Hilgartner v. Hilgartner

Decision Date16 December 1915
Docket Number98.
Citation96 A. 519,127 Md. 270
PartiesHILGARTNER et al. v. HILGARTNER.
CourtMaryland Court of Appeals

Appeal from Circuit Court No. 2 of Baltimore City; Chas. W Heuisler, Judge.

Proceeding between Adele Hilgartner, individually and as trustee, and others, and Charles L. Hilgartner, individually and as one of the trustees of Andrew Hilgartner, deceased. From the decree the former parties appeal. Reversed and remanded.

Argued before BOYD, C.J., and BRISCOE, BURKE, THOMAS, URNER STOCKBRIDGE, and CONSTABLE, JJ.

George Whitelock, of Baltimore (Whitelock, Deming & Kemp, of Baltimore, on the brief), for appellants. Roland R. Marchant, of Baltimore (Addison E. Mullikin and Henry H. Dinneen, both of Baltimore, on the brief), for appellee.

STOCKBRIDGE J.

This case involves the construction of the will of, or, more accurately, certain provisions of the will of, the late Andrew Hilgartner. By its first clause he gave to his wife--

"all my household goods, furniture, silverware, plate, books and pictures which I may have in my dwelling at the time of my death; also my private horses, carriages and harness, together with the sum of one thousand dollars ($1,000) in cash."

The second clause of the will then reads as follows:

"I give, devise and bequeath all the rest and residue of my estate, real, personal and mixed unto my wife, Adele Hilgartner, and my brother, Charles L. Hilgartner, to be held by them, in trust, to collect and receive the rents, issues and profits therefrom and after the payment of taxes and other necessary charges and expenses incident to the preservation thereof, to pay the net income from my estate to my wife, Adele Hilgartner, for and during the term of her natural life if she shall so long continue my widow; and upon the death or remarriage of my said wife, then shall my trustees or the survivor or successors of them divide the said rest and residue of my estate as the same may be then constituted, among my children then living, share and share alike, per stirpes and not per capita, the child or children of any deceased child standing in loco parentis; the interest of any child or descendant thereof, who, at the time thus fixed for the division of my estate by my trustees shall not have reached the age of twenty-one years, to continue in the trust created for their use and benefit, until said age has been reached, then to vest free and clear of this trust. The trust in all events to cease and end when my youngest living child shall be twenty-one years of age, at or after the death or remarriage of my wife."

The third clause makes provision, in case Mrs. Hilgartner shall renounce the will, with regard to the disposition of the property which had been bequeathed by the second item of the will.

The fourth clause made provision for the devolution of his property in the event of the death of one or more of his children, and by the fifth clause he provides as follows:

"Item 5. It is my desire and wish and I so will that my brother Charles L. Hilgartner be permitted to purchase from my estate the shares and capital stock of the Hilgartner Marble Company, a body corporate, owned by me at the time of my death, and if he should desire to purchase the same I authorize empower and direct my executors, pending the settlement of my personal estate, and thereafter my trustees to make such sale at and for the book value of the said shares of stock as the same (book value) appears from the last annual statement of the condition and affairs of the said Hilgartner Marble Company made next preceding my death. It is not my intention that the powers elsewhere granted herein to my executors and trustees to sell or change securities or investments of my estate shall apply to the shares of stock of the Hilgartner Marble Co. and should my said brother not elect to buy the said stock after my death, I direct my said trustees to hold the same as a part of the corpus of my estate. By the terms 'book value,' as herein used, is meant the value of the said stock as the same is represented by the items of valuation in the statement of the company which is customary to have made annually by an auditor."

Mr. Hilgartner died on the 21st of March, 1914, and his will was admitted to probate the April following. The date of the granting of the letters does not affirmatively appear in the record but presumably it was on or about the same date as the admission of the will to probate.

On the 12th February, 1915, his executors passed their first administration account, by which 1,250 shares of the capital stock of the Hilgartner Marble Company were distributed to his trustees under the terms of item 2 of the will. On the same day, February, 12, 1915, jurisdiction of the administration of the trust was assumed by the circuit court No. 2 of Baltimore city, and the question now presented is whether, under the language of item 5 of the will, the right of Charles L. Hilgartner to purchase the stock of his brother, Andrew, in the Hilgartner Marble Company had already expired by lapse of time, or whether that right still exists and will continue to exist throughout the life or widowhood of the testator's wife, Adele Hilgartner.

The language of item 5 does not specify the precise point of time at or within which the option or right of Charles L Hilgartner to purchase the stock of his brot...

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