Grace v. Continental Trust Co.

• Decision Date: 16 January 1936
• Docket Number: 93,94.
• Citation: Grace v. Continental Trust Co., 182 A. 573, 169 Md. 653 (Md. 1936)
• Parties: GRACE ET AL. v. CONTINENTAL TRUST CO. ET AL. [*] EARECKSON ET AL. v. CONTINENTAL TRUST CO. ET AL.
• Court: Maryland Court of Appeals

182 A. 573

169 Md. 653

GRACE ET AL. v. CONTINENTAL TRUST CO. ET AL. ^[*]

EARECKSON ET AL. v. CONTINENTAL TRUST CO. ET AL.

Nos. 93, 94.

Court of Appeals of Maryland

January 16, 1936

Appeals from Circuit Court of Baltimore City; Joseph N. Ulman, Judge.

Suit by the Continental Trust Company, substituted trustee for the estate of William A. Thompson, deceased, and others against Mary Eareckson Grace and Ethel D. Eareckson, and also against F. Leif Eareckson and others, for a construction of the will. From an adverse decree, the defendants prosecute separate appeals.

Reversed and remanded.

Argued before BOND, C.J., and URNER, OFFUTT, PARKE, MITCHELL SHEHAN, and JOHNSON, JJ.

James Morfit Mullen, of Baltimore, for appellants Mary Eareckson Grace and Ethel D. Eareckson.

R Contee Rose, of Baltimore, for appellants F. Leif Eareckson Wm. T. Eareckson, Matilda G. Eareckson, S. Groome Eareckson Wm. A. Eareckson, Morris T. Eareckson, and Kate R. Eareckson.

Arthur W. Machen, Jr., and H. Vernon Eney, both of Baltimore (Armstrong, Machen & Allen, of Baltimore, on the brief), for appellees.

OFFUTT Judge.

On October 17, 1918, William A. Thompson, a resident of Baltimore City, executed a valid will disposing of a sub stantial estate which included both real and personal property. On September 10, 1920, he died, the will was probated, and letters issued to Frederick C. Heighe, his executor and trustee.

The provisions of the will pertinent to the questions presented by this appeal are these: "I direct that the net income from my Estate be applied to the maintenance of my wife Florence V. Thompson during her life, my desire being that she be supported in the same style or manner as at present or as near the same as possible, for her life time. * * * From and after the death of my said wife, I direct that my estate so held in Trust be divided equally between my brothers and sisters or their descendants as the case may be per stirpes not per capita."

At the time the will was executed the nearest living relative of his blood was his sister, Mary R. Weedon, who died on February 20, 1924. His only brother, Samuel Groome Thompson, had died on February 14, 1918, another sister Sarah Matilda Eareckson, died June 22, 1892, and his only other sister, Elizabeth M. Rankin, had died December 25, 1897. His wife, the life tenant, Florence V. Thompson, died January 1, 1935.

On September 28, 1921, Mary R. Weedon executed a valid will in which she undertook to dispose of what she assumed was her share of the estate of William A. Thompson remaining after the death of the life tenant. In that will, after several bequests which are not material here, she left the entire residue of her supposed share in her brother's estate, in varying amounts to her nieces and nephews, by far the larger part of it going to the descendants of her sister, Sarah Matilda Eareckson.

In 1930, Frederick C. Heighe, filed in the circuit court of Baltimore City a petition requesting that court to assume jurisdiction of the trust and relieve him of his duties as trustee. The court assumed jurisdiction as prayed and substituted the Continental Trust Company as trustee.

On June 4, 1935, following the death of Mrs. Thompson, the substituted trustee, filed a petition in that case in which it requested the court to pass a decree "construing said Will, determining which of the brothers and sisters of William A. Thompson and which of the descendants of a deceased brother or sister are or were entitled to a share of the property held in trust by your Petitioner and to whom the share of any brother, sister of descendant is now payable or deliverable and fully administering said trust." As a result of subsequent proceedings, the court decreed that the estate of William A. Thompson be divided into three parts, that one part be distributed to the descendants of Samuel Groome Thompson, one to the descendants of Elizabeth M. Rankin, and the third to the descendants of Sarah Matilda Eareckson. The effect of that decree was to exclude the legatees of Mary R. Weedon, as such, from sharing in the estate, and certain of those legatees and Kate R. Eareckson, executrix of the will of Mary R. Weedon, have taken this appeal.

The single question which it presents is whether under the will of William A. Thompson, Mary R. Weedon took a vested interest in his estate which she could dispose of by will. If she did, the estate should have been divided into four parts, one of which would have been distributable to the legatees of Mary R. Weedon; if she did not, her legatees have no interest in the estate, and the trial court properly directed it to be divided into three parts and distributed per stirpes to such persons living at the death of the life tenant as were the descendants of deceased sisters and the brother of William A. Thompson.

The determination of that issue depends upon the meaning to be given the expressions "from and after" and "divided equally between my brothers and sisters or their descendants as the case may be per stirpes and not per capita," which the testator used to dispose of the estate remaining at the termination of the life estate. When the will was executed, he had no brother, for his only brother had died months before, and he had but one sister, for his other two sisters had died many years before. Ordinarily, when one says that he has a brother or a sister, it is assumed that he means a living brother or sister, but the testator could not have meant that for he had but one living sister and no living brother. Because of that situation, the expression is susceptible of several different interpretations; one, that he intended it to include all his brothers and sisters living or dead, and the descendants then living of those who were dead; another, that he meant it to describe a class of persons living at the death of the life tenant which should include his sister if living at that time and the descendants then living of his brother and the sisters who had died prior to the execution of the will; another, that he intended to describe his brother and sisters severally and individually substituting for those who were dead their descendants. In determining which if any of those interpretations should be adopted, in view of the ambiguity inherent in the words, resort may be had to certain rules of construction, which are helpful as the product of common sense and common experience. One is that the whole context of the will must be considered, effect given to every word, and the whole construed so as to harmonize and reconcile its several parts. Miller on the Const. of Wills § 11, and cases there cited. Another is that "The court will put itself in the testator's place, in his armchair; will see the circumstances that he saw; appreciate his surroundings as he appreciated them; and then give to the language he has used in his will the meaning which these circumstances and these surroundings indicate he intended that language to have." Id., § 12. A third is that where the language permits different interpretations, the court will be diligent to ascertain which meaning was intended, in order that the will may prevail rather than fail for uncertainty. 69 C.J. 91. Others are that the will itself is a dictionary from which the meaning of the words used in it is to be ascertained, Miller Const. Wills, p. 84, 28 Laws of England "Wills" § 1259; that nontechnical words are to be taken in their ordinary, proper, and grammatical sense unless it clearly appears that the testator intended to use them in another sense and that sense can be ascertained, Miller Const. Wills, p. 84; that technical words are to be given their correct meaning unless the contrary appears from the context, Id, p. 86, although in determining whether such words were used in their technical sense the knowledge and skill of the draftsman in the use of such terms may be considered.

In defining the policy which should guide the approach of the expositor of a will, Jarman states: "In the construction of wills the most unbounded indulgence has been shown to the ignorance, unskilfulness, and negligence of testators: no degree of technical informality, or of grammatical or orthographical error (a) nor the most perplexing confusion in the collocation of words or sentences, will deter the judicial expositor from diligently entering upon the task of eliciting from the contents of the instrument the intention of its author, the faintest traces of which will be sought out from every part of the will, and the whole carefully weighed together." Jarman on Wills, *p. 326. These rules, naturally, have no binding or exclusive force, but are mere guides to aid in the discovery of what is, wherever the construction of a will is in issue, the supreme law of the case, the intention of the testator. Once that is ascertained, in so far as it is lawful, it must be given effect, and even such settled and established rules of construction as that which declares that the law favors the earliest vesting of estates must yield to it.

Another and perhaps the most important rule, subordinate only to that which recognizes the controlling force of the testator's intent, favors the early vesting of estates.

Turning to the will itself, the primary inquiry is the meaning which the testator intended to attach to the words "from and after" and "my brothers and sisters or their descendants." At the time he executed it, the persons nearest to him by blood or affinity were his wife and his sister, Mrs. Weedon. Mrs. Weedon at that time was seventy years of age, without children or descendants, and Mrs Thompson was sixty-seven years of age. His first concern was to provide an income for his wife which would enable her to live in comfort, and to...