the codicil for the daughters, Alberta U. Sabit and Nanine U. Sabit. The Safe Deposit & Trust Company of Baltimore, succeeding trustee under the will of the testator, being unable to determine the provisions of the fourth clause of the codicil, filed a bill of complaint in the Circuit Court for Baltimore City against all parties thought to have a possible interest in the estate, asking the Court to assume general jurisdiction of the trust and to construe the fourth clause of the codicil of the will.

The parties were brought in either by summons, acceptance of service, order of publication, answers filed by counsel, or by service of process on the Alien Property Custodian at Washington as some of the interested parties are enemy aliens. For a proper interpretation of the fourth clause of the codicil, it is necessary to quote it in full as follows: “In-trust to invest and to hold another fifth part and to collect the income therefrom arising and to pay the net amount thereof to my daughter, Alberta Ulman Sabit, wife of Aziz Sabit, for and during the term of her natural life, and from and after her death to divide the corpus of her fifth part into as many shares as she may leave children living at the time of her death, and to hold and ²⁷ to invest one each of such shares for each of her said children then living, in trust, as follows: In trust to collect the income from the share of each of her children, who may be living at the time of my death and to apply the net amount thereof, or so much thereof as the said trustees or the survivor may deem proper, to its maintenance, education and support until it shall have attained the age of twenty-one years and then to pay over to it any previously accrued income that may not have been so applied, and thereafter to collect and pay over to it the net income of its share for and during the term of its natural life, and from and after its death to convey transfer and pay over the corpus of its share to the then living child, or children, and the then living descendants of any then deceased child, of such child, per stirpes and not per capita, share and share alike. And in trust to collect the income from the share of each of her children, who may be born after my death and living at the time of her death and to apply the net amount thereof, or so much thereof as the said trustees or the survivor may think proper to its maintenance, education, and support until it shall have attained the age of twenty-one years, and then to convey, transfer and pay over the corpus of its share, with any undisposed of income to such child absolutely. “Should my said daughter, Alberta, die without leaving a child or children or descendants, then living, then I give, devise and bequeath her said one-fifth part to her sisters and brother then living and to the then living descendants of any of her then deceased sisters or brother per stirpes and not per capita share and share alike — the share thereof of my daughter, Nanine, or her child, children or descendants to be held by the said trustees upon the same trusts and subject to the same limitations as the fifth part hereinafter devised and bequeathed in trust for her. Should any child of said daughter, Alberta, living at the time of my death die without leaving any child, or children or descendants living at the time of its death, I give, devise and bequeath the share of such child so dying to the said trustees and the survivor and the heirs, ²⁸ executors, administrators and assigns of the survivor, in trust for such child’s surviving sisters and brothers, and the then living descendants of any then deceased brother or sister, upon the same trusts and subject to the same limitations as the share by this paragraph originally devised and bequeathed to them respectively, and should any such child die without leaving any child, children or descendants then living, then I give, devise and bequeath its share to my then surviving child or children, and the then living descendants of any of my then deceased children, per stirpes and not per capita share and share alike.

Should any of the children of my daughter, Alberta, born after my death die before attaining the age of twenty-one years, without leaving a child or descendant, I give, devise and bequeath its share to the said trustees and the survivor and the heirs, executors, administrators and assigns of the survivor in trust for its surviving brothers and sisters and the then living descendants of any then deceased brother or sister per stirpes and not per capita, share and share alike. And should any such child of my said daughter Alberta, born after my death die before attaining the age of twenty» one years, without leaving surviving any brothers or sisters or descendants of a brother or sister, then I give, devise and bequeath its share to my then surviving child or children and the then living descendants of any of my then deceased children per stirpes and not per capita, share and share alike.” (Italics supplied here.) Testimony was taken in the case. It is shown that at the time of the execution of the original will in 1891, the testator’s daughters, Alberta and Nanine, were unmarried and under thirty-five years of age. The daughter, Nanine, between the time of the execution of the will and that of the codicil, married Faid Sabit, an Egyptian.

She died on May 24, 1940, without issue. In accordance with the provision of the fifth item of the codicil, as to which there is no dispute, the corpus of the share held in trust for Nanine’s benefit was divided and distributed. A one-fourth part became a part of the corpus of the share ²⁹ held in trust for her sister, Alberta Ulman Sabit, under the fourth clause of the codicil of the will aforesaid. It also develops that between the dates of the execution of the original will and the codicil, the daughter, Alberta, married Aziz Sabit, an Egyptian.

By that marriage she had three children: A daughter, Aziza, who married a German national, Max von Scheidt; a son, Halil Sabit, and a daughter, Alya Sabit. Halil and Aziza were born before the death of the testator. The date of birth of Alya is not shown. She predeceased her mother, dying without issue.

Aziza von Scheidt, born about 1894, died about the year 1931, leaving surviving her two children, infants now under the age of twenty-one years, Halil Aziz von Scheidt, now about seventeen years of age, and Omar von Scheidt, now about fifteen years of age, German nationals, born after the death of the testator Halil Sabit, born about 1904, is now living, married with no children, and claims to be the sole beneficiary of the trust created for his mother, Alberta Ulman Sabit. At the hearing held by the Chancellor, the claim of Halil Sabit to an interest for life in all of the trust created for Alberta Ulman Sabit was presented by his counsel, and the conflicting claim of Halil Aziz von Scheidt and Omar von Scheidt to one-half the trust created for Alberta Ulman Sabit was presented by counsel appointed for them by the Court. The Chancellor decreed in effect that the trustee divide the residuary estate held in trust for Alberta Ulman Sabit into two equal parts, one part to be held in trust for Halil Sabit during his life under the provisions of the codicil and that the other of said two equal parts be held in trust by the plaintiff to transfer and convey the same, together with all net income therefrom, to the children of Aziza Sabit von Scheidt, deceased, daughter of Alberta Ulman Sabit, namely, the infant defendants, Halil Aziza von Scheidt and Omar von Scheidt, their heirs, executors, administrators and assigns or to such person or persons as may be legally entitled to receive the same under the Trading with the Enemy Act, 50 U. S. C. A. Appendix Sec. 1 Et ³⁰ Seq., as may be determined by subsequent order or decree of that Court. From that decree Halil Sabit appeals to this Court, claiming that he is entitled to a life estate in all of the trust now in dispute and not to one-half as decreed by the Chancellor.

Alberta Ulman Sabit, at the time of her death, was therefore survived by one son, Halil Sabit, and two grandsons, Halil Aziz von Scheidt and Omar von Scheidt, great grandchildren of the testator. The whole question in this case turns upon the provision in the codicil in which, after devising and bequeathing an equitable life estate to his daughter, Alberta Ulman Sabit, the testator ■ directs the trustee: “And from and after her death to divide the corpus of her fifth part into as many shares as she may leave children living at the time of her death.” (Italics supplied here.) It is apparent and admitted by appellees that as Alberta left only one child living at the time of her death, viz., Halil Sabit, he is entitled to the whole for life (he having been born before the testator’s death), and the two infant children of his sister, Aziza Sabit von Scheidt, who predeceased her mother, Alberta, would take nothing, if these words are literally construed. Appellees, however, contend that the words “living at the time of her death” mean, by what is known as stirpital construction, “living either personally or by representation through issue.” The doctrine of stirpital survivorship has been adopted in a number of cases by the English Courts and as far as we have been able to determine and from the excellent briefs submitted by the appellant and appellees, by only one Court in this country, that being in Kentucky in the case of Birney v. Richardson, 1837, 5 Dana 424 , 35 Ky. 424 . The Kentucky case seems to go much further than the English cases and as far as we have been able to determine, has not been followed in this country since it was decided over one hundred years ago.

This is a rule of construction by which the Courts, in order to carry out the intention of the testator interpret the word “survivor” to mean “other” or “surviving either in person or by ³¹ stocks.” Doe v. Wainewright, (1793), 5 Term. Rep., D. & E. 427; Waite v. Littlewood, [1872] L. R. 8 Ch. App. 70; Cooper v. MacDonald, [1873] L. R. 16 Eq. 258; Wake v. Varah, 1876, 2 Ch. D. 348; Lucena v. Lucena, 1877, 7 Ch.

D. 255; Curle’s Trustees v. Miller, [1922] Sess. Cas. (H. L. 15). In the case now before this Court, the words “then living” cannot possibly mean “other” because no children of Alberta had previously been mentioned or referred to.

Birney v. Richardson, supra; Wilmot v. Wilmot, 8 Ves. 10. Therefore under that doctrine, the limitation to “children living at the time of her death” must either be construed literally or to mean “children living either in person or by stocks at the time of her death.” An important difference between the instant case and those in which this doctrine has been applied in the English cases cited is that in those cases, the legatees whose survivors are to be determined have entered into possession or beneficial enjoyment of the legacy. The doctrine has then been applied in those cases to determine whether, when the legatee dies without issue, the surviving legatees shall take to the exclusion of issue of a predeceased legatee. In the case now bfore this Court, neither Aziza Sabit von Scheidt, the predeceased legatee, the mother of the survivors seeking to take, nor Halil Sabit nor anyone of that class ever entered into possession or enjoyment of the gift or a life estate therein.

In the instant case there is an intervening life estate, while in the English cases hereinbefore referred to in which this doctrine has been applied, there was no such intervening estate. The case of Cooper v. MacDonald, supra, is illustrative of this. In that case testator made a series of specific devises upon trust for each of his children for life, with remainder to the children of such tenant for life and the heirs of their respective bodies as tenants in common in tail, with cross remainders between them, and failing such issue of the tenant for life in trust for the testator’s other children equally, and the heirs of their respective bodies, as tenants in common, or if there should be only one of his said children “then living,” in trust for that child and ³² the heirs of his or her body. He afterwards gave a share of his residuary real and personal estate upon such trust as should correspond with those declared concerning his specifically devised estate, which gift was followed by a provision for the event of any child dying in the testator’s lifetime, leaving children.

All of the children in question survived the testator and entered into a beneficial enjoyment of the devise. One of the questions before the Court in that case was: What was the effect of the gift over of the personal estate in the event (which had happened) of the deaths of more than one of the tenants for life without having children? The Court held in that case that the general scheme of limitations in the will obliged it to adopt and prefer the construction to carry out the intent of the testator that “then living” be given a stirpital construction to include “all the stock which should be then living.” In the codicil before us, the framer did not use the word “survivor” in the clause to be interpreted, but the words “living at the time of her death” and so used as unmistakably to refer to Alberta’s death. In some of the English cases referred to, notably Cooper v. MacDonald, supra, this question was not equally clear.

This doctrine is adopted in all of these cases to carry out the interpreted intention of the testator. It is further urged that because there is in the fourth clause a later provision reading: “Should my said daughter, Alberta, die without leaving a child or children or descendants, then living, then I give, devise and bequeath her said one-fifth part to her sisters and brother then living and to the then living descendants of any of her then deceased sisters or brother per stirpes and not per