Tarbert v. Rollins

Thomas, J., delivered the opinion of the Court. On the 6th of September, 1908, Miss Maggie V. Hugg, of Baltimore City, died, leaving a last will and testament, and a codicil thereto, by which she disposed of her entire estate, consisting of real and personal property, valued, according to the statement of counsel, at about $800,000.00. The will contains numerous items of bequests and devises to relatives and friends and for charitable purposes, amounting to considerable over $100,000.00, and the rest and residue of the testatrix’s estate is devised and bequeathed to her cousin, William S. Thomas., of Baltimore City. The testatrix left as her only next of kin and heirs at law the following first cousins on the side of her mother, viz: Mrs. Mary O. Tarbert and her brothers and sisters, J. William Strobe!, Albert P. Strobel, Edgar R. Strobe!, Mrs. Barbara S. Winks, Mrs. Helen S'.

Jacobs and Mrs. Nellie E. Clair, representing one branch of the family, and Mrs. ⁴¹⁵ Azalia Thomas, mother of William S. Thomas, representing another branch, and a number of second cousins on the side of her father. Counsel for the appellants and appellees agree that if Miss Hugg had died intestate her first cousins on her mother’s side would have taken each one-eighth of her personal estate, and that her real estate, valued at about $200,000.00, would have passed to her second cousins on the part of her father'. Caveats were filed to the will and codicil by J. William Strobel, one of the maternal first cousins, and by William S. Hugg and others, her paternal second cousins, and issues were sent to the Superior Court of Baltimore City for trial. The case came to trial on the 27th of October, 1909, and on the following day, according to the docket entries, “on account of sickness of a juror the jury was discharged and the case passed.” Thereafter, on the 22nd day of December, 1909, William S. Thomas, the caveatee and the residuary legatee and devisee and executor under the will, and the first cousins of the testatrix on her mother’s side entered into the following agreement: “This Agreement, Made this 22nd day of December, in the year one thousand, nine hundred and nine, by and between William S. Thomas, party of the first part, and J. Wm Strobel and ft.

Lee Strobel, his wife; Albert P. Strobel and Harriet G-. Strobel, his wife; Edgar R. Strobel and Mary G-. Strobel, his wife; Barbara 8. Winks and William M. Winks, her husband; Mary 0.

Tarbert and Upton H. Tarbert, her husband; Helen S. Jacobs and Horace L. Jacobs, her husband, and Nellie E. Clair and Lamuel Clair, her husband, parties of the second part: “Whereas, the parties of the second part are contesting the validity of the papers offered for probate as the last will and testament and the codicil thereto of Maggie Y. Hugg. “And whereas, The party of the first part does declare that the said paper writing offered for probate ⁴¹⁶ as the last will and testament and codicil of Maggie Y. Hugg are valid in every respect. “And whereas, The party of the first part is residuary legatee, devisee and executor under said papers, and all of the parties hereto are desirous of terminating any and all litigation in regard to the validity of said papers and of agreeing upon the terms of a division of her estate in any event. “Now, therefore, in consideration of the mutual promises and agreements each made with the other, and as accord and satisfaction of their differences regarding the disposition of the property of the late Maggie Y. Hugg. deceased, the parties hereto agree as follows: “1. That all of the parties hereto will co-operate in having the validity of said will and codicil of Maggie Y. Hugg and all legacies and devises therein made, sustained and confirmed in every particular, and especially the legacy and devise made to William S. Thomas and Thornton Rollins, trustees, of the sum of fifty thousand dollars ($50,000), and the farm at or near Sykesville, in Howard and Carroll Counties, Maryland, and the legacies and other devise made to Zaidee T. Thomas (the devise being of a house and lot known as No. 1302 Eutaw Place, Baltimore, Maryland), all of which said William S. Thomas, as residu¿ry legatee, will confirm by appropriate deeds. “2. The party of the first part is to be allowed by the 'Orphans’ Court of Baltimore City and paid the usual commissions as administrator pendente lite, and upon the confirmation of the will and codicil, Albert P. Strobel shall be joined with the party of the first part in letters of administration d. b. n. c. t. a., to be granted to them, and commissions shall be allowed and paid as the Orphans’ Court may think proper, provided that the total both for administration pendente lite and d. b. n. c. t. a. shall be the sum of twelve thousand dollars ($12,000), and any amount above this be waived; and the said commissions shall be so ⁴¹⁷ allowed that Albert P. Strobel shall be paid twenty-five hundred dollars ($2,500) net as his portion of the commissions, and William S. Thomas will receive the balance for his services for acting as administrator. “3. It is further agreed, That William S. Thomas and Albert P. Strobel will be appointed administrators d. b. n. of the estate of any of the deceased brothers and sisters of the late Maggie Y. TIugg where administration is necessary, and that the costs thereof will be charged to the general estate and paid there-out before the distribution herein made. “4.

The party of the first part shall be allowed in the accounts to be passed in the estate of Maggie V. TIugg, deceased, all moneys paid out by him in settlement of any debts duo by the deceased or contracted or paid out by him in burial or other expenses, and shall also be allowed such sums as have been contracted or paid out by him or for which he would be liable as administrator, whether contracted, paid, or the liability arises in connection with the real or personal estate of the deceased; he shall also be paid commissions for acting with Thornton Eollins as trustee of the real estate as may be allowed by order of the court for services already performed or to be performed, the court expenses and counsel fee to be fixed by court; there shall also be paid out of the estate the court costs in the courts of Baltimore City incurred in connection with the said estate. “5. The party of the first part is authorized to negotiate the best settlement possible with all the Hugg heirs on the paternal side, and is to turn over to them such an amount of money or such property of the estate as may be necessary in his judgment to effect a full settlement with them; such money or property to be charged one-half against the party of the first part and one-half against the parties of the second part in making the final division of the estate hereinafter set forth, or in his judgment he may contest the caveats filed to the said will and codicil. ⁴¹⁸ “6. After making all the payments hereinbefore mentioned, and excluding the property mentioned in said will and codicil, the balance of the estate passing to the party of the first part under the residuary clause,'if the will be sustained, or if not then in any event is to be divided one-half to the party of the first part and one-fourteenth each to J. William Strobel, Albert P. Strobel, Edgar' R. Strobel, Barbara S. Winks, Mary 0. Tarbert, Helen S. Jacobs and Nellie 0.

Clair, parties of the second part. “7. In the event of a failure to effect a settlement with other claimants not parties hereto, it ’ is understood that such failure shall not in any way affect the settlement hereby agreed upon between the parties hereto, and in such case whether, as a result of a contest with such other claimants, the said will and codicil be sustained or held invalid, in either case out of the' amount received by any of the parties hereto, whether as legatee or as heir-at-law or next of kin, as the case may be, the same distribution and settlement shall be made between the parties hereto as agreed upon, upon the assumption that the will shall be sustained, the settlement in such event so made with the party of the first part to be considered as including the interest of Azalia H. Thomas, with whom the party of the first part will make settlement out of one-half of said estate transferred to him. “8. It is agreed that for purposes of the adjustment to be made between the parties hereto, the estate of Maggie Y. Hugg, deceased, shall be construed as including all property of every kind, real or personal, of which she was seized or possessed, or to which she was entitled, including all property of every kind to which the said Maggie Y. Hugg, deceased', became in any way entitled by or through her deceased brothers and sisters, whether reduced to legal title and possession by her in her lifetime or not, especially in-' eluding all property in which the said Maggie Y. Hugg had a life interest, with undisposed remainder ⁴¹⁹ or reversion in the heirs of her mother, or any of her ancestors or collateral relations, whether the said remainder or reversion be vested in the said Maggie V. Hugg so as technically to pass under her will or not. “9. It is further understood and agreed that the parties of the second part do hereby jointly and severally agree to indemnify and save harmless the said party of the first part, his heirs, personal representatives and assigns to the extent of the net value of the estate transferred or passed to them by the said William S. Thomas against one-half the amount of any claims or demands that may be made upon him or them from any source, as residuary devisee or legatee under said will and codicil of the late Maggie V. Hugg, and do jointly and severally agree to unite with him in the defense of any such claim or demands and bear one-half the expense of resisting the same. “10.

In the event that any of the bequests under the said will should not be accepted, then the same are to be treated as part of the residuary estate. “11., It is agreed that the parties hereto shall pay their respective counsel for all fees and expenses incurred in their behalf up to the time of the signing of this agreement. “In testimony whereof, The parties hereto have hereunto signed and sealed this agreement the day and year first above written. J. Wm. Strobel. (Seal) Albert C. Strobel, (Seal) Attys. for Brothers and Sisters.

Wm. S. Thomas. (Seal).” On the clay the above agreement was executed, a jury was impanelled in the Superior Court of Baltimore City and rendered a verdict sustaining the will and codicil. The record was sent to the Orphans’ Court, and on the following day.

December 23rd, 1909, the Orphans’ Oourt admitted the will and codicil to probate', and at the request of William S. ⁴²⁰ Thomas, made in pursuance of said agreement, letters of administration c. t. a. were granted to- him and Albert P. Strobel. It also appears from the bill, answer and record in this case that William S. Thomas, in pursuance of the agreer ment, settled with all the paternal heirs of Miss Hugg, who, in consideration of the payment to them of the aggregate sum of fifty thousand dollars, conveyed and assigned to him by deed all their interest in the estate of the testatrix; that all of the legacies provided in the wall were paid, and all the property devised and bequeathed, except the property devised in paragraphs 16 and ll of the will, wias disposed of as therein provided, and the -entire balance of the- estate, including the proceeds of sale of the two properties referred to in paragraphs 16 and 11 of the will, which the devisees refused to accept because of certain conditions attached to the devises, was distributed by the administrators, in accordance with the terms of said agreement, one-half thereof to Mrs. Tarbert and her brothers and sisters and the other half to William S. Thomas. One of the items of the will, and the one to which this controversy relates, is as follows: “Item No. 14—I give and devise unto Thornton Rollins and William S. Thomas as trustee and the survivor of them, the heirs, administrators and assigns of the survivors the farm in the State of Maryland located in Howard and Carroll Counties and formerly belonging to my brother Marion, also the sum of fifty thousand dollars, in special confidence nevertheless, and to, for and upon the following uses and purposes, to wit: In trust to use the income arising therefrom after investing the same, in creating and maintaining in Howard County a home for orphan children, the said home to be known as the ‘Hugg Home,’ in memory of my sisters and brothers, and with full power to them and their successors in the trust to regulate the institution in every way possible, and also with full power to change the investments in which any of the trust funds may be invested, provided the same is ⁴²¹ reinvested on the same trusts as are herein declared, without it being obligatory in the purchaser or purchasers to see to the application of the proceeds of the purchase money. In memory of my deceased brothers and sisters.” In August, 1915, Mm Mary 0.

Tarbert and her husband filed a bill of complaint in the 'Circuit Court No-. 2 of Baltimore City against William S. Thomas and Thornton Rollins, trustees, William. S. Thomas individually, the administrators c. t. a., the other maternal first cousins; the paternal second cousins and the unknown heirs of the testatrix, in which, they allege, in addition to the matters we have stated, that the devise and bequest mentioned in paragraph 14 of the will are “wholly void and of no effect,”