Weller v. Sokol

Singley, J., delivered the opinion of the Court. This case combines a number of appeals from a decree of the Circuit Court of Baltimore City which construed the will of the late Arthur Nattans (Arthur Nattans I). While the ⁴²² appeal was originally taken to the Court of Special Appeals, we granted certiorari in order that it could be docketed in this Court. Although the factual background and particularly the family pedigree are difficult to keep in mind, the case presents two relatively simple issues: (i) When a will directs a distribution on the death of the testator’s last surviving child among “issue and descendants” per stirpes of children of the testator who have died leaving issue surviving, where are the stocks or stirpes to be found?

(ii) Is distribution to be made only to issue and descendants living at the time of distribution? The chancellor (Ross, J.) determined that the stocks, or stirpes, were to be found among the children of the testator, and not among the grandchildren who were the first takers of an absolute interest, and that distribution was to be made only to descendants living at the time of distribution. For reasons to be developed, we shall affirm. Arthur Nattans I died domiciled in Baltimore on 17 April 1905, survived by his widow, Jennie Nattans; by three children of a prior marriage: Emily N. Herbert, Addie N. Bachrach, and Samuel A. Nattans, and by five children of his second marriage: Rita Nattans (later Myers), Ralph Nattans, Edith Nattans (later Hecht), Hortense Nattans (later Solomon), and Arthur Nattans (Arthur Nattans II).

The provisions of the Nattans will, executed on 3 October 1903, with which we shall here be concerned are contained in Items Sixth and Tenth. By Item Sixth, 396 shares 1 of stock of Read Drug and Chemical Company of Baltimore City (Read’s) owned by Mr. Nattans were bequeathed to trustees to pay the income from specified numbers of shares to the Nattans children, as follows: ⁴²³ Emily N. Herbert Addie N. Bachrach Samuel A. Nattans Rita Nattans (Myers) Ralph Nattans Edith Nattans (Hecht) Hortense Nattans (Solomon) Arthur Nattans II 40 shares 29 shares 29 shares 60 shares 40 shares 60 shares 60 shares 40 shares 2 Item Tenth provided: “Tenth. In the event of the death of any of my children above named, during the continuance of this trust, without leaving issue him or her surviving, the income herein given to the child so dying without issue living at his or her death, shall be divided equally among his or her surviving brothers and sisters annually during the continuance of this trust. And in case of the death of any one of my said children during the continuance of said trust, leaving issue him or her surviving, the income of the share of the one so dying shall go to and become the property of his or her child, if only one, or children, if more than one, equally, share and share alike.

Upon the death of the last survivor of all my said eight children this trust shall cease, and thereupon the entire trust property, shall be divided by my said trustees, or their successors in the trust, among the issue and descendants of such of my children as may have died leaving lawful issue him or her surviving per stirpes and not per capita. And the said trustees, and their successors in the trust, are authorized ⁴²⁴ and directed to make, execute and deliver all such deeds and instruments of conveyance or assignment as may be necessary to make said division.” (Emphasis in original.) In Ryan v. Herbert, 186 Md. 453 , 47 A. 2d 360 (1946), our predecessors had occasion to review a declaratory decree which had construed the provisions of Item Tenth relating to devolution of income prior to the termination of the trust. That decree, which was affirmed on appeal, had directed that on the death of a child of Arthur Nattans I prior to the termination of the trust, leaving any issue whatsoever surviving, such issue took a vested interest in the income to which the dying child had been entitled, subject only to defeasance by the termination of the trust. As a result, when Harold Herbert and Arthur N. Bachrach, grandsons of Arthur Nattans I, died prior to the termination of the trust without leaving descendants surviving, the income which each had been receiving was paid to his respective estate.

No consideration was given to the devolution of the corpus at time of termination beyond a recognition that it would certainly pass in proportions which differed from the shares of income, and that it might well pass to persons other than those who had received income from the trust under the determination reached in Ryan . Arthur Nattans II, the last surviving child of Arthur Nattans I, died on 24 September 1972. In consequence of his death, the trust under his father’s will terminated. Appended to this opinion is a chart showing the lines of descent from Arthur Nattans I as they existed at the time of the death of Arthur Nattans II.

Next to the name of each of the distributees appears a fraction representing the share of the trust respectively awarded by the lower court’s decree. This distribution was predicated upon the chancellor’s determinations (i) that the remainder of the trust should initially be divided into seven parts — one part for the issue and descendants of each of the seven children of Arthur Nattans I. who died leaving descendants surviving at the time of termination — and (ii) that only descendants living at the time of termination could take. ⁴²⁵ Appeals from the first part of the decree were taken in behalf of Albert Lowenthal, Jean A. Lowenthal, Ralph A. Nattans, Ruth L. Creamer, Arthur Nattans, Jr., Roger H. Nattans, and Emanuel Hecht, II, all grandchildren of Arthur Nattans I, who contended that the stocks, for the purposes of distribution, should have been found among the grandchildren, who would presumably be the first takers, and not among the children, who had life interests only. Accordingly, they argue that the initial division should have been into 13 parts, one of which should have been awarded to each of the 11 grandchildren living at the death of Arthur Nattans II, one to the descendants of Alan Herbert and one to the descendants of Dorothy Schatzkin, both grandchildren who had died prior to termination of the trust leaving descendants surviving. Appeals from the second part of the decree were entered in behalf of the administratrix of the estate of Harold Herbert and the executors of the will of Arthur N. Bachrach, the two grandchildren of Arthur Nattans I who had died prior to the termination of the trust without leaving descendants surviving.

The contention of the personal representatives was that their decedents had acquired vested interests in the corpus of the trust, not subject to defeasance by the death of their decedents prior to the time fixed for the termination of the trust without leaving descendants surviving. Seeking to sustain both aspects of the chancellor’s decree are the appellees Arthur K. Solomon, a grandchild; Aline H. Johnson, Barbara H. Cleveland and Elinor S. Multer, great-grandchildren, and Paul W. Schatzkin, Arthur G. Schatzkin, and Dorothy R. Schatzkin, great-great-grandchildren. As regards the second part of the decree, all of the appellants except the Herbert and Bachrach estates are cast in the role of appellees, supporting that portion of the court’s ruling which conditioned the right to take upon survivorship. The Herbert and Bachrach estates are appellees as regards that portion of the decree which directs an initial division into seven parts. ⁴²⁶ (i) The stirpes, or stocks, are to be found among the children of Arthur Nattans I who left descendants surviving at the time of termination, and not among the grandchildren, who are the first takers.

Concededly, this Court has been something less than sure-footed in dealing with distributions among descendants per stirpes. In Patchell v. Groom, 185 Md. 10 , 43 A. 2d 32 (1945), construing a will drawn about two years prior to a testator’s death in 1885, a divided Court found the stocks among the first takers, relying on the English cases of Robinson v. Shepherd, 55 Eng. Rep. 261, rev’d, 46 Eng. Rep. 865 (1863); In re Wilson (Parker v. Winder), 24 Ch.

D. 664 (1883); Re Dering (Neall v. Beale), 105 L.T.R. (n.s.) 404 (1911), and In re Alexander (Alexander v. Alexander), [1919] 1 Ch. 371 (1918), thus rejecting the rule of Gibson v. Fisher, L.R. 5 Eq. 51 (1867), which found the stocks in an earlier generation. The same result would have obtained in Patchell had the stocks been found in the children, and not the grandchildren, of the testator, as was urged by a minority of the Court. In the next case, Ballenger v. McMillan, 205 Md. 94 , 106 A. 2d 109 (1954), where the provisions of a deed of trust drawn in 1912 were under consideration, the view of the concurring minority in Patchell prevailed, and the Court, relying principally on Sidey v. Perpetual Trustees Estate & Agency Co. of New Zealand, Ltd., [1944] A.C. 194, found the stocks among the testator’s children, and not among the first takers.

For an explanation of this apparent volte face, see Patchell v. Groom Revisited: Distributions Among Descendants Per Stirpes, 15 Md. L. Rev. 1 (1955). In the cases which have come before the Court since Ballenger, Robinson v. Mercantile-Safe Deposit & Trust Co., 214 Md. 30 , 132 A. 2d 841 (1957); Cole v. Bailey, 218 Md. 177 , 146 A. 2d 14 (1958); Sollers v. Mercantile-Safe Deposit & Trust Co., 262 Md. 606 , 278 A. 2d 581 (1971), and Kelly v. Mercantile-Safe Deposit & Trust Co., 262 Md. 626 , 278 A. 2d 584 (1971), the Court has not wavered from applying the ⁴²⁷ Ballenger rule, nor is it likely to do so in the absence of a clear expression of contrary intention. The observation which Judge Henderson made in his concurring opinion in Patchell v. Groom, supra, 185 Md. at 29-30 , 43 A. 2d at 40-41 , quoted by the Court in Ballenger v. McMillan, supra, 205 Md. at 104-05 , 106 A. 2d at 114 , that in the absence of an expression of contrary intent the direction that a distribution be made per stirpes will result in the distribution which would have been made under the statute of distribution, was amplified in Sollers v. Mercantile-Safe Deposit & Trust Co., supra, 262 Md. at 610-11, 278 A. 2d at 583, to the end that descendants will take in the manner provided by the statute of descent and distribution in effect at the death of the testator, just as if the person identified as the stock had died intestate at the time of distribution owning the subject of the gift, see Restatement of Property § 303(1) (1940), and Maryland Code (1957, 1969 Repl. Vol.) Art. 93, § 1-210, applicable to estates of persons dying after 1 January 1970; see also Code (1957, 1969 Repl.

Vol., 1973 Cum. Supp.) Art. 93, § l-210(a) (effective 1 July 1972). It might not be amiss to comment here that the English cases decided in the mid-19 th century, involving distributions among collaterals, must be carefully analyzed before being accepted as persuasive. The reason is that the English Statute of Distribution, 22 & 23 Car. 2, c. 10, § § V, VI, VII (1670), was probably never in force in Maryland, and certainly was not after 1715, see opinion of Chief Justice Alvey (formerly Chief Judge of this Court) in Iglehart v. Holt, 12 App. D. C. 68, 83-84 (Ct. App. 1898), and McComas v. Amos, 29 Md. 120, 130 (1868) (Alvey, J.), relying on Duvall v. Harwood, 1 H. & G. 474 (Md. 1827), and Robins v. State, 1 H. & G. 476 (Md. 1809) (first reported in 1827).

Our statute of distribution, now Code (1957, 1969 Repl. Vol.) Art. 93, §§ 3-102 through 3-104, is derived without substantial change from Chapter 101, subchapter 11 of the Laws of 1798. 3 The difference lies in the fact that under the British statute, ⁴²⁸ members of different generations, if collaterals beyond brothers’ and sisters’ children, could take per capita, while under our statute, collaterals beyond brothers’ and sisters’ children in the closest degree of relationship took equally, and a more remote descendant could never share with a living parent. Compare McComas v. Amos, supra, 29 Md. at 130 -32 until In re Ross’s Trusts, L. R. 13 Eq. 286, 293 (1871) (Wickens, V.C.). See generally 6 R. Powell, Law of Real Property ¶ 999, at 665-70 (1973).

It seems to us that the problem is resolved by the black letter of Restatement of Property, supra, § 303(1): “When a conveyance creates a class gift by a limitation in favor of a group described as the ‘issue of B,’ or as the ‘descendants of B,’ and the membership in such class has been ascertained in accordance with the rules stated in §§ 292 and 294-299, then, unless a contrary intent of the conveyor is found from additional language or circumstances, distribution is made to such members of the class as would take, and in such shares as they would receive, under the applicable law of intestate succession if B had died intestate on the date of the final ascertainment of the membership in the class, owning the subject matter of the class gift.” 4 More particularly, this is explicated by comment a to section 303(1): “a. Historical rationale. In England a limitation in favor of the ‘issue of B’ or in favor of the ‘descendants of B’ was normally construed to be in favor of all the descendants of B in all generations (with certain restrictions as to legitimacy, see § 292) and these descendants took per capita, descendants having living parents who were also descendants sharing along with their parents. ⁴²⁹ Whatever justification this construction may have had in its origin, it is clear that its retention in the United States at the present time would cause serious deviations from the intent normally present in the mind of a conveyor limiting property to the ‘issue of B.’ The change from the English rule began with increased emphasis upon the constructional factors sufficient to cause ‘issue’ to be construed as substantially similar to ‘heirs of the body’ and hence to cause the ascertainment of the takers thereunder by reference to the statute of intestate distribution. Then the cases said that ‘a faint glimpse’ of a different intention would exclude the per capita and cause the per stirpes distribution.

More recently the change has been frankly recognized and at the present time the rule stated in this Section represents the existing American law. This rule rests upon the fact that conveyors normally use ‘issue’ as substantially the equivalent of ‘heirs of the body,’ and seldom desire the inequalities between stirpes which were unavoidable under the earlier English rule. In so far as ‘possible takers’ under a gift to ‘issue’ are required to survive to the time of distribution, when this time is subsequent to the death of their ancestor (see § 296, Comment g), the law normally applied to ‘heirs of the body’ is departed from.” (Emphasis in original.) See also 3 R. Powell, supra, ¶ 370, at 213-16. The group of appellants associated with Ralph A. Nattans urge that Restatement section 303 (1) is inapplicable to this situation, since a narrow reading would seem to confine it to a provision made for the issue or descendants of a single individual, which is not the situation here.

What they have overlooked is that section 304 of the Restatement, taken with section 311 (1), extends the rationale of section 303 (1) to a limitation to “the issue of B and the issue of C” where “the rule stated in § 303 applies to determine the persons taking as issue of one or more of the designated persons,” ⁴³⁰ and B and C have a common parent or grandparent, which is the case here. Instead, the appellants pin their hopes on language contained in comment h to section 301 (a). Section 301 calls for a per capita distribution of a gift to two or more described groups, such as “children