Wilson v. Pichon

Sloan, J., delivered the opinion of the Court. On this appeal the only question is whether a remainder is vested or contingent. The chancellor held it to have vested on the death of the testator. It has been often declared by this court that the early vesting of estates is favored, and that “in doubtful cases the interest should be held to be vested rather than contingent, unless the instrument under consideration does not admit of such construction.” Miller, Construction of Wills, 630.

As stated in Tayloe v. Mosher, 29 Md. 443 , 457: “Estates will be held to be vested wherever it can be done without doing violence to the language of the will, and to make them contingent there must be plain expressions to that effect, or such intent must be so plainly inferrable from the terms used to leave no' room for construction.” .The test to1 be applied, as adopted in Cox v. Handy, 78 Md. 108, 121 , 27 A. 227 , 501, from Moore v. Lyons, 25 Wend. (N. Y.) 144, is: “Eor, where a remainder is so- limited as to take effect in possession, if ever, immediately upon the determination of a particular estate, which estate is to' determine by an event which must unavoidably happen by the efflux of time, the remainder vests in interest as soon as the remainderman is m esse and ascertained, provided nothing but his own death before the determination of the particular estate will prevent such remainder from vesting in possession.” See Lewis v. Payne, 113 Md. 127, 137 , 77 A. 321 ; Cole v. Safe Dep. & Trust Co., 143 Md. 90, 95 , 121 A. 911 . As observed by Judge Bryan in Cox v. Handy, 78 Md. 108, 123 , 27 A. 227 , 228, 501, “These rules are intended to aid the courts in discovering the testator’s meaning, but we fear there is some ground for the complaint of an eminent judge that on many occasions the testator’s intention has been defeated by the application of rules which were intended to effectuate it.” It was the confusion in the application of such simple ²⁰¹ rules of construction that led Judge Pearce, in Poultney v. Tiffany, 112 Md. 630, 633 , 17 A. 117, 118 , to say: “The question of when an estate shall vest in interest, where there is more than one period mentioned at which it would be possible for it to1 vest, is one which has long perplexed the courts, and in reference to which there has been such great diversity and confusion of judicial opinion that it would be idle to attempt to reconcile all the cases even in any one jurisdiction.” See Miller, Construction of Wills, 634, 654. If, as. so often said, the intention of the testator as expressed by him is the law of wills., then, logically, the controlling precedents, if there are any, should be other wills which have been construed by this court, compared with the will now before us for construction.

This, was the method followed by counsel in this case in the excellent briefs submitted by them, in which, however, they reached different conclusions. The testator, D'avid S. Wilson, died in 1882, leaving a will containing this provision: “And I hereby give to’ my said daughter the power by any testamentary paper, to devise and bequeath any part of the real and personal estate as the same may be held in. trust for her at the time of her death, not exceeding one-half in value of said estate to and among my sons and their wives and descendants, and in such manner and proportions as she may think proper; or if she shall so desire she may devise and bequeath one-third of said half to such charitable and religious associations or corporations as she may prefer, and the entire remainder of said trust estate, including such portion of said half part as may not be devised and bequeathed by her as aforesaid, I devise and bequeath at her death to my sons James G. Wilson and William B. Wilson equally and absolutely, and to the descendants of either or both of them, if either or both shall die before her, such descendants to take per stirpes and not per capita, the shares to which its. or their parent or parents would, if living, be entitled to.” The son James G Wilson died June 1st, 1904, leaving surviving his widow, Josephine >0. Wilson, who died March ²⁰² 12th, 1905, each leaving wills in favor of the other. They left one son, Marshall G. Wilson, who' died June 4th, 1905, leaving a will whereby he devised and bequeathed all of his property to- his wife, now Marie Eugenie Pichón, the appellee.

The son William, Bowly Wilson diied February 14th, 1915, leaving surviving him a son, Melville Wilson, a daughter, Emma Wilson Eumbold, and a daughter, Virginia Marshall Wilson Bandall. A daughter, Ella C. Wils&n, died March 8th, 1914, intestate and childless. Any interest which William Bowly Wilson had in the trust estate was sold and conveyed by bis trustee in bankruptcy, Harry N. Baetjer, to Jane Marshall Wilson, wife of William Bowly Wilson, who died before her husband, on June 15th, 1913, leaving a will by which she devised and bequeathed her estate to the Safe Deposit & Trust Company in trust for her four children, all of whom are living except Ella C. Wilson. The daughter, Mary Bowly Wilson, for whom the property of her father had been held in trust under bis will, died March 14th, 1931, without having exercised the power of appointment conferred by the will (Roberts v. Roberts, 102 Md. 131 , 62 A. 161 ; Swift v. Cook, 133 Md. 651 , 105 A. 869 ), and the question now arises, on the petition of the Safe Deposit & Trust Company and Melville Wilson, present trustees by succession and appointment, as to when the remainders became vested, a decision which will determine to whom the corpus of tbe trust estate is payable and in what proportions.

The appellants contend that it was the expressed intention of the testator that the remainders were contingent upon the brothers, James and William, surviving their sister, and that they, being the only remaindermen answering the description of the grandchildren entitled to take after the death of tbe life tenant, are entitled to the whole. The chancellor held for an immediate vesting, and it is from a decree accordingly that this appeal is taken. The chancellor based his opinion on Cox v. Handy, 78 Md. 108 , 27 A. 227 , 501, while the appellants contend that the ²⁰³ decision should have been for a late vesting on the authority of Demill v. Reid, 71 Md. 175 , 17 A. 1014 ; Larmour v. Rich, 71 Md. 369 , 18 A. 702 ; Reilly v. Bristow, 105 Md. 326 , 66 A. 262 ; Poultney v. Tiffany, 112 Md. 630 , 77 A. 117 , and Lansdale v. Linthicum, 139 Md. 155 , 115 A. 116 , in which it was held that the language of the wills or deed construed indicated an intention on the part of the testator or donor to delay the vesting of the estate, interest as well as possession, to the determination of the life estates. The view which this court subsequently took of the opinions in three of the cases so relied on by the appellants is stated in .the language of the opinion by Judge Urner in Lee v. Waltjen, 141 Md. 450 , at page 456, 119 A. 246, 248 (where the early vesting of the remainder was held), as follows: “In Larmour v. Rich, 71 Md. 369 , 18 A. 702 , the limitation in remainder was created by a provision that 'from and immediately after’ the decease of the last survivor of seven life tenants 'then’ the estate should 'descend to and become the property of their child, or children respectively.’ The testator was held to have thus designated with reasonable certainty the time at which he wished the estate to 'become’ the property of the remainder-men.

In Poultney v. Tiffany, 112 Md. 630 , 77 A. 117 , the remainder clause provided that 'from and immediately after the death’ of the life tenant, the trust should cease and the estate should 'then become the property’ of the remainder-men equally. The ruling in that case followed the decision in Larmour v. Rich, supra, which the court distinguished from Cox v. Handy, supra, on the ground that in the latter case the testator had not clearly disclosed an intention to postpone the vesting in interest until the expiration of the life estate, and the rule in favor of early vesting could therefore be gratified. * * * In Reilly v. Bristow, 105 Md. 326 , 66 A. 262 , the use and repetition of the word 'then,’ in reference to a disposition in remainder after the expiration of life estates, was held to have controlling significance.” In Demill v. Reid, 71 Md. 175 , 17 A. 1014, 1015 , the will was to a trustee for a life tenant, with remainder to a grandson, when he should die, then to his children, their heirs, etc., ²⁰⁴ and, if lie should die without leaving descendants surviving, then to the children of his son, Henry J. Willett. This was held to create an alternative limitation, termed “a contingency with a double aspect.” By the will in Lansdale v. Linthicum, 139 Md. 154 , 115 A. 116, 117 , the testatrix, “upon the death” of her husband, gave, devised, and bequeathed the residue of her estate, “evenly and equally unto such of” her “three children (naming them), as shall be then living, and the surviving issue of any of them who shall have previously departed this life,” and it was there held that the devise was not to the testatrix’ children, but only to “such of them” as were living at the