Baker v. Baylies

• Decision Date: 09 April 1963
• Docket Number: No. 286,286
• Citation: Baker v. Baylies, 189 A.2d 820, 231 Md. 287 (Md. 1963)
• Parties: Charles B. BAKER et al. v. Kenton S. BAYLIES et al. and Mercantile-Safe Deposit & Trust Co., etc.
• Court: Maryland Court of Appeals

Page 287

231 Md. 287

189 A.2d 820

Charles B. BAKER et al. v. Kenton S. BAYLIES et al. and Mercantile-Safe Deposit & Trust Co., etc.

No. 286.

Court of Appeals of Maryland.

April 9, 1963.

William A. Fisher, Jr., Baltimore (Semmes, Bowen & Semmes, Baltimore, on the brief), for Jeannette B. McNerney, appellant.

B. Conway Taylor, Jr., and Jon F. Oster, Baltimore (Due Nickerson, Whiteford & Taylor; Hinkley & Singley, William O. Doub, George M. Radcliffe and Niles, Barton, Gans & Markell, Baltimore, on the brief), for Charles B. Baker and others, appellants.

Melvin J. Sykes, Baltimore (Philip L. Sykes, Baltimore, and Roy R. Rigby, Trenton, N. J., on the brief), for Kenton S. and Alfred J. Baylies, appellees.

J. Crossan Cooper, Jr., Russell R. Reno, Jr., and Venable, Baetjer & Howard, Baltimore, for Mercantile-Safe Deposit & Trust Co., appellee.

Before HENDERSON, HAMMOND, PRESCOTT, MARBURY and SYBERT, JJ.

HAMMOND, Judge.

The chancellor construed the will of John H. Baylies, who died in 1911 a resident of Maryland, as passing an ultimate remainder to those persons living in 1961 (when the last surviving life tenant died without issue) who would take from the testator, under the law in effect in 1911, 'an estate of inheritance in lands in fee vested in me by purchase, in the event of my death intestate, according to the existing law of the State of Maryland.' The appeals are, respectively, by one who would take if the ultimate remainder had been intended to pass to the heirs of the testator living at his death, ascertained with reference to the law then in force, and by those who would inherit if both the class of takers and the applicable law are ascertained as of 1961.

The will left the rest and residue of the Baylies estate in trust for the widow for life and from and after her death in equal trust for the son and daughter of the testator during their joint lives. At the death of one of them, leaving issue, the half share of the one so dying went to such issue upon arrival at the age of twenty-one years. If there were no issue living at the critical times, the surviving son or daughter was to be paid all the income for life, and:

'In case both my said son and my said daughter shall die without leaving any issue him or her surviving; or in case no child or children of my said son or my said daughter shall live to attain the age of twenty-one years, in that case I give my whole estate to such person or persons as would take from me an estate of inheritance in lands in fee vested in me by purchase, in the event of my death intestate, according to the existing law of the State of Maryland.'

The parties are in agreement, justifiably we think, on the following matters:

(a) When the will was written in 1903 and when it was probated in 1911, there were in effect three statutory patterns of intestate devolution. There was one order of distribution for real estate vested in the intestate by descent from ancestors, a different order of distribution for real estate vested in the intestate by purchase or otherwise than by descent from ancestors, and a third pattern, different from the first two, for the distribution of personalty.

(b) With respect to all three types of descent, the law provided 'that there be no representation admitted among collaterals after brothers' and sisters' children' (Code (1911), Art. 46, Sec. 27, for real estate vested by purchase).

(c) In 1916 the legislature changed the order of distribution and, as a result, the distribution of real estate of all kinds was assimilated to the order of distribution of personal property; and the provision whereby children of deceased nephews and nieces could not share by representation with surviving nephews and nieces was eliminated. (See Chapters 325 and 224 of the Laws of 1916).

(d) When John Baylies died in 1911, his estate consisted of realty worth about $12,000 and personalty of a value of approximately $103,000.

(e) The testator was survived by his widow and a daughter and a son. The widow died in 1923, the daughter, unmarried and childless, in 1945, and the son, unmarried and childless, in 1961. The testator's closest living relatives at his death, other than his wife and children, were a brother and a sister. At the death of the testator's son in 1961, the testator's closest living relatives were two of his nephews, Kenton and Alfred Baylies, appellees, who took the estate under the decree appealed from. Five other nephews and nieces, living at the death of the testator, died prior to 1961 leaving children (or grandchildren, the children of deceased children), who were living in 1961.

(f) The will created alternative contingent remainders.

(g) The remainder to the heirs of the testator was a gift of a contingent future interest to a class, rather than to named or immediately ascertainable persons. (Evans v. Safe Deposit & Trust Co., 190 Md. 332, 338, 58 A.2d 649.)

We have comparatively little difficulty with the case. The will affords some, if faint internal evidence of the testator's intent, as to the time the heirs who were to take his estate were to be ascertained. If the class is to be fixed as of the testator's death, the members would be his children. The incongruity of finding an intent to ultimately give to a legatee who is a life tenant the remainder outright, as heir, after his death, has been commented on in the texts and the cases, 3 Restatement Property Sec. 308, Comment k; 5 American Law of Property, Sec 22.59 (pp. 431-432); cases collected in Note 30 A.L.R.2d 393, 413, et seq.; but this has not prevented judicial constructions that such a result was intended or required. See Weller v. Kolb, 128 Md. 221, 97 A. 542; cf. Safe Deposit & Trust Co. v. Carey, 127 Md. 593, 596-597, 96 A. 796.

The testator provided exhaustively for all contingencies in which his children or their issue were to take. The gift of the ultimate remainder to a class of 'such person or persons' as he specified gives a hint, inconclusive though it may be, that others than his descendants were contemplated.

The testator imposes various conditions of survival on the vesting of interests in his descendants. This gives some ground for inferring that if Mr. Baylies required the nearest and dearest objects of his bounty to survive in order to take, he intended to exact as much of those who were to take if all issue failed. So read, the plan of the will was to leave the estate to the testator's closest relatives living at the vesting of either of the alternative contingent remainders.

The will was drawn by an experienced and competent lawyer in 1903. The case of Demill v. Reid, 71 Md. 175, 17 A. 1014, had been decided some fourteen years earlier. In that case the will gave a life estate to a grandson, with alternative contingent remainders to his children and their issue, if any, or if none then to the children of a son of the testator. The second contingency occurred and the remainder was given to the children of the son then living to the exclusion of those who would take as the representatives of children who had died before that time. Judge Miller, for the Court, said: 'It seems to us to be clear law, as well as good sense, that in a case like this where there is an ultimate limitation upon a contingency to a class of persons plainly described, and there are persons answering the description in esse when the contingency happens, they alone can take.' Between the drafting of the will and its probate in 1911, Thom v. Thom, 101 Md. 444, 458, 61 A. 193, and Schapiro v. Howard, 113 Md. 360, 78 A. 58, both of which followed Demill v. Reid, were decided. It is...