Sollers v. Mercantile-Safe Deposit & Trust Co.

⁶⁰⁸ SlNGLEY, J., delivered the opinion of the Court. This case poses a narrow question: in making a stirpital distribution of the remainder of a testamentary trust among the decendants of the persons who had received the income for life, are the stirpes, or stocks, to be found among those who had the equitable life estates,' or among the remaindermen, who are the first takers ? Albert Brown died domiciled in Baltimore in 1963. By the terms of his will, drawn in 1927, after making provision for his wife (who did not survive him) and his descendants (he had none) the residue of his estate was to be held by Safe Deposit and Trust Company, now Mercantile-Safe Deposit and Trust Company (the Mercantile), as trustee, subject to the limitation: “If, however, there are no descendants of mine surviving at the death of my said wife, the said Trustee shall continue to hold the said estate until the death of the last survivor of my brothers and sisters, and in the meantime it shall pay the net income therefrom equally to such of my brothers and sisters as shall be living from time to time as the income is payable, and upon the death of the last survivor of them, the said Trustee shall distribute the trust estate then in its hands absolutely to the then living descendants of my brothers and sisters, in such manner that the children and descendants of deceased children of each of my brothers and sisters shall receive, per stirpes, one equal share of the said estate.” Albert Brown had three brothers and three sisters, all of whom predeceased him except his brother Howard, who was the sole income'-beneficiary until his death in June of 1969.

Some time thereafter, the Mercantile filed a bill in equity in the Circuit Courí of Baltimore City seeking a construction of the will. After stating the ⁶⁰⁹ facts, the bill recited that the will was susceptible of two possible constructions. If the stirpes, for purposes of distribution, were to be found among the brothers and sisters of Albert Brown, the remainder would initially be divided into six parts, each of which would then be distributed in equal shares among the then living children of a deceased brother or sister, as the case might be, the child or children of any deceased nephew or niece taking the parent’s share. Alternatively, if the stirpes were to be found among the children of the brothers and sisters, the remainder would be divided into 22 equal parts, one of which would be paid to each of the 20 living nephews and nieces, the remaining two parts being distributed to children of a deceased nephew, on the one hand, and the children of a deceased niece, on the other.

From a decree directing that the remainder interest initially be divided into six parts for purposes of distribution, the children of Mr. Brown’s deceased sister, Laura Brown Garrish, and the descendants of her deceased child have appealed. Until relatively recently, the Maryland decisions which identified the stocks for the purposes of stirpital distributions were neither as precise nor as consistent as- one might have wished. The earlier cases found the stirpes among the first takers; the more recent ones, among the ancestors of those who took. A discussion of the decisions which