Davis v. Mercantile-Safe Deposit & Trust Co.

• Decision Date: 11 June 1964
• Docket Number: MERCANTILE-SAFE,No. 339,339
• Citation: 201 A.2d 373,235 Md. 266
• Parties: Boudinot S. L. DAVIS v.DEPOSIT & TRUST COMPANY et al.
• Court: Maryland Court of Appeals

Page 266

235 Md. 266

201 A.2d 373

Boudinot S. L. DAVIS v. MERCANTILE-SAFE DEPOSIT & TRUST COMPANY et al.

No. 339.

Court of Appeals of Maryland.

June 11, 1964.

William F. Mosner, Towson (Power & Mosner, Towson, on the brief), for appellant.

Daniel H. Honemann, Baltimore (Walter E. Black, Jr., and Hinkley & Singley, Baltimore, on the brief), for appellees Edward Hollister Davis and others.

George Ross Veazey, Baltimore, for appellees Liselotte Hollister and others.

No brief, no appearance for appellees Mercantile-Safe Deposit & Trust Co. and others.

Argued before HENDERSON, PRESCOTT, HORNEY and SYBERT, JJ., and THOMAS J. KEATING, Jr., Special Judge.

HORNEY, Judge.

In Davis v. Mercantile Trust Company, 206 Md. 278, 111 A.2d 602 (1955), where it was held that George Marion Sisk was not entitled (as one of the 'seven children of [the testator's- ] nieces and nephews') to a share of the income from the trust created by the residuary clause of the will of S. Griffith Davis, deceased, for the benefit of certain of his relatives, this Court (per Henderson, J.), in leaving opin the question as to the disposition of the present and future income from such share, because it was not considered below or argued in the briefs, stated (206 Md. at p. 289, 111 A.2d at p. 607):

'[T]here may be a question as to whether it should be divided between the [other] six great-nephews and great-nieces, cf. In Re Sharp [1908] 2 Ch. 190, or between all of the persons entitled to shares. Or there may be an intestacy, as suggested in argument.'

For a time after the receipt of the mandate, the trustees named in the will (and the survivor and/or successor of them) distributed the income from the invalid share equally among the other residuary legatees. Subsequently, when a doubt arose as to whether the income from the share was being properly distributed, the trustees ceased distributing the income therefrom and allowed it to accumulate pending a construction of the will and judicial direction as to its proper disposition. To that end, this proceeding was instituted by the Mercantile-Safe Deposit and Trust Company and others, as trustees under the will, against the heirs at law and next of kin of the testator and their legal representatives.

In his answer to the bill of complaint, Boudinot S. L. Davis, as half brother and one of the next of kin of the testator, alleged, among other things, that the invalid share of income should be distributed as intestate property and suggested that the court should also rule as to the ultimate disposition of the corpus of the trust. Answers were also filed by other parties in interest.

The chancellor, by his decree, declared that there was no intestacy as to the invalid share, ruled that the income therefrom should be divided among the other beneficiaries of the residuary trust, and refused to rule as to the ultimate distribution of the corpus. Boudinot S. L. Davis appealed.

The primary question presented is whether the share of income bequeathed to George Marion Sisk, which was invalidated by judicial determination in Davis v. Mercantile Trust Company, supra, should be distributed to the next of kin as intestate property or to the other income beneficiaries of the residuary trust. We think the income should be paid to the other beneficiaries and we see no reason to rule now as to the ultimate distribution of the corpus.

It is axiomatic that the ascertainment of the intention of the testator is the controlling factor in construing a will. McElroy v. Mercantile-Safe Deposit and Trust Co., 229 Md. 276, 182 A.2d 775 (1962); Reese v. Reese, 190 Md. 311, 58 A.2d 643 (1948); Childs' Estate v. Hoagland, 181 Md. 550, 30 A.2d 766 (1943). If the intention can be satisfactorily ascertained from a reading of the will, further inquiry is not necessary. Atkinson on Wills (2nd ed.), § 146; Page on Wills (Bowe-Parker Rev.), § 30.3; Thompson on Wills (3rd ed.), § 210. If it cannot, the rules of construction may be invoked to ascertain the meaning or intention of the testator as expressed in the will. Judik v. Travers, 184 Md. 215, 221, 40 A.2d 306 (1944).

There is, of course, a general rule of construction to the effect that when a portion of a residuary bequest fails to become operative at the death of the testator, the share thus failing passes to the next of kin as property not disposed of by the will. Church Extension of the Methodist Episcopal Church v. Smith, 56 Md. 362, 398 (1881). See also Abell v. Abell, 75 Md. 44, 63, 23 A. 71, 25 A. 389 (1891); Henderson v. Henderson, 131 Md. 308, 314, 101 A. 691 (1917); Smith v. Baltimore Trust Co., 133 Md. 404, 410, 105 A. 534 (1919); Miller, Construction of Wills, §§ 58, 158. On the other hand, because the rules of construction are utilized only in the absence of explicit or implicit indication by the testator of his intention, this Court has always been disposed to construe a residuary clause so as to prevent intestacy when the application of the above rule of construction would defeat the clear intention of the testator as expressed in his will. Barnum v. Barnum, 42 Md. 251, 311 (1875); Cox v. Handy, 78 Md. 108, 127, 27 A. 227, 501 (1893); Lavender v. Rosenheim, 110 Md. 150, 153, 72 A. 669 (1909); Holmes v. Mackenzie, 118 Md. 210, 215, 84 A. 340 (1912); Ball v. Townsend, 145 Md. 589, 600, 125 A. 758 (1924); Tilghman v. Frazer, 199 Md. 620, 636, 87 A.2d 811 (1952); McElroy v. Mercantile-Safe Deposit and Trust Co., supra, at p. 283 of 229 Md., 182 A.2d 775. See also Miller, op. cit., § 160, where it is pointed out that whether a void residuary bequest passes to the next of kin or goes to increase the other portions of the residuum is a question of intention. For cases in other jurisdictions standing for the proposition that the general...