Billingsley v. Bradley

• Decision Date: 02 March 1934
• Docket Number: 22.
• Citation: 171 A. 351,166 Md. 412
• Parties: BILLINGSLEY ET AL. v. BRADLEY ET AL.
• Court: Maryland Court of Appeals

171 A. 351

166 Md. 412

BILLINGSLEY ET AL. v. BRADLEY ET AL.

No. 22.

Court of Appeals of Maryland

March 2, 1934

Appeal from Circuit Court of Baltimore City; Charles F. Stein Judge.

Suit by Bertha M. Bradley and husband and others against Dorothy M Billingsley and others. From an adverse decree, defendants appeal.

Affirmed.

Argued before BOND, C.J., and PATTISON, URNER, ADKINS, OFFUTT DIGGES, PARKE, and SLOAN, JJ.

Isaac Lobe Straus and J. Paul Schmidt, both of Baltimore, for appellants.

F Murray Benson, of Baltimore (William S. Levy and Edgar Allan Poe, both of Baltimore, on the brief), for appellees.

DIGGES Judge.

John Carson, a member of the bar of Baltimore city, died during the month of April, 1883, leaving a last will and codicil wherein, after providing for the payment of his debts and funeral expenses, and making specific bequests of certain personal chattels, he created a trust of all the rest and residue of his estate, the pertinent provisions of which are as follows: Will.

"Fourth: All the rest and residue of my entire estate of every sort and description, and wheresoever situate, I give and devise absolutely and forever to Thomas M. Lanahan and my son John Carson, Jr., and their survivor, his heirs, executors and administrators, in trust as follows:

Fifth: In trust as to one-fourth thereof (save John's insurance money) for my daughter Annie for life, for her sole and separate use, free of all marital right and control whatsoever, and after her death in trust absolutely for her children, subject as hereinafter stated.

Should Annie die without leaving a child or children living at her death, or should such child or children all die within twenty-one years of Annie's death, then I give and devise said one-fourth to Mattie L., John and Bertha upon the same trusts, and the same extent, and in the same manner, as I have provided for them in the Sixth, Seventh, and Eighth clauses of this my will.

Annie's children to enjoy the interest and income of said one-fourth during said twenty-one years.

Sixth: In trust as to one other fourth thereof (save John's insurance money) for my daughter Mattie L., and her children, upon the same trusts, in the same manner, and to the same extent, with a like provision as to the interest and income during said twenty-one years, and with a like limitation over in favor of John, Annie and Bertha, and their children, as is provided in the Fifth clause of this my will; and Mattie's estate and interest so limited over, if said limitation takes effect, is to go as is provided, in the Fifth, Seventh and Eighth clauses of this my will, and upon the same trusts as therein provided.

Seventh: In trust as to one other fourth part thereof (including John's insurance money) for my daughter Bertha, and her children, upon the same trusts, in the same manner and to the same extent, with a like provision as to the interest and income during said twenty-one years, and with a like limitation over in favor of Annie, Mattie L. and John, Jr., and their children, as is provided in the Fifth clause of this my will; and Bertha's estate and interest so limited over, if said limitation takes effect, is to go as is provided upon the same trusts as are set forth in the Fifth, Sixth and Eighth clauses of this my will, and none other.

Eighth: In trust as to the remaining fourth part thereof (save John's insurance money) absolutely for my son John, Jr., when he arrives at twenty-five years of age, to vest now, and the interest to be payable to him, but the principal not to be payable or saleable until the period aforesaid."

Codicil.

"First: The bequest of John's insurance money which by the Third and Seventh clause of my said will I gave and devised to my daughter Bertha I hereby revoke and annul and in lieu thereof and of the conditional bequest thereof, and of my law library to Bertha by said Third clause which said conditional bequest is also hereby annulled and revoked, I hereby give, devise and bequeath all John's insurance money aforesaid to go with and pass under the Fourth clause of my said Last Will and Testament so that all my children share equally in the same.

Second: I authorize my executors and trustees from time to time hereafter (including the survivor of said trustees) at all times hereafter in their discretion and judgment to advance to each of any one of my said daughters and each of them such portion of the principal of my said estate coming to them separately as my trustees or their survivor shall deem proper.

Fifth: I make no provision for my grandson John C. Naylor as I consider him sufficiently provided for."

The testator was survived by one son and three daughters, namely, John Carson, Jr., Mattie L., Bertha, and Annie. He also left one grandson, John C. Naylor, the son of a deceased daughter, Sallie.

His daughter Mattie married Frank de S. Benzinger, who predeceased her. She died January 8, 1896, leaving surviving her three children, Frank de S. Benzinger, Jr., John Carson Benzinger, and Annie B. Griesser, all of whom are now living.

His daughter Bertha married George N. Webster, and died December 12, 1891, leaving surviving her husband, who is now deceased, and one daughter, Bertha M. Bradley, now living.

His daughter Annie first married a Mr. Billingsly, by whom she had one son, John C. Billingsly. She married a second time William T. Hutchins, by whom she had no children, and died March 16, 1930, leaving her husband surviving, and also two grandchildren, the children of her deceased son John C. Billingsly, namely, John Carson Billingsly and Dorothy M. Billingsly, both infants. The mother of these infants, Marie Billingsly, is also alive at this time. His son, John Carson, Jr., died about January 16, 1892, intestate, and without issue, he having married one Annie C. Barkley, who subsequently married Thomas J. Lindsay and died about October 21, 1927.

On June 5, 1930, the descendants of the testator's children, other than his daughter Annie, filed a bill of complaint against the two infant grandchildren of the daughter Annie, and David S. Carter, substituted trustee. The prayers of the bill are: (1) That the court construe the fifth clause of the will of the said testator; and, if it be found by a true construction of said clause that the trust therein created came to an end upon the death of the said daughter Annie, (2) that a decree may be passed for the sale of the said real estate and securities: (3) that a trustee may be appointed to make said sale; (4) that the proceeds of said sale, together with the cash in hand, may be distributed among the persons entitled thereto according to their respective rights and interests; and (5) for general relief. The defendants filed their answers, admitting the facts set forth in the bill, but disputing and denying the construction of the will as contended for by the complainants. The lower court construed the will in conformity with the complainants' contention, and decreed that the property be sold for the purpose of partition among them. The appeal here is from that decree.

The two propositions contended for by the appellants are: First, that the provisions of the will creating and continuing the trust estate are void as violative of the rule against perpetuities; and, second, that the words "child or children," as used in the fifth clause of the will in respect to the daughter Annie's share, should be construed as including "grandchildren."

Considering these points in the order stated, first, Do the provisions of the will violate the rule against perpetuities? It is evident from the whole will that the testator, at the time of its drafting, had in mind this rule, and studiously attempted (we think successfully) to avoid its violation. By the fourth clause of the will the testator gave and devised the legal title to the whole of his residuary estate to Thomas M. Lanahan and John Carson, Jr., "absolutely and forever, in trust" for the purposes following. He divided the trust estate into four equal parts, which equal parts are disposed of by the fifth, sixth, seventh, and eighth items of the will. By the fifth item one-fourth thereof was devised in trust for the daughter Annie for life, "for her sole and separate use, free of all marital right and control whatsoever, and after her death in trust absolutely for her children, subject as thereinafter stated." The second paragraph of this clause provides:

"Should Annie die without leaving a child or children living at her death, or should such child or children all die within twenty-one years of Annie's death, then I give and devise said one fourth to Mattie L., John and Bertha upon the same trusts, and the same extent, and in the same manner, as I have provided for them in the Sixth, Seventh and Eighth clauses of this my will." The third paragraph of this clause provides: "Annie's children to enjoy the interest and income of said one-fourth during said twenty-one years."

It will thus be seen that in the first paragraph of the fifth clause his daughter Annie was given a life estate in trust in one-fourth part of the residuary estate, and after her death absolutely for her children, subject to the conditions and contingencies contained in the second paragraph of said clause. It is true that the language used in the latter part of the first paragraph of this clause is, "And after her death in trust absolutely for her children subject as hereinafter stated." The words "in trust" do not apply to the absolute estate given to her children, but are intended to apply so as to continue the trust for a subsequent period of 21 years from Annie's death, and in further trust in the event the limitation over becomes effective, which limitation is that all of the...