White v. Roberts

⁴⁰⁷ Adkins, J., delivered the opinion of the Court. John B. Roberts, late of Baltimore City, died on or about April 6th, 1923, leaving a will and three codicils. By the terms of the will he devised and bequeathed his entire estate to the Safe Deposit and Trust Company of Baltimore, one of the appellants, in trust, to collect the income therefrom and to pay the net income to his wife during her life, and upon her death to divide the corpus into five equal parts and to pay the income from said parts, respectively, to the following persons during their respective lives with remainders as indicated below, viz.: 1. Iiis son, Major William M. Roberts, at his death, remainder to his descendants then living, but if no descendants, remainder in equal shares to testator’s- nephew and niece, John Roberts and Isabel Dallam. 2.

John Roberts, a nephew; remainder to his descendants living at his death, per stirpes; and if none, to such of his sisters, Mary Roberts, Isabel Dallam, Mrs. Howard and Mrs. Whiteford as may be then living, and the descendants then living of such of them as may be then deceased, per stirpes. 3. Isabel Dallam, a niece; remainder to her descendants living at her death, per stirpes; and if none, to such of her sisters, Mary Roberts, Mrs. Howard and Mrs. Whiteford, and her brother, John Roberts, as may then be living, and the descendants then living of such of them as may then be deceased, per stirpes. 4. Mary Roberts, a niece; remainder to her descendants living at her death, per stirpes; and if none, to such of her sisters, Isabel Dallam, Mrs. Howard and Mrs. Whiteford and her brother, John Roberts, as may then be living, and the descendants then living of such of them as may then be deceased, per stirpes. 5. Sallie Street, a half-sister; remainder to Mary Roberts if she be living at the death of Sallie, and if not, to such of testator’s nieces and nephew, Isabel Dallam, Mrs. Howard and Mrs. Whiteford and John Roberts, as may be then liv ⁴⁰⁸ irg, and the descendants then living of such of them as may then be deceased, per stirpes.

The trustee is given power to sell and to change investments. By the first codicil, testator’s wife, who was named as executor of the will, having died, Francis A. White is substituted as executor. By the second codicil he makes several small bequests, and the following important change in his will, viz.: “The one-fifth interest in my estate given to my nephew, John Roberts, I wish changed and given to my niece, Mary Roberts, she to receive the interest during her life; at her death I wish her to place it by her will as she may desire. Also the one-fifth interest given my niece, Mary Roberts, I wish her to have the interest paid her during- her life — at her death to place it as she may wish — by her will.

The interest on one-fifth of my estate to be paid my son, W. M. Roberts, on his death I wish divided between my nephew, John Roberts, and my niece, Mrs. White-ford, Mrs. Howard being dead. The interest on one-fifth of my estate given to Sallie Street at her death to be paid to my niece, Mary Roberts. After the death of my niece, Mary Roberts, I wish this interest divided betwen my nephew, John Roberts, and my niece, Mrs. Whiteford, Mrs. Howard being dead.” The third codicil is as follows: “My niece, Mrs. Dallam, died December the 25th, 1922. In my will I left her the interest' on one-fifth of my estate; this I wish paid and. equally divided between her sons, Donald, John W. and Charles L. Dallam. “Interest to be paid every six months. “John B. Roberts, “1116 St. Paul St., "Feby. 3rd, 1923." “Witness: “Arthur W. Bond. “S. H. Walker” ⁴⁰⁹ On the death of testator, his son, Major Roberts, being dissatisfied with the provisions of the will, threatened to file a caveat.

This was averted by an agreement reached by the surviving nephew and nieces of testator and the children of Mrs. Dallam, who had died, to which Major Roberts and Sallie Street assented, as follows: “In The “Orphans’ Court of Baltimore Oity. “In the Matter of the Estate of John B. Roberts, Late of Baltimore City, Deceased. “This agreement, made this 21st day of June, in the year 1923, by and between Mary Roberts, John W. Roberts, Wilhelmina Whiteford, Donald Dallam, John W. Dallam and Charles L. Dallam, legatees and distributees under tlie last will and testament of John B. Roberts, late of Baltimore City, deceased. “Whereas, by the last will and testament and codicils thereto of the said John B. Roberts, late of Baltimore City, deceased, he devised all of his property as therein set forth, said will being duly admitted to probate and now of record amongst the Will Records of Baltimore City; “And whereas, Major William M. Roberts, the only son of said John B. Roberts, is about to file a caveat to said will, because of its provisions, which are unsatisfactory to him; “And whereas, in consideration of the agreement on the part of the said William M. Roberts to settle all controversies in reference to said will, witb the understanding that he shall receive 45% of the net amount of said estate, and the other devisees therein named, being the parties to this agreement, who together with Miss Sallie Street, to whom oue-fifth of said estate was devised in trust, are to receive 55% of the net amount of said estate; “Now, therefore, this agreement witnesseth, that in consideration of the premises and of the agreement on the part of William M. Roberts to take 45% of said estate, in lien of all his interest therein (this agreement not intended, however, to affect the devise of certain specific chattels referred to in said will, ⁴¹⁰ ■which are to go as provided in said will), the said Mary Roberts, John W. Roberts, Wilhelmina White-ford, Donald Dallam, John W. Dallam and Charles L. Dallam do hereby agree that 45% of the said estate of John B. Roberts, deceased, shall be paid in cash in the final distribution of said estate free, clear and discharged of any trust, to the said William M. Roberts, upon his relinquishing all his rights of every kind and character in the balance of said estate, or any contingent interest therein, except as to the personal chattels above referred to, and that 2/5 of the balance of said estate, consisting of 55% of the net amount thereof, shall be paid to Mary Roberts free, clear and discharged of any trust, and that 1/5 of the remaining part of said estate which was devised to the said William M. Roberts for life, with remainder ■over to John W. Roberts and Wilhelmina Whiteford absolutely, shall go to and vest in the said John W. Roberts and Wilhelmina Whiteford absolutely, free, clear and discharged of any trust, to be divided between them share and share alike. “And whereas, by the last codicil to said will, the interest on 1/5 of the estate was directed to be paid and divided equally between Donald Dallam, John-W. Dallam and Charles L. Dallam, and that some •question existed as to whether they had any right to anything but the income thereof; it is further understood and agreed that in view of the fact that the said Major William M. Roberts has released all his interest in 55% of this estate, in consideration of receiving 45% thereof absolutely, and that the 1/5 interest so devised to the said Donald Dallam, John W. Dallam and Charles L. Dallam shall vest in them absolutely, and be paid to them in cash, free, clear and discharged of any trust or any possible claim of the said'William M. Roberts to said 1/5 interest in said 55% of the net amount of said estate, and that the 1/5 interest in said 55% of said estate devised to Sallie Street for life is to remain in trust as provided in said will. ⁴¹¹ “And the parties to this agreement further agree that they will sign any other or further agreement that may be necessary to carry out the provisions of this settlement, whether by agreeing that the will shall be set aside and the distribution made as hereinbefore set forth, or whether the estate shall be distributed under a proceeding duly instituted in one of the equity courts of Baltimore City, under the provisions of chapter 228 of the Acts of 1920. “As witness our hands and seals the day and year above written. “Mary Roberts. (Seal) “John W. Roberts. (Seal) “Wilhelmina Whiteford. (Seal) “Donald Dallam.

(Seal) “John W. Dallam. (Seal) “Chas. L. Dallam. ' (Seal).” The bill of complaint in this case (with the above mentioned will, codicils and agreement as exhibits) was filed by the executor and the trustee against William At. Roberts and wife, John William Roberts (called John Roberts in the will) and wife, adults; the two infant children of John W. Roberts, the three children (all adulls) of Isabel D'allam, deceased ; the son and daughter (adults) of Mrs. Howard, deceased, and their spouses, Mrs. Whiteford, adults, and her three infant children, and Sallie S-treet, adult.

The bill alleges the facts above recited, describes the parties, and alleges that all the persons now living and interested, or possibly interested, and affected, as legate.es under various constructions of the will and codicils, so far as here material, are made respondents. It further alleges that said agreement is satisfactory to all the adult defendants, although some of them have not yet signed it, and that said agreement is intended to settle and determine all controversies with reference to the validity of the will; that plaintiffs believe that said settlement is to the best interest of the ('state as a whole in the contest with the next of kin, and, therefore, believe that it should be ratified ⁴¹² unless the court should determine that the carrying out of the same improperly alters the rights of the beneficiaries’ inter ses6j by reason of the provisions accelerating- remainders, as set forth in said agreement; that plaintiffs, as representing all possible interests under the said will and codicils, feel it to be their duty to impartially call the attention of the court to the possible interpretations of the will, other than those assumed in said agreement, under which possible interpretations the rights of certain of tire beneficiaries under the will as so construed are ignored or adversely affected; that in so far as the agreement may ignore or affect the rights of possible beneficiaries, not parties to the agreement, plaintiffs .submit the same without recommendation since they feel they have no right to determine questions which may be questions of interpretation adversely affecting the interests of certain beneficiaries ox possible beneficiaries, and feel that their duty is limited to making parties to the bill such possible beneficiaries now in esse and apprising the court of the rights of other possible unborn beneficiaries in order that their interests, if any, may be protected in such manner as to the court may seem proper. The debatable questions suggested by the bill are as follows : 1. It sets out the provision of the will in favor of Major William M. Roberts, and the modification of the provision of the will as to the remainder in said one-fiftli part by the' second codicil, and suggests that a conceivable construction of this part of the will and codicil which is not contemplated by the settlement agreement would be, that the remainder to the children of William M. Roberts, created by the original will, was not revoked, but that the original provision of the will above referred to was only modified in the codicil with respect to the executory devise over in the event of Major Robert’s death without children, and that, therefore, under this possible construction any future children of Major Roberts might conceivably have an interest in the estate, which is ignored in the proposed settlement. ⁴¹³ 2.

It sets cut the provisions of the will as to the second anti fourth shares, and the modifications thereof by the second codicil; and avers that the part of the agreement relating to these shares is based on the assumption that Mary Roberts by joining in the agreement defeats the possibility of any future claim by beneficiaries under her own will, if she should exercise her testamentary power of appointment conferred by the codicil, and is based on the further assumption that the remainder in default of appointment would vest in Major Roberts, who is a party to the agreement. The bib suggests that if the first assumption is not well provided that the future possible beneficiaries under the will of Mary Roberts might have a possible interest in the estate; and if the second assumption is not well founded, and if the provisions in the original will govern, in default of appointment under the testamentary power conferred by the second codicil (there being no exjnens revocation except as to the life interest in the second share), then any future children of Mary Roberts or the executory devisees, as determined upon the death of Mary Roberts, would have a possible interest, in the estate; that while all of the children now m esse who might conceivably take in default of appointment have; been made parties, the future children of Mary Roberts and the future children of the executory devisees named in the original will and the future possible beneficiaries under the will of Mary Roberts are not represented in this proceeding, and their rights, if any, are ignored in the agreement. 3. It sets out the provisions of the will as to the third share and the modification thereof by the tim'd codicil, and avers that the agreement that this share shall he paid to Donald Dallam, John W. Dallam and Charles L. Dallam, children of Isabel Dallam, deceased, absolutely and. discharged of any trusts, is based upon the assumption either