Henderson v. Henderson

• Decision Date: 28 June 1917
• Docket Number: 55.
• Citation: Henderson v. Henderson, 131 Md. 308, 101 A. 691 (Md. 1917)
• Parties: HENDERSON et al. v. HENDERSON et al.
• Court: Maryland Court of Appeals

101 A. 691

131 Md. 308

HENDERSON et al. v. HENDERSON et al.

No. 55.

Court of Appeals of Maryland

June 28, 1917

Appeal from Circuit Court of Baltimore City; H. Arthur Stump, Judge.

"To be officially reported."

Suit between Virginia May Henderson and others and Catherine E Henderson and others. From the decree entered, the former appeal. Reversed and remanded.

Argued before BOYD, C.J., and BRISCOE, BURKE, PATTISON, URNER STOCKBRIDGE, and CONSTABLE, JJ.

Raymond S. Williams and Arthur W. Machen, Jr., both of Baltimore (Slingluff & Slingluff and A. Dana Hodgon, all of Baltimore on the brief), for appellants.

C Morris Harrison, of Baltimore (Robert L. Gill, of Baltimore, on the brief), for appellees.

URNER J.

The will of Virginia C. Henderson, a resident of the city of Baltimore, who died in the year 1892, created a trust of a portion of her estate in favor of her daughter, Virginia M. Henderson, for life, and a separate trust of the residue of the estate for the equal benefit of her sons, Henry C. Henderson and George B. Henderson for their respective lives. It was provided that upon the death of the daughter the estate held in trust for her during her life should go to her issue living at the time of her death who might attain the age of 21 years, but if no such issue should survive, then the property should vest in her two brothers already named as tenants in common. There is a provision also that upon the death of either of the two sons the half of the residuary estate held in trust for his benefit should go to his issue who might reach the age of 21 years. The clause to be construed in this case then follows:

"But in case either of my sons mentioned in this article of my will shall depart this life, without leaving a child or children, or descendant or descendants thereof, living at the time of his death, or in case he should leave a child or children, or descendant or descendants thereof living, at the time of his death, and such child or children, and descendant or descendants shall all subsequently depart this life, under twenty-one years of age, and without issue living, at the time of his, her or their respective deaths, then in trust, that the one moiety or half of the estate or property in this article of my last will mentioned shall go to and become the property of my remaining son, and his heirs, executors, administrators and assigns forever."

Virginia M. Henderson is still living. George B. Henderson died in the year 1902, leaving a son, George Stewart Henderson, who is now 25 years of age. Henry C. Henderson died in March, 1916, without issue, and the question to be determined relates to the proper disposition of the portion of the estate in which he had a life interest. It is claimed in its entirety by George Stewart Henderson, as the sole surviving issue of his deceased father, on the theory that it has passed to him upon his uncle's death without issue, in view of the provision of the will that in such a contingency the property should go to the "remaining son" of the testatrix, "and his heirs, executors, administrators and assigns forever." This theory is opposed by the testatrix's daughter, Virginia M. Henderson, who asserts that, as her brother George B. Henderson was not living when the life estate of her brother Henry C. Henderson expired, the former did not answer to the description of the "remaining son" to whom, and his heirs, executors, administrators, and assigns, the estate in remainder was devised and bequeathed, and that consequently a condition of intestacy exists as to that portion of the estate, as a result of which it has vested equally in herself and her nephew as the decedent's only next of kin and heirs at law.

The decision of the question thus presented depends upon the effect to be given the word "remaining" in the clause we have quoted. The nephew's contention is that it was intended to be understood in the sense of "other"; while the aunt's theory is that it was used as the equivalent of "surviving." If the former interpretation is adopted, and the limitation is construed as being in effect to the "other" son upon the death of one without issue, it is assumed and urged that no contingency of survivorship prevented the vesting of the remainder in the other son prior to the period of his brother's death. But if the term "remaining" is interpreted as "surviving," then the vesting of the remainder in either son would depend upon his actually surviving the son who died without issue.

The will provides that in the event just indicated "then" the designated portion of the trust estate should "go to and become the property of" the "remaining son." This strongly suggests that the vesting was to be upon the basis of a status existing at the time when the contingency of the death of a son without issue occurred. The word "remaining" involves the idea of continuance in the same state or position. Century Dictionary; Webster's New International Dictionary. The son in whom the interest in remainder was intended to vest on the occurrence of the contingency mentioned was the son then "remaining." A son who had previously died could not answer to that description....