Gutman v. Safe Deposit & Trust Co. of Baltimore, 154

• Decision Date: 23 May 1951
• Docket Number: No. 154,154
• Court: Maryland Court of Appeals
• Parties: GUTMAN v. SAFE DEPOSIT & TRUST CO. OF BALTIMORE et al.

Page 39

198 Md. 39

81 A.2d 207

GUTMAN v. SAFE DEPOSIT & TRUST CO. OF BALTIMORE et al.

No. 154.

Court of Appeals of Maryland.

May 23, 1951.

John J. O'Connor, Jr., Baltimore (Howard A. Sweeten, Baltimore, on the brief), for appellant.

J. Elmer Martin, Baltimore, for Harriet F. G. Hutzler.

Bernard R. Youngman, Baltimore, for Gutman and others.

Before DELAPLAINE, COLLINS, GRASON, HENDERSON and MARKELL, JJ.

GRASON, Judge.

Morton Gutman died July 5, 1948. Surviving him were two children: Harriett F. Gutman Hutzler, a child by his first marriage, and Leonard B. Gutman, a child of his second wife by a former marriage, whom he adopted by decree of the Circuit Court of Baltimore City dated May 18, 1928. Harriett claims, as the only child by blood, the one-fifth share of the income of the corpus of the trust estate now held by trustees under the will of Frederica Gutman, deceased. Leonard contends that as an adopted child of Morton Gutman he is entitled to share equally with Harriett in the income and the corpus.

Frederica Gutman was the mother of Morton Gutman. She died April 4, 1923, leaving surviving her five children, one of whom was Morton, Gutman. She left a will dated the 16th day of July, 1922, which was probated in the Orphans' Court of Baltimore City on April 17, 1923. The clause of that will with which we are especially interested is as follows:

'I give, devise and bequeath all the rest, residue and remainder of my estate unto my daughter, Florence, and The Safe Deposit and Trust Company of Baltimore, their survivor and successor in the trusts hereby created; In Special Trust and Confidence to take possession thereof, to collect the incomes therefrom and after paying thereout all legal and proper charges, * * *

'To divide the balance of said income equally among all my children, the descendant or descendants of a deceased child shall take per stirpes the parent's share; at the death of the survivor of all my children, the survivor or successor of my said trustees shall divide my estate into five equal parts, and shall pay and transfer equally, per stirpes and not per capita, one of said parts to the child or children to each of my deceased children; the descendant of a deceased grandchild to take per stirpes a parent's share; if any one or more of my said children die without leaving any child or children or descendants, of such then living, the share or shares of the one so dying, without leaving any surviving child, children or descendants, shall be paid or transferred equally by said trustees' survivor or successor, per stirpes and not per capita, among the child or children of any other deceased child or children, the descendants of a deceased grandchild to take per stirpes a parent's share.'

The trustees under the will accepted the trust and have administered it ever since. They filed a bill in the Circuit Court of Baltimore City against Herbert Gutman and others, asking for a construction of Mrs. Gutman's will. The chancellor decreed that Leonard B. Gutman did not take under the will, and that the trustees should pay over the income from the one-fifth share to Harriett F. Gutman Hutzler, and Leonard B. Gutman appeals to this court.

By the Acts of 1947, Chapter 599, the Legislature repealed all laws pertaining to adoption, and enacted new laws pertaining thereto. It also, by said Act, added section 139A to Article 93 of the Code. This section provides: '* * * there shall be no distinction between a legally adopted child and a child by birth, to the end that such adopted child shall take from, through and as a representative of its adopting parent or parents and the lineal or collateral kindred of such adopting parent or parents in the same manner as a child by birth * * *.' In this opinion we will discuss one question only, viz.: whether the Act of 1947, Chapter 599, is retrospective.

In the appellant's brief it is stated: 'We readily concede, if Morton Gutman had died prior to June 1st, 1947, that under the law as it existed from the time Testatrix drafted her will, until June 1, 1947, Leonard B. Gutman, the adopted son, could not have claimed any interest in the estate of the...