Safe Deposit & Trust Co. v. Hutton

Pattison, J., delivered the opinion of the Court. The appeal in this case is from an order of the Circuit Court No. 2 of Baltimore City, overruling a demurrer to the amended bill of complaint, filed by the appellee, Reginald W. Hutton, against the appellant, the Safe Deposit and Trust Company of Baltimore, trustee. The bill alleged the execution of a will by Celeste M. W. Hutton on the 21st day of June, 1919, and a codicil thereto on the 17th day of November, 1922, and in the bill are set out in full the fifth and seventh items of the will, and with it were filed, '*s parts thereof, copies of both the will and codicil. ⁵² Item five devised to testatrix’s son, Reginald W. Hntton, certain lands known as “Crimea” for life, with power to sell and convey the whole or any part thereof, with the written consent of the Safe Deposit and Trust Company, trustee: “my said son to retain the proceeds of said sale or sales, provided he shall then have reached the age of thirty-five years, otherwise, the proceeds -of said sale or sales are to- be retained by my trastee, hereinafter named, and held by said trustee upon the same trusts and for the same persons and purposes and subject to the same rights -and' poAvers of my said son in and over the same, principal and income, as are mentioned and declared respecting my son’s share of the rest and residue of my estate. “And from and after the death of my said son, I give and devise the above-mentioned lands known as ‘Crimea,’ or such part thereof -as may not have been sold and conAreyed by my said son during his lifetime, as hereinbefore authorized, to such persons or objects as my said son shall limit and appoint by his last will and testament executed according to- the laws of Maryland, after he -attains the age of thirty years, full power and authority being hereby given to him to make and execute such last will and» testament; and in case my said son does not exercise such power of appointment or in so far as his said will shall fail to operate upon said lands, then I give and devise the same -to- the -child, children and descendants of my said son living at the time of his death per stirpes and not per capita; and -should my said son die Avitho-ut descendants surviving him and without having exercised such power of aj>pointment or in so far as his will may fail to operate thereon, then I give and devise the same to his sisters and the children of a deceased sister then living per stirpes and not per capita Item seven devised and bequeathed all the rest and residue of testatrix’s property and estate to the Safe Deposit and Trust Company of Baltimore, in trust, and, of the net income therefrom, each o-f the testatrix’s two- daughters was to re ⁵³ ceive one-third for life, and her son Keginald W. Ilutton was. to receive one-third thereof “until the termination of the trusts hereinafter created and declared respecting my son’s share of the corpus.” To each of the daughters, power was. given to dispose of her interest by will and, upon her failure to exercise that power, provision was made for the disposition of her interest in said rest and residue of the estate. Then follows the provision as to the ultimate disposition of the son’s share in said rest and residue of the estate, which is as follows: “And I further will and direct that should my said son attain the age of thirty-five years, my said trustee may from time to time, after my said son reaches said age, pay over and deliver to him the remaining onethii*d of the corpus or principal of the trust estate as may then be in possession of my said trustee, or such part or parts thereof as my said son may from time to time, after he reaches said age of thirty-five years, in writing designate, and in further trust to pay over and deliver so much and such part of the said one-third of the corpus or principal of the trust estate as may not have been paid over to my said son after he arrives at the age of thirty-five years, as hereinbefore authorized, to and for the use of such person or persons and such purposes as he, my said son, may limit and appoint by his last will and testament, duly made and executed according to the laws of the State of Maryland, after he attains the age of thirty years, full power and authority being hereby given my said son to make and execute such last will and testament, should,, however, my said son depart this life leaving a child or children or descendants of a deceased child or children surviving him, then I will and direct that the whole or such part of said one-third of the corpus or principal of the trust estate, and in the hands or possession of my trustee at the death of my said son, and which may not be affected by his last will and testament executed as aforesaid, shall, upon the death of my said son, be ⁵⁴ paid over and delivered by my trustee free, clear and discharged of any and all trusts created by my will to the child or children and the descendants of a deceased child or children of my said son, who may survive him, per stirpes and not.per capita,, but should my said son depart this life without leaving a child or children or descendant of a deceased child or children surviving him, then I will and direct that the whole or such part of said one-third of the corpus or principal of the trust estate then remaining in the'hands or j>ossession of my trustee and which may not be affected by his last will and testament executed as aforesaid, shall, upon the death of my said son be paid over by my trastee, free, clear and discharged of any and all trusts created by my will, to his surviving sister 'and the descendants of a deceased sister per stirpes and not per capita. “And I do hereby will and direct that my trustee shall as soon as may be convenient after my death appraise and value my estate known as ‘Crimea/ together with the said lot on Franklin Turnpike Road and improvements formerly occupied as a toll gate house and my estate known as ‘Alexandroffsky’; whereupon my said trustee is hereby authorized, empowered and directed to deduct from and retain out of the share of my estate held in trust for my said son such sum as. may be the difference between one-third of the combined value so ascertained of ‘Crimea’ and said toll gate house property and ‘Alexandroffsky’ and the value so ascertained of ‘Crimea’ and said toll gate house property, and to that extent reduce the share of my residuary estate held in trust for my son as above set forth.

The amount so deducted from my son’s share of my residuary estate is to be retained by my trustee and held upon the same trusts and for the same persons and purposes and subject to the same rights and powers of my said daughters respectively in and over the same, principal and income, as are hereinbefore mentioned and declared respecting my daughter’s shares respectively of the rest and residue of my estate. ⁵⁵ Then followed the codicil, which is as follows: “Having recently sold to The Northwest Real Estate Company, for the sum of one hundred and eight thousand seven hundred and fifty dollars ($108,750) about eighty (80) acres of my lands * * * known as ‘Crimea,’ I hereby give and bequeath the sum of one hundred thousand dollars ($100,000) to my son Reginald W. Hutton absolutely upon his arrival at the age of thirty-five years, and should my son die before he reaches the age of thirty-five years, then said sum of one hundred thousand dollars ($100,000) is to be retained by my trustee named in my said will and held by said trustee upon the same trusts and for the same persons and purposes and subject to the same right and powers of my said son in and over the same, principal and income, as are mentioned and declared respecting my son’s share of the rest and residue of my estate.” The bill then alleged that Reginald W. Hutton arrived at the age of thirty-five years on the 29th day of June, 1929, and on the first day of July, thereafter, he made demand in wilting on the Safe Deposit and Trust Company, trustee, for “the transfer and delivery unto him of the corpus of the one-third of the rest and residue of the estate of his mother” so held in trust for his use and benefit. The demand so made was in the form of a letter from him addressed to the Safe Deposit and Trust Company, trustee, and is as follows: “Dear Sirs: “I hereby make demand upon you to pay over and deliver to me the entire one-third of the corpus or principal of the estate held by you as trustee for me under the will of my mother., Celeste M. W. Hutton, in accordance with the terms of the fourth paragraph of Item Seven of said will. “I attained the age of thirty-five on Saturday, June 29, 1929.” It is then alleged that the Safe Deposit and Trust Company, trustee, by letter, dated the 23rd day of July, 1929, ⁵⁶ refused to comply with such demand, a copy of which letter was filed with the bill and is as follows: “My Dear Mr. Hutton: “Your letter of July 1, 1929, making demand upon us as trustee under the will of your mother, Celeste M. W. Hutton, to pay over and deliver to you the entire one-third of the corpus or principal of the estate held by us as trustee for you and advising that yon attained thirty-five years of age on June 29, 1929, received. “In reply we beg to inform yon that we are advised by counsel that you have not the right to make such demand, but that your mother’s will confers upon this company as trustee a discretion to- be exercised by it as such trustee, and accordingly we cannot comply with your demand.” The prayer of the bill asked tbe court to construe tbe terms and provisions of tbe will and codicil with respect to the share of the rest and residue of the estate of Celeste M. W. Hutton, held in trust for the use and benefit of Reginald W. Hutton, ber son, and to “determine that there is no discretion vested in tbe trustee to witbold from” tbe plaintiff “after his arrival at the age of thirty-five years, and upon his written demand, any portion of the trust estate so held for his use and benefit.” The grounds of the demurrer to the bill, wbicb was overruled, were, first, that “it appears from tbe face of tbe bill of complaint that under tbe provisions of tbe last will and testament of Celeste M. W. Hutton” tbe “defendant is vested with a discretion to withhold or deliver the trust estate held by it for tbe benefit of tbe plaintiff to him free, clear and discharged of the trust created by said Last Will and Testament.” Second, that “the sisters of the plaintiff and their respective children are necessary parties and should, therefore, be made parties to this proceeding.” Tbe contention of tbe trustee that tbe delivery and transfer of the appellee’s share in said trust estate is subject to its discretion and not mandatory upon it, is, it seems, largely based upon what was said in tbe opinion of this court in ⁵⁷ Hutton v. Safe Deposit & Trust Co., 150 Md. 539; and, as stated by the appellant in its brief, the trustee was guided in its refusal to comply with the demand of the appellee, by what was there said. In Hutton v. Safe Deposit & Trust Company, supra, the court was asked to decide what effect was to be given to the legacy of $100,000 to her son, contained in the codicil, it being a part of $108,150, received by the testatrix for eighty acres of “Crimea,” devised to her son, and sold by her after the execution of the will, in ascertaining the owelty necessary to equalize the shares of Reginald W. Hutton and his sisters, as directed by the last paragraph of item seven of the will. As construed by the appellant, the language there used made it essential for Hutton to obtain the consent of the trustee before any part of his interest in said trust estate should be paid to him, the inference therefrom being that the trustee had the discretion to withhold from him payment of any part of said trust estate held for his use and benefit.

The language used from which the appellant reaches the above stated conclusion, is found in the herein italicized portions of that part of the opinion, in which it is said: “The codicil gives the $100,000 legacy to the son, absolutely upon his arrival at the age of thirty-five years, and then provides that if the son dies before he reaches the age of thirty-five, the $100,000 should be held by the trustee in the same manner as the son’s share of the rest and residue of the estate. It will thus be seen that the directions contained in the codicil in respect to the $100,000 legacy are identical with the provisions contained in the will in respect to “Crimea,” with the single exception that the son receives the $100,000, when he reaches thirty-five years of age, without having to obtain the consent of the trustee. In other words, if the testatrix had not sold any part of ‘Crimea’ after making the will, and the eighty acres had been sold by the son, after her death, it would have been necessary for him to get the consent of the trustee to make the sale, and the proceeds would have been held by the trustee until he became thirty-five years of age, at which time, upon application by him in writing to ⁵⁸ the trustee, it would have been turned over to him; while under the provisions of the codicil, the mother having made the sale during her lifetime, the approximate proceeds of said sale are placed in the hands of the trustee to be paid to the son upon his arrival at thirty-five years of age, without •making it necessary for the son to apply in writing for the consent of the trustee; the testatrix by the codicil, in effect, substituting her consent that it be paid over at the son’s arrival at the age of thirty-five, in the place of the trustee’s consent.” The language relied upon by the appellant in the conclusion reached by it must be considered with other parts of the opinion, with which it is connected and used. For instance, to ascertain what was meant by the court in saying “the son receives the $100,000 (legacy) when he reaches thirty-five years of age, without having to obtain the consent of the trustee,” we must consider it in the light of that which follows, where it is said: “In other words, if the testatrix had not sold any part of ‘Crimea,’ after making the will, and the eighty acres had been sold by the son after her death, it would have been necessary for him to get the consent of the trustee to make the sale and the proceeds would have been held by the trustee until he became thirty-five years of age, at which time, upon application by him in writing to the trustee, it would have been turned over to him.” This last clause of the opinion, we think, clearly shows that the “consent of the trustee” had reference to the sale of the property and not the transfer or payment of the appellee’s interest in the trust estate.

Following the clause of the opinion last quoted, it is said: “While under the provisions of the codicil, the mother having made the sale during her lifetime, the approximate proceeds of said sale are placed in the hands of the trustee to be paid to the son upon his arrival at thirty-five years of age, without making it necessary for the son to apply in writing for the consent of the trustee.” There is likewise no difficulty in ascertaining what was there meant in the use of the, words “consent of the trustee,” as the preceding words are explanatory of their meaning. The words simply mean ⁵⁹ that, as the mother had made the sale during her life, the son was relieved of the necessity of obtaining the consent of the trustee to sell as required by the will. We now come to' the concluding part of the paragraph immediately following the language above quoted, where it is said: “The testatrix by the codicil, in effect, substituting her consent that it he paid over at the son’s arrival at the age of thirty-five, in the place of the trustee’s consent.” This last expression may he misleading, and were it not for what had been previously said, it might he susceptible of tbe construction placed upon it by the appellant, hut. when these words are considered in connection with the preceding language of the paragraph, it will be shown that such was not the intended meaning of the court. The language of the will which we are asked to construe is, “and I further will and direct that should my said son attain the age of thirty-five years my said trustee may from time to time, after my said son reaches said age, pay over and deliver to him the remaining one-third of the corpus or principal of the trust estate, as may then be in possession of my said trustee or such part or parts thereof as my said son may from time to time, after reaching said age of thirty-five years in writing designate.” In construing the language used above, the entire will should he carefully examined and the language there employed, considered in the light of the circumstances surrounding its execution, in order that the testatrix’ meaning and intention in the use of such language may be ascertained, and wdien that is ascertained, the language used must be given the effect intended by her, if it is not inconsistent with some established or settled rule of law or of property.

Beall v. Holmes, 6 H. & J. 206; Berry v. Berry, 1 H. & J. 417; Dashiell v. Dashiell, 2 H. & G. 127; Douglas v. Blackford, 7 Md. 8; Smithers v. Hooper, 23 Md. 272 ; Young v. Twigg, 27 Md. 621;