Vestry of Emmanuel Church v. Safe Deposit & Trust Co.

Bond, C. J., delivered the opinion of the Court. A shrinking in the amount of property owned by a testatrix and property over which she had a power of testamentary appointment has made it impossible under existing conditions to satisfy the devises and bequests by her, and raised questions of relative position of the beneficiaries and the incidence of the loss. The Safe Deposit & Trust Company, trustee under the will which created the power and executor under the second will, has sought instructions from the court of equity, and the present appeals have been taken, by parties affected, from rulings in the decree. Miss Mary Bowie Dulin, of Baltimore City, dying in 1917, left by her will property known as 200 and 202 East Pratt street in that city, and all the residue of her estate besides, to the Safe Deposit & Trust Company in trust to pay the income to her sister, Mrs. Louise D. Henry, during her life, gave Mrs. Henry a power of testamentary appointment over the remainder, and provided that property not disposed of by her under the power should be held in trust for the benefit of devisees and legatees specified by Miss Dulin herself, as follows: First, she directed that the Pratt street property, if not disposed of by Mrs. Henry, should go to their cousin, Louise Reifsnider Creecy, her heirs and assigns, absolutely and free of the trust; ³¹ Second, out of the remaining property she provided that securities or property of $10,000 in value should be set apart and held in trust to pay the income to Margaret Bolling Henry (now Mrs. Donoho) until she should attain the age of 18 years, when she should receive the property absolutely, free of the trust.

Mrs. Donoho attained that age before the death of Mrs. Henry. Then out of any that might still remain, after Mrs. Donoho’s portion should be so set apart or paid over, two portions, each of $10,000 in value, were to be set apart to pay the income from each to Virginia Davidson and Leila Way, respectively, during life, with remainders, free of the trusts, to specified religious corporations not concerned in this case. These last two trust funds were to abate together, pro rata, in case of an insufficiency of assets to pay them. Mrs. Henry, dying 15 years later, in 1932, a widow without children or descendants, left a will divided into four main parts, with these in turn divided into numbered items or paragraphs.

The first, without relevancy in the case, bequeathed property received from her husband’s estate and kept distinct by his widow. The second part contained provisions with regard to the property of Miss Dulin, over which the testatrix had the power of appointment. With some corporate names abbreviated and figures only used for sums of money, the relevant items or paragraphs are these: Part II. “1. * * * In the exercise of the power so given to me I will and direct that after my death said Trustee shall pay and set apart out of the principal of the estate so held by it, in addition to the specific and pecuniary devises and legacies absolute and in trust which my sister’s will directs be paid and set apart out of said trust fund, the following legacies and trust funds, viz: “To Josephine Anderson, (my maid), $1,000. “To Elting F. Riefsnider, $1,000. “To the Home for the Aged and Orphans of the Bal ³² timore Conference of the Methodist Episcopal Church, etc., $5,000. “To the Safe Deposit and Trust Company of Baltimore the sum of $10,000 in trust to pay the net income therefrom to Leila Way during her life and upon her death the trust shall cease and the principal shall be paid over absolutely to my residuary legatees, viz.: Scarritt College, Vestry of Emmanuel Church, and the Home for Incurables of Baltimore City. “To the Safe Deposit and Trust Company of Baltimore such sum as in its judgment is sufficient to produce a clear annual income of $1,200 in trust to pay, accounting from my death in equal monthly instalments, to my butler, James W. Nichols, during his life $900 per annum, and to my chauffeur, Nevitt Roberts, during his life $300 per annum, and upon the death of the first thereof to die to distribute so much of said trust fund as in its opinion it may deem proper, and upon the death of the survivor to distribute the whole of the trust fund then in its hands equally among my said residuary legatees.” A codicil increased the butler’s annuity to $1,200. “2. Said Trustee shall also pay out of the principal of the residue of my sister’s estate the inheritance taxes upon the legacies left by the preceding item and also the inheritance taxes upon the legacies and devises made lay my said sister’s Will after my death. “3.

The Residue of said trust fund held under my said sister’s will after the satisfaction of the specific gifts and devises made therein effective after my death and the specific gifts thereof herein made, absolute and in trust, (the trust fund which would have been set aside for Miss Virginia Davidson had she survived being payable at my death to the remaindermen named therein) her residuary legatee having died some years ago, I give in equal shares to Scarritt College, Emmanuel Protestant Episcopal Church and the Home for Incurables of Baltimore City.” Part III relates to property not concerned in these appeals. Part IV disposes of the property of the testatrix ³³ herself, as distinguished from any appointed property. It includes numerous legacies, none of which need be specified here, except items numbered 8 and 9, as follows: “8. I give, devise and bequeath all of the rest, residue and remainder of my estate and all property and estate over which I have or may have any power of testamentary disposition except as herein specifically given or appointed, in equal shares to Scarritt College, Vestry of Emmanuel Protestant Episcopal Church, and the Home for Incurables of Baltimore City. “9.

I will and direct that any inheritance or succession taxes upon the legacies or devises given by the preceding items of this Will, or upon any beneficial interest therein, the payment of which is not hereinbefore provided for, shall be paid by my Executor out of my residuary estate, so that the respective legatees and devisees thereof will receive the said legacies and devises free of such tax.” The codicil to Mrs. Henry’s will, executed December 10th, 1930, contains the following relevant provision: “By Paragraph 3, Part 2, of my Will I give the residue of the estate of my sister, Mary Bowie Dulin, as therein set forth and I do now hereby further provide that should my own absolute estate which is disposed of by Part 4 of my Will be insufficient to pay the legacies therein and herein provided for then any deficiency therein shall be paid out of the estate of my said sister, Mary Bowie Dulin.” The first questions, in the order of argument, are those of the positions of the remainders in the trusts of the appointed property for the benefit of Leila Way, the butler, and the chauffeur during their lives. Does Mrs. Henry’s provision that upon the death of Leila Way the trust shall cease, “and the principal shall be paid over absolutely to my residuary legatees, viz:” the three corporations, bequeath the principal to them as specific legatees, or does it mean that they shall take the principal only as part of the residuary estate, if, not being absorbed in the payment of general pecuniary legacies, the principal survives and forms part of that residuary estate? ³⁴ And does the accompanying provision that, after the deaths of the butler or the chauffeur, or both, the trustees shall distribute a proper proportion or the whole of their trust fund, “equally among my said residuary legatees,” bequeath the fund to the said legatees specifically, or only as part of the residuary estate if it survives payment of the other legacies? The two provisions are similar. In the first, the names of the three corporations are explanatory, identifying the residuary legatees, “viz: Scarritt College, etc.” In the second, this is put in the ordinary manner of repetition: “My said residuary legatees.” “It would be a strange interpretation of a will to give directly opposite constructions to the same words in two sentences standing in juxtaposition, and both relating to personalty, and when the second, in its concluding language, makes direct reference to the first.” Woodland v. Wallis, 6 Md. 151, 167 .

Miller, Construction of Wills, sec. 25. The lower court concluded that the funds were meant to fall into the residuary estate, and to- come to the legatees, if at all, only after satisfaction of the other legacies. “The remainder will pass to the said institutions,” the decree is, “in their capacities as residuary legatees of the residue of the appointed property under the will of Louise D. Henry, and consequently said residuary legatees can take no benefit therefrom unless and until all general pecuniary legacies payable out of the Estate of the said Mary Bowie Dulin, deceased. * * * including the legacies of the deficiencies of the legacies bequeathed in Part IV of the will of Louise D. Henry, deceased, have been paid in full, together with interest thereon as hereinafter specified, and the collateral inheritance tax thereon.” As the parties all agree, it is plain that the testatrix, Mrs. Henry, planned her gifts without contemplating the possibility of reduction in the amount of her sister’s property over which she had the power of appointment, or at least without contemplating thé possibility of its reduc ³⁵ tion below the point of sufficiency for payment of all legacies. On the contrary, in her confidence in its