Shipley v. Mercantile Trust & Deposit Co.

⁶⁵¹ Pearce, J., delivered the opinion of the Court. The record in this case is accompanied by numerous and elaborate briefs in behalf of the various parties in interest, but the principal question presented is a narrow one! The case originated in a bill filed in the Circuit Court of Baltimore City by the Mercantile Trust and Deposit Company of Baltimore, as trustee under the last will and testament of Charles Shipley, deceased, and by Stephen George Shipley, one of the beneficiaries under said will, against Ida R. Shipley, widow of Charles Shipley, in her individual capacity, and as executrix of the said Charles Shipley, and also against numerous other parties, beneficiaries under said will, praying the Court to assume jurisdiction over'the administration of the trusts created by the will, and over the exercise of the powers conferred thereby upon the Marcantile Trust and Deposit Company of Baltimore as trustee under said will, and particularly over the division of the rest and residue of the estate of said Charles Shipley, and to direct said trustee in the execution of said trusts and powers. The will and the three codicils thereto are very voluminous, covering fourteen pages of the printed record, and disposing' of a large estate — but it will be sufficient for the purposes of this case, to say, that after making certain bequests and devises which are not drawn in question here, the testator devised and bequeathed all the rest, residue and remainder of his estate to the said Mercantile Trust and Deposit Company in trust to divide the same equally into as many shares as he should have children living at his death, and children deceased, leaving issue at his death, such issue to represent per stirpes the shares of their .deceased parents, and to facilitate such division, authorized said trustee to sell such parts of said rest,, residue and remainder as it should deem necessary to effect such division.

He further directed that one of these equal shares should be conveyed and transferred by said trustee, “free and discharged from the trust (but subject to the' dower and thirds of my said wife in said rest, residue and remainder which said dower and thirds, as also like dower and thirds in all the other shares I hereby give, devise and be ⁶⁵² queath unto her), unto each of my children living at my death, other than to my daughter Mary R. Shiebler, 'my son Stephen George Shipley, my daughter Sarah N. Dulaney and my daughter Ruth Peregoy Hood.” The testator left surviving him the above-named four children, and also three other children, J. Lester Shipley, Mary B. Choate and Joseph D. Shipley, but no issue of deceased children, and the three last-named children, are provided for in the clause above quoted. By subsequent clauses in said will one other equal share of said rest and residue was devised and bequeathed “subject to the dower and thirds aforesaid of my said wife” to the said Mercantile Trust and Deposit Company in trust for each of the four children first above named. In the first codicil to said will, he made the following provision: “Whereas the Mercantile Trust and Deposit Company of Baltimore, will, as trustee, take the several parts of the residue of my estate, subject to the dower and thirds of my wife; if it shall so happen that she is willing to capitalize and convert her dower and thirds, and receive the value thereof according to the standards and valuations recognized by the Courts of equity in Maryland, either before or after the trustee makes the division of the residue of my estate. I authorize the Mercantile Trust and Deposit Company of Baltimore, as trustee, to make the division, or as trustee under said several trusts, to agree with her for such capitalization, and to set apart property real or personal, or both, equal at a valuation to be fixed by said company, with her consent, to her capitalized dower and thirds in such portion, and to assign, convey and deliver the same to her as her absolute property, or I authorize said company to sell any parts of the trust property, and provide money to pay her the said capitalized value of her dower and thirds, or to arrange with her by payment of part in money and part by conveyance of real or personal property, or both, as may be deemed advisable.” The bill alleged that no agreement had been effected between the trustee and the widow for the capitalization of her dower and thirds as authorized by said codicil, and “that in order to make any of ⁶⁵³ the rest and residue of the testator’s estate marketable, it was necessary to relieve said rest and residue, from her claim for dower and thirds, by the exercise of said power, or by having the same set off to her in the manner provided by law, which the plaintiffs are advised can be done in these proceedings.” The bill then specifically prayed “that the rest and residue of the estate of the testator may be disembarrassed of the dower and thirds of his widow, the said Ida R. Shipley, either by the exercise of the power conferred upon the Mercantile Trust and Deposit Company of Baltimore for that purpose, or by setting off the same to her as provided by law.” The material part of the answer of Ida R. Shipley to the plaintiffs bill will appear from the following extracts from said answer: “And in further answer to the said fourth paragraph she says, that it is plain that each share of the rest, residue and remainder of his estate, when divided, shall be conveyed and transferred by the trustee, free, clear and discharged of her dower and thirds unto certain of the children in the said will mentioned; but that he gives, devises and bequeaths by his said will in each and every one of the shares of the rest, residue and remainder, the dower and thirds of this respondent, Ida R. Shipley, wife of the testator.

That she claims it is the duty of the trustee and all interested in the said estate, to have a true construction of the said will, as to the meaning of the words ‘dower and thirds’ of his estate, which words this respondent affirms are often explained to her by her late husband, as meaning one-third of the whole rest, residue and remainder of his estate, and she invokes the action of this Court, most respectfully in that regard. Moreover she insists, before any other administration of the estate, it is the duty of the trustee to value the said several parts of the residue of the testator’s estate, and to capitalize and convey to her said 'dower and thirds,’ and to agree with her for such capitalization and to set apart property, real, personal or’both, equal, to a valuation to be fixed by said company and with her consent, to her capitalized ‘dower and thirds’ in said portion, and ⁶⁵⁴ to assign, convey and deliver the same to her, as her absolute •property, or to make an agreement with her for such capitalized value of her ‘dower and thirds’ upon the terms set forth in said will.” 5th. That in answer to the fifth paragraph no effort has been made to enter into an agreement to pay or satisfy this respondent in regard to the “dower and thirds” claimed under the will of her late husband, for the reason that there has been no offer of an agreement between the trustee and herself in regard to the meaning of words “dower and thirds” in the will, as she understands them. 7th- That this respondent believes that the statement of paragraph seven in regard to persons interested under said will are truly stated in the said bill of complaint. That she assents to the assumption by this Court of jurisdiction over the administration of the trust by the said Mercantile Trust and Deposit Company of Baltimore.

That she is ready and willing, when a proper construction is made by this Court of the words in the will of “dower and thirds” to this respondent in the rest and residue of his estate, to consent to the disembarrassment of the rest and residue of the estate of the said testator of the said “dower and thirds” of this respondent. That she denies the right of the trustee to petition for a sale, free of her dower, of the said lots described in the third bill of complaint, because she claims a “dower and thirds” in the whole rest and residue, meaning one absolute third of the whole of said property. And now having answered all the allegations in the bill she prays to be hence dismissed with her reasonable costs, &c. Ida R. Shipley, Defendant.

The Court assumed jurisdiction over the administration of the trusts by decree reserving for further consideration all other relief sought by the bill. A subsequent decree was also passed, under an agreement of the parties for the sale of certain portions of the property, and this also reserved for future determination all questions ⁶⁵⁵ concerning the manner of relieving the testator’s estate from the widow’s dower and thirds, and all questions raised by her. concerning the true interpretation of the expression, “dower and thirds,” employed in the will and codicils. Testimony was taken in behalf of the widow’s contention, and after hearing, Judge Harlan passed the following decree from which this appeal is taken : Decree. Fd. 27th September, 1905.

This cause coming on for a further hearing was argued by counsel for the respective parties, ar.d the pleadings and evidence and the exceptions filed thereto having'been read and considered by this Court: It is thereupon adjudged, ordered and decreed by the Circuit Court of Baltimore City this 27th day of September, 1905, that all the exceptions filed to the admission in evidence of the testimony of Mary C. Burwell and Ida R. Shipley, filed in this cause be and the same are hereby sustained. And it is further adjudged, ordered and decreed that by the true construction of the said last will and testament and codicils, the said testator employed the expression “Dower and thirds” in its ordinary technical sense, and that by virtue thereof the said Ida R. Shipley is entitled to an estate for her life, and not absolutely in one-third of all the real estates of inheritance of the testator embraced in the rest and residue of his estate, excepting that described and devised in and by the second item of the third codicil, and the ground rents and reversions mentioned and devised in and by the third item of said third codicil to the said trustee in trust for her for her life; and that she is entitled absolutely to one-third in value of all the personal estate of the testator embraced in the rest and residue of his estate, which shall remain after the payment of his just claims against hifn, excepting the sub-reversions, stocks and bonds, bequeathed by the third item of the third' codicil to the said trustee in trust for her for her life. And it is further adjudged, ordered and decreed that by the said provision for capitalizing and converting said dower and thirds with the consent of the said Ida R. Shipley, it was the intention of the testator if she should consent to the capitalization and conversion thereof, either before or after the division of the rest and residue of the testator’s estate (and if the trustee should determine to exercise the powers conferred upon it in ⁶⁵⁶ connection therewith), that the real and personal estate respectively in which she would be entitled to the dower and thirds to be capitalized and converted, should be valued separately by the said trustee, with her consent, and that she should be entitled to receive as her absolute estate, in lieu of dower in said real estate, not more than one-seventh nor less than one-tenth of the said value of said real estate, according to her age, health and condition; and that the said trustee should have power to pay to her the capitalized value of her dower, so ascertained, in money or in property, real or personal, or partly in money and partly in property, and if paid to her in whole or in part in property, that said property should be taken by her at a valuation to be agreed upon between her and said trustee, and that she should be entitled to receive, as her absolute property, in satisfaction of her thirds in said personal estate, one-third in value of said personal property to be paid to her in like manner, in money or in property, real or personal, or partly in money and partly in property, and that for the purpose of effecting said capitalization and conversion and payment, the said trustee should have the power to sell and convey free of dower and thirds any of the real and personal estate of the testator in which the said Ida R. Shipley should be entitled to dower and thirds. Henry D. Harlan.

The cardinal question in the case is the meaning of the words, “dower and thirds” as used by the testator in the 2nd clause of the 7th item of the will, and in the first and third codicils; the appellees claiming that they were employed in their ordinary technical sense, and that Mrs. Shipley was entitled under the terms of the will and codicils to a life estate in one-third of the residuary real estate, and to one-third of the residuary personal estate absolutely, excepting the residuary real and