Burt v. Gill

• Decision Date: 15 March 1899
• Citation: 42 A. 968,89 Md. 145
• Parties: BURT et al. v. GILL et al.
• Court: Maryland Court of Appeals

42 A. 968

89 Md. 145

BURT et al. v. GILL et al.

Court of Appeals of Maryland

March 15, 1899

Appeal from circuit court of Baltimore city; Henry Stockbridge Judge.

Action by Jane Henderson Gill and another against Alfred P. Burt, as trustee under the will of Gustavus P. Henderson, and another. From a decree for complainants, defendants appeal. Affirmed.

Argued before MCSHERRY, C.J., and PAGE, ROBERTS, PEARCE, FOWLER BRISCOE, and SCHMUCKER, JJ.

Thomas M. Lanahan and Frank Gosnell, for appellants. E. N. Rich and Wm. S. Bryan, Jr., for appellees.

SCHMUCKER J.

This is an appeal from a pro forma decree of the circuit court of Baltimore city, passed in an amicable proceeding to procure a construction of the will of the late Gustavus P. Henderson. The question at issue is the proper disposition of that portion of the income of the estate given in trust by the testator for his daughter, Jane, which accrued before she reached the age of 18 years, and was not consumed in her support and education. The testator was a widower when he made his will and when he died. He left surviving him no issue except his infant daughter, Jane, then about 8 years old, who subsequently married her coappellee, Robert L. Gill. Mr. Henderson, after remembering in his will various relatives and friends, made provision for his infant daughter by giving to three trustees, of whom the appellant is the only one now acting, the sum of $100,000, upon the following trusts, i. e.: "In trust to invest the same in good irredeemable ground rents in the city of Baltimore, or other safe and reliable securities or investments, in their discretion, and apply the rents, interest, and income derived therefrom, or so much thereof as may be necessary, to the support, maintenance, and education of my daughter, Jane Henderson, until she shall attain the age of eighteen years and thereafter to pay the net amount of said rents, income and interest unto my said daughter for and during her natural life, for her own separate use and benefit, and so that the same shall in no manner be liable for the debts, contracts, or engagements or subject to the control of any husband she may have; and from and immediately after the death of my said daughter in trust to pay, transfer, grant, convey, and deliver the whole amount of said trust funds and property unto the child, children, and descendants of my said daughter whom she shall leave surviving her, to be equally divided amongst them, if more than one, per stirpes, and not per capita, in absolute interests, free from said trust." Then follows a devise over in similar terms to the testator's two sisters in default of surviving issue of the daughter. The trust fund yielded, during the time the daughter was under 18, more income than was required for her support and education. The trustee invested the unused income, and from time to time made reports of it to the circuit court, under whose supervision the trust was administered, and he now holds it subject to the event of this suit. The pro forma decree appealed from determined that this unused income belonged absolutely to the testator's daughter, Mrs. Gill, as the life tenant of the trust estate; and the trustee appealed that the question at issue might, for his more complete protection, be passed upon by this court.

In order to ascertain the intention of a testator, the court will look first to the contents of the will itself, and especially to the language of the particular portion of it in reference to which the doubt exists. If the intention cannot be clearly made out from the language of the will, taken in its usual and proper acceptation, then the peculiar situation of the testator and the relations subsisting between him and the objects of his bounty will be considered in connection with the language of the will, and it will be interpreted with the aid of the light thus thrown upon it, in accordance with the accepted canons of construction. Jones v. Sothoron, 10 Gill & J. 191; Branson v. Hill, 31 Md. 188; Henderson v. Henderson, 64 Md. 188, 189, 1 A. 72. The diversity in the situation and purposes of testators, as well as in the structure and phraseology of their wills, is so great that, although the authority of decisions is not disregarded in the interpretation of wills, adjudged cases become of less authority, and are more hazardous of application, than in any other branch of the law, and the courts are strongly disposed to confine themselves to the particular will under consideration in the attempt to ascertain the intent of its author. Douglas v. Blackford, 7 Md. 22. Looking at the contents of the will before us, we find that in disposing of the income to be produced by the trust fund before the daughter became 18 years of age it directs the trustees to "apply the rents, interest, and income" to her support and education, but at the same time it gives to them authority, in their discretion, to apply less than the entire income to that purpose. This authority to apply less than the whole income to her support is not the primary direction, but is rather in the nature of a secondary and alternative one, and it should not be permitted to obscure the purpose of the testator to devote the income of the estate to the use of his daughter if we find that to have been his...