Dulany v. Middleton

• Decision Date: 06 February 1890
• Citation: Dulany v. Middleton, 72 Md. 67, 19 A. 146 (Md. 1890)
• Parties: DULANY ET AL. v. MIDDLETON ET AL.
• Court: Maryland Supreme Court

19 A. 146

72 Md. 67

DULANY ET AL. v. MIDDLETON ET AL.

Court of Appeals of Maryland

February 6, 1890

Appeal from circuit court of Baltimore city.

Argued before ALVEY, C.J., and ROBINSON, STONE, BRYAN, and MCSHERRY JJ.

Alexander S. Larned and A. H. Taylor, for appellants.

Arthur W. Machen, for appellees.

ALVEY C.J.

The bill in this case was filed for the purpose of obtaining a judicial construction of the will of Lambert Gittings, deceased, who died in July, 1887. The will bears date the 30th of June, 1870. At the date of the will, as also at the time of the death of the testator, the heirs at law and next of kin of the testator consisted of two surviving married daughters, Mrs. Middleton and Mrs. Buchanan, and three granddaughters, the children of Mrs. Simons, deceased, the eldest daughter of the testator. Both the married daughters had children living at the date of the will, and at the time of the death of the testator; and the three children of Mrs. Simons, namely, Eleanor A., Louisa, and Fanny Simons, were all minors at the date of the will, but were married, and had children, at the time of the death of the testator; and the two daughters, with their husbands and children, and the three granddaughters, with their husbands and children, are all made parties defendants to the bill.

The testator was possessed of a large estate, consisting of both real and personal property; and this estate he devised and bequeathed to three named persons, his sonsin-law, and the survivors or survivor of them, their heirs and assigns, forever,--giving special directions for supplying the place of either of the trustees named, in case of his declining to accept the trust,--to hold the property to the uses and upon the trusts expressed in the will. The same three persons are named as executors as well as trustees. They are directed to pay debts, and funeral and cemetery expenses, etc., and also to pay certain legacies. They are then directed to divide into three equal parts the wines, furniture, and pictures, and allot the parts to the daughters and granddaughters, respectively; the one part being given to the three granddaughters collectively. They are also directed to pay over to his daughters, Mrs. Middleton and Mrs. Buchanan, and his eldest granddaughter, Eleanor A. Simons, the sum of $5,000, "to be applied by them, in their best judgment, as my bequest for charitable and religious purposes, say for the promotion of the Christian religion, without prejudice or regard to sect, and for or towards the relief of the poor and destitute." They are next directed to set apart, and safely invest, in their names, as trustees, or retain invested from present investments, the sum of $10,000, or so much thereof as may be necessary, etc., and from the interest or dividends thereof to pay to his (the testator's) sister Harriet Gittings, during her life, an annuity of $100, and to his sister Louisa E. Littig, during her life, an annuity of $200, and to his brother-in-law, Richard Croxall, during his life, or to his daughter, Eleanor A. Jamison, for his support, an an nuity of $300; each of which annuities to cease on the death of the annuitants, respectively; and, upon the death of each of said annuitants, so much of the principal sum of $10,000 as shall have been necessary to produce the annuity of the deceased annuitant shall revert and go back, with the future products thereof, to be divided into three equal parts, the one-third to his three grandchildren, the children of Mrs. Simons, deceased, to be equally subdivided between them, and to their issue; one-third to his daughter Mrs. Middleton, and her issue; and the other third to his daughter Mrs. Buchanan, and her issue; to be held in trust for their benefit in the same manner as his other property thereinafter devised to them, or for their benefit, subject, however, to certain payments to be made from the principal sum of $10,000. The testator then directs that the trustees shall hold in trust the whole residue of his estate and property, together with the reversion of the sum before mentioned, after the annuities provided for, and that they shall divide the whole of such estate devised in trust into three equal parts, having reference to the value of each part. He then makes provision for the allotment of such three parts among his children and grandchildren, giving the first choice of parts to the grandchildren, as representing their deceased mother, Mrs. Simons, the second choice to Mrs. Middleton, and Mrs. Buchanan to take the remaining third part; and, in case of either of the daughters or the grandchildren failing to make choice, the trustees, if necessary, to choose for her or them, as the case may be. The testator then proceeds to declare the nature of the trusts, and the limitations of the estate and interests of the children and grandchildren in the property devised and bequeathed to them; and he does so in these terms: "And, upon such choice being made, it is my will that my said trustees, their survivors, &c., shall hold each part (being, in the cases of my two daughters, Harriet and Henrietta, each one-third, and that of my three Simons grandchildren, collectively or together, one-third, or a subdivided one-ninth part to each of the latter) to the separate use and benefit of my aforesaid two daughters and granddaughters, respectively, according to the parts chosen by them, as the same shall be allotted in the above or before mentioned division, free from any control of any present or future husbands, for the term of their natural lives, the annual product or avails thereof to go and inure to my aforesaid daughters and granddaughters Simons, respectively, and, after each of their deaths, respectively, the share of each to be held by my trustees, as aforesaid, to the use of the children of my aforesaid daughters and granddaughters, and their heirs, executors, and administrators." He then provides for the event of death of either of his two surviving daughters, and also of either of his three grandchildren, without leaving issue, with cross-executory limitations; "or again," in the language of the will, "in the case of my grandchildren Simons, if they should all die before reaching the age of thirty, without leaving issue, upon the death of the last survivor, their father, if without receipt of pay as an officer, or retired officer, of the army, shall be entitled to the receipt and enjoyment of one-half of the income during his life, and the residue or whole, as the case may be, with the principal, shall go equally to their aforesaid two aunts, Mrs. Middleton and Mrs. Buchanan, and their issue," etc. The event of death has not occurred with either of the devisees and legatees, and therefore there is no question presented here upon these crossexecutory limitations; and of course we are not to be understood as deciding any question in volved in them that may affect parties who may ultimately claim thereunder.

These limitations of the interests of the cestuis que trustent are followed by restrictions upon the power of alienation, lien, or incumbrance of the property, with a qualified right to authorize the transfer and reinvestment of the property by the trustees, with a view to a more safe and beneficial investment thereof, during the continuance of the trusts. Then follows the last clause of the will, the terms of which seem to have given rise to what is regarded as a serious difficulty in its construction, and as to the effect of that clause upon the devises and limitations contained in other clauses of the instrument. The last clause is as follows: "And it is further my will and desire that the trusts raised and expressed in this, my last will and testament, shall cease and determine after the deaths of my two daughters, Harriet S. G. Middleton and Henrietta G. Buchanan, during whose lives I wish them to continue. Upon the event of my grandchildren respectively arriving at the age of thirty, (30,) so far as regards such grandchildren and their respective shares,--that is to say, they shall cease and determine, in the case of each grandchild, upon and as she or he reaches the age of thirty, (30,) so far as regards her or his share coming either directly from me, or from her or his mother's proportion of my estate, and that such grandchildren or grandchild, from that period and age, (thirty,) shall hold their respective shares, or her or his share, free and discharged of the said trust to themselves, for the term of their natural lives respectively, and after their deaths to the lawful issue of their bodies, their heirs and assigns, forever, and that the said trustees shall convey the shares of such grandchildren to them in accordance with this direction of my will."

1. Upon the whole will there are several questions raised; and the first is, what is the effect of the bequest of $5,000, to be applied to charitable purposes in the...