Safe D. T. Co. of Balto. v. Carey

Briscoe, J., delivered the opinion of the Court. The bill in this case is filed by the plaintiff, individually and as executor of the will of Anna King Carey, his deceased wife, for a mandatory injunction to compel the defendant, the Safe Deposit and Trust Company of Baltimore, to transfer twenty shares of its stock, now standing in the name of “James Carey, Jr., for life, with remainder over, according to the terms of the will of Anna King Carey” to. him, in his individual name, absolutely. The questions for our consideration are presented by a demurrer to the bill, interposed by the defendant company and the other defendants, who- were by an amendment, made parties defendants to the original bill. Mrs. Carey, the testatrix, died on March 25th, 1908, and her will dated the 10th day of August, 1907, was duly admitted to probate, in the Orphans’ Court of Baltimore City.

She left surviving her, the plaintiff, her husband, and one child, Frances King Carey, and this daughter died on the 24th of July, 1912, unmarried, intestate and without issue. By the eighth clause of the will, the one with which we are here concerned, she left and gave all the rest, residue and remainder of her estate, real and personal, wherever situated, to her husband for and during the term of his natural life, with certain power to sell for change of investments of for division of property, as set out therein. She then provided, as follows: From and immediately after the death of my said husband, I give and bequeath all of my personal estate (except leasehold estate) including the proceeds' of any sales of real or leasehold estate made by my said husband during his lifetime and re-invested in personal property (not leasehold estate), to my said daughter, Frances King Carey, absolutely, if she be living at the time of my said husband’s death, ⁵⁹⁵ and, in case she shall die before my said husband, then to her children or descendants, the descendants of any deceased child to take per stirpes and not per capita, and in default of any children or descendants, then to the next of kin of my said daughter. By the same clause of the will she also disposed of the interests in remainder in the real and leasehold property, but as this latter provision of the will does not reflect upon the clause just quoted and here in question, it will not be set out by us.

It is contended upon the part of the appellee, the plaintiff below, that upon the death of the daughter, Frances King Carey, unmarried, intestate and without issue, all of the personal estate, except leasehold estate, which had been distributed to him, for life with remainder over, under the testatrix’s will, became vested in him absolutely, as the father and sole next, of kin of his daughter. In other words, that the next of kin pf the daughter, under a proper construction of the will, are the next of kin living at the time of her death. And under the laws of distribution in this State, Code, Art. 93, sec. 126, the father would be entitled to the whole of the personal property of the intestate; Chester Hospital v. Hayden, 83 Md. 114 ; Schaub v. Griffin, 84 Md. 563 ; Art. 93, sec. 126, Code, P. G. Laws. On the other hand the appellants, the defendants below, insist that the testatrix meant that those persons who will be the next of kin of the daughter, at the termination of the husband’s life estate, upon his death, will become entitled to the stock here in controversy, and not the plaintiff.

The Court below overruled the defendants’ demurrer, with leave to answer the bill and from this order, an appeal has been taken. We cannot concur in the contention of the appellee, in this case, nor with the construction placed upon the eighth item of Mrs. Carey’s will, by the Court below. By the plain terms of the will she gave her husband a life estate in the property, and from and immediately after the ⁵⁹⁶ death of her husband to her daughter absolutely, if she be living at the time of her husband’s death and if not then to her