Davis v. Mercantile Trust Co.

• Decision Date: 15 February 1955
• Docket Number: No. 77,77
• Citation: Davis v. Mercantile Trust Co., 111 A.2d 602, 206 Md. 278 (Md. 1955)
• Parties: Liselotte Hollister DAVIS, a minor, et al. v. MERCANTILE TRUST COMPANY et al.
• Court: Maryland Court of Appeals

Page 278

206 Md. 278

111 A.2d 602

Liselotte Hollister DAVIS, a minor, et al. v. MERCANTILE TRUST COMPANY et al.

No. 77.

Court of Appeals of Maryland.

Feb. 15, 1955.

Rehearing Denied March 16, 1955.

George Ross Veazey and Clayton A. Dietrich, Baltimore (Markell, Veazey & Gans, Baltimore, on the brief), for Liselotte Hollister Davis et al.

Franklin G. Allen, Baltimore (Piper & Marbury, Baltimore, on the brief), for Cohen, guardian etc.

Edmund P. Dandridge, Jr., Baltimore (Venable, Baetjer & Howard, Baltimore, on the brief), for Louis Cohen, guardian George Marion Sisk.

Before BRUNE, C. J., and DELAPLAINE, COLLINS, HENDERSON and HAMMOND, JJ.

HENDERSON, Judge.

On a bill filed by trustees for the construction of the will of S. Griffith Davis, deceased, it was held that George Marion Sisk is entitled to a share in the income of the trust created therein for certain relatives including the seven great-nephews and great-nieces of the testator, and that Sandra Lee Davis, a great-niece born out of wedlock after the execution of the will but legitimated after the testator's death was not entitled to a share. Appeals were taken by four of the great-nephews and great-nieces and by Sandra Lee Davis, through their respective guardians ad litem.

By item 4 of his will, Dr. Davis left the entire residue of his estate in trust, and provided that the net income therefrom should be paid to five brothers and sisters and six nephews and nieces named therein and to 'the seven children of my nieces and nephews' without naming them. The scheme of this item was to allocate a specific number of shares in the income to each taker in such manner that each brother and sister would receive four shares and each niece and nephew two shares, except that Steward Griffith Davis, a nephew, would receive only one share. This accounted for a total of thirty-one shares. It was then provided that the trustees should pay 'To each of the seven children of my nieces and nephews one share thereof, in consequence of which if all of the above named beneficiaries are living at the time of my death the income of my estate will be divided into thiry-eight shares divisible as indicated above. Upon the death of any beneficiary his or her share of the net income shall cease. As a result of this plan the number of shares will continue to decrease as successive deaths occur with a consequent increase in the amount of income payable to each share. Upon the death of my brothers and sisters and my nephews and nieces, the income from my estate will eventually be divisible into seven shares, one of which will be payable to each of the seven children of my said nephews and nieces. When the youngest of said seven children of nieces and nephews attains the age of twenty-one years, assuming that my brothers and sisters and my nephews and nieces, have all died, the trust will terminate and the entire trust estate is to be equally divided among the seven children of my nieces and nephews, the child or children of any deceased child to take the parent's share per stirpes. Should any of the children of nieces and nephews (great-nieces or great-nephews) die without leaving issue, the share of such great-niece or great-nephew shall be included in the trust share of the survivors.' The will was executed on December 24, 1941, and the testator died on April 21, 1943.

The Chancellor found that when the testator made his will all of the named brothers and sisters and nephews and nieces were living, and there were six living infants, the children of a nephew or niece. These were the four children of Dr. Edward Hollister Davis, by his first marriage, and the two children of Martha D. Jay Galajikian. There was also living at the time of the execution of the will a child, George Marion Sisk, who resided in the household of the testator's nephew, Steward Griffith Davis.

It was shown that Steward Griffith Davis and his present wife met in Phoenix, Arizona in February, 1939. Mrs. Davis, who was then Esther Lee McCann Sisk, wife of Marion Sisk, had separated from her husband and gone to Phoenix from Washington, D.C., in 1938, with her infant son George Marion Sisk, who had been born on March 14, 1935. Shortly after her meeting with Steward Griffith Davis, they began to live together and to hold themselves out as man and wife. George Marion Sisk was a member of this household and was held out to friends and neighbors as George Marion Davis. Beginning in 1939, both Steward Griffith Davis and his ostensible wife corresponded with the testator, who sent them funds from time to time. In this correspondence they each mentioned George Marion and referred to him as their son. Mrs. Davis testified that she saw letters from the testator in which he alluded to George Marion. In 1940 they moved to Texas. Subsequently, in November, 1942, a daughter named Sandra Lee was born to the parties. Mr. Davis testified that Sandra Lee is the only child of his own blood he has ever had. In 1945 Mrs. Sisk obtained a divorce from her husband, Sisk, and in 1946, she married Steward Griffith Davis in New Orleans, La.

The guardian ad litem for the four children of Dr. Edward Hollister Davis, a nephew of the testator, contends that the Chancellor erred in holding that George Marion Sisk was entitled to a share in the accumulated and future income of the fund. It is conceded that the claimant was not in fact related to the testator in any way and was not a child of his nephew, Steward Griffith Davis, although, as the Chancellor found, the testator knew of his existence and 'probably believed that George Marion Sisk was the blood child of his nephew.' It is contended that George Marion was not sufficiently identified as an object of the testator's bounty and in any event cannot satisfy the condition of being a child of a nephew. It is further contended that he is barred from taking by reason of the misrepresentation as to his true status. The guardian ad litem for Sandra Lee Davis contends that there was a class gift to the children of nephews and nieces in which she can share by reason of her birth before the death of the testator. It is further contended that she is not disqualified by the fact that she was then illegitimate, in view of her subsequent legitimization.

On the point of identification, the Chancellor's finding that the testator was aware of the existence of George Marion is supported by the evidence, and we think it is clear that the testator had him in mind as one of the seven children who would take, although deceived as to his true status. The will not only allocates one share out of the total of thirty-eight shares to 'each of the seven children', without provision for possible enlargement of the number, but allocates the total of thirty-eight shares, necessarily including the seven shares, to 'all of the above named beneficiaries', although in fact the seven children were not named. For purposes of identification the objects of a gift are to be determined as of the date of the will and not as of the death of the testator. Darden v. Bright, 173 Md. 563, 572, 198 A. 431, and cases there cited. The will was evidently drawn by a competent lawyer and there is no reason to suppose that the use of the number seven was inadvertent. It is only by counting George Marion that the numerical specification can be satisfied.

We see no basis for the contention that this is a class gift. In Evans v. Safe Deposit & Trust Co., 190 Md. 332, 340, 58 A.2d 649, 653, it was said: '* * * the Jarman definition of a class gift [citing 1 Jarman, Wills (6th Ed.) p. 262] * * * [is] predicated on the intention of the testator to make a gift to 'a body of persons uncertain in number at the time of the gift, to be ascertained at a future date.' Without such an intention, there is no class and the lore of class gifts * * * is irrelevant. Cf. Restatement, Property, § 279, comment b. The 'antithesis' of a class gift 'is a gift to an individual either by name or by some description sufficiently explicit to permit the donee to be identified as the particular individual for whom the gift was intended'. Boulden v. Dean, 167 Md. 101, 106, 173 A. 26, 28.' See also Miller, Construction of Wills, § 68.

In Jarman, Wills (8th Ed.), p. 419, it is said: 'If the testator refers to a number of children in such a way as to show that he has certain individuals in his mind, they take as personae designatae, and not as a class; as where he gives a sum 'to be divided between the six children of A." Again (p. 449) it is said: 'And if a testator after a gift to 'children', proceeds to name them, or if he specifies their number, as by giving 'to the five children of A', this is a designatio personarum, and is a bequest to those who are named, or to the five in existence at the date of the will * * *.' These statements may be compared with the rule announced in the Restatement, Property, sec. 280, comment c: 'When a conveyance in describing the takers thereunder, uses a descriptive term [such as children] * * * and also states the number of takers, and the number so stated is the total number of those who fit the descriptive term at the time of the execution of the conveyance, then, unless a contrary intent of the conveyor is found from additional language or circumstances, the conveyance is construed to make a gift to individuals distributively. This form of limitation effectively identifies the intended takers.'

These authorities would seem to effectively dispose of the contention of the guardian ad litem of Sandra Lee that this is a class gift, and it is unnecessary to discuss the contention as to her legitimacy. George Marion, however, is sufficiently identified as one of the designated seven, and the crucial question is whether this designation can prevail over the description as 'child' of a nephew or niece. We find no occasion to ascribe an artificial meaning to the word 'child', so as to include a putative step-child within...