Godwin v. Banks
| Decision Date | 01 April 1898 |
| Citation | 40 A. 268,87 Md. 425 |
| Parties | GODWIN et al. v. BANKS et al. (two cases). CULBRETH v. GODWIN et al. |
| Court | Maryland Court of Appeals |
Appeals from circuit court of Baltimore city.
Bill by Anna and Sara Godwin against Margaret Godwin and others to partition land and construe a will. A decree was rendered from which complainants and defendant Richard S. Culbreth permanent trustee, and defendants Margaret Godwin and certain others, appeal. Affirmed.
Argued before MCSHERRY, C.J., and BOYD, BRISCOE, ROBERTS, PAGE, and PEARCE, JJ.
Schmucker & Whitelock, for Mary Godwin and others. Richard S. Culbreth for permanent trustee. John P. Poe, for Anna Godwin and others. Wm. Pinkney Whyte, for Mrs.
Jacobi. Arthur Geo. Brown and Geo. Stewart Brown, for Banks and others. Fielder Slingluff, for Harry Slingluff.
The questions to be considered in the record now before us arise upon the following facts: Daniel B. Banks, by his will, probated February 9, 1875, among other things devised and bequeathed to his son, Andrew Banks, all the residue of his real and personal estate, in trust as to one-half thereof, for his daughter Margaret W. Dorsey, and as to the other half thereof, for his daughter Anna W. Banks, during their respective lives, with remainder to their respective issue living at their death, per stirpes; and then made the following provisions: Anna W. Banks subsequently became Anna W. Godwin, and died in 1890, leaving surviving her six children, one of whom, W. Frank Godwin, died in 1896, before reaching twenty-one years of age, and without issue. Anna and Sara Godwin, two of the remaining five children, then filed a bill in the circuit court of Baltimore city against the other three of said children, who were infants, and against sundry other persons, who were, and still are, the heirs at law of Daniel B. Banks at the time of W. Frank Godwin's death, asking for a partition into six equal parts of the whole share which had been allotted to their mother, Anna W. Banks, for life, under the will of Daniel B. Banks, with limitations over as set forth; and that five of said six parts be allotted to the five surviving children, and the remaining one-sixth part be set aside as the share of W. Frank Godwin, deceased, to be dealt with as thereafter determined by the court. The bill also prayed that the will of Daniel B. Banks, so far as related to the said executory devise over, might be construed by the court, and that, if the said executory devise over should be held valid, said one-sixth part should be sold, and the proceeds divided among the parties entitled according to their respective interests. Andrew Banks had applied in 1889, in the circuit court for Baltimore county, for the benefit of the insolvent law, and Richard S. Culbreth, having been appointed his permanent trustee in insolvency, was also made a party defendant to these proceedings, and all the defendants have answered. Richard S. Culbreth claims that the devise over was valid, and that the interest of Andrew Banks in said one-sixth part passed to him, as permanent trustee, by operation of section 2 of article 47 of the Code of Public General Laws of Maryland. Andrew Banks also claims that the devise over was valid, but claims that his interest in said one-sixth part does not pass to his trustee in insolvency, but rests in the said Andrew Banks absolutely, and in his own right, free from all debts owing by him prior to his petition in insolvency, and free from the control of the insolvent trustee appointed by said court; and he relied upon his discharge in insolvency, a copy of which was filed with his answer. The other adult defendants admitted the allegations of the bill, and the infant defendants, by their guardian ad litem, answered, contending that the executory devise over is void, and that upon the death of W. Frank Godwin intestate, and without issue, his share devolved upon the remaining children of Anna W. Godwin. On proof taken, the court decreed the partition prayed, and, construing the will of Daniel B. Banks, also decreed that the children of Anna W. Banks, under the said will, took contingent remainders in fee, which became vested upon the death of their mother, but which were subject to be devested by death under age, and without issue; and that the remainder of W. Frank Godwin was so devested by his death under age, and without issue; and that the share and interest of Andrew Banks, as one of the heirs at law and distributees of his father, in the share of said W. Frank Godwin, passed to and vested in Andrew Banks in his own right, and not in his trustee in insolvency. From this decree three appeals were taken,--one by Anna and Sara Godwin, the plaintiffs below; one by Richard S. Culbreth, the insolvent trustee; and one in behalf of the infant defendants, by their guardian ad litem. These three appeals have been brought here in one record, and we shall consider all the questions arising therein in their order of presentation; but before doing so it may be stated that after the death of W. Frank Godwin, Richard S. Culbreth, as permanent trustee of Andrew Banks, filed a petition in the insolvent proceedings in the circuit court for Baltimore county, setting up his claim as such trustee to the interest of Andrew Banks in the share of said W. Frank Godwin, and praying that Andrew Banks be required to file a supplemental schedule of assets which should include said interest. Margaret W. Dorsey at the same time filed a petition in said insolvent proceedings, alleging that she had recovered a judgment in the circuit court for Howard county, in 1889, against Andrew Banks, for over $17,000, prior to his application in insolvency, which judgment was still unsatisfied, and a copy of which had been duly entered in Baltimore county; and that the interest of said Andrew Banks had passed to his trustee in insolvency, subject to the lien of her said judgment; and she prayed that said lien be recognized and established, and its validity and priority be allowed. These two petitions were, by order of court, consolidated, and Andrew Banks demurred to each of them. A pro forma order was, by agreement, passed, dismissing these petitions, and from that order two appeals in one record have been sent up. As a matter of convenience, the questions involved in these appeals were argued together with those arising upon the record now before us, but they will be disposed of hereafter in their proper place.
These cases have been argued by the numerous counsel engaged therein with great zeal and with marked ability, and we have given to the consideration of these arguments careful and patient investigation and consideration.
1. We shall first consider the fourth point relied on by the appellants in this record, who were plaintiffs below, as that contention, if sustained, would dispose of all the questions involved in both records. Their contention is that the third word of the clause which attempts to create the executory devise over--the word "any"--should be read "all," thus making the clause read as follows "In case all of the children of any of my daughters shall die before attaining the age of twenty-one years, and without issue, it is my will that the share of my estate devised and bequeathed to them respectively, shall pass to and devolve upon such persons as by the then existing laws of Maryland would take the same as my heirs at law or distributees," and they maintain that by this means "full effect and an harmonious interpretation can be given to all the clauses of the will in accordance with the manifest and general intention of the testator"; and they assert this manifest and general intention to be to provide: First, for Anna during her life; second, for such of her offspring and their descendants as should survive her; and third, for his heirs at law, in the event of the death of all of Anna's children under age, and without issue. We should not hesitate to make this change of language if we could agree with appellants as to the general intent of the testator, and the result of the proposed change...
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