Holloway v. Safe Deposit & Trust Co. of Baltimore

• Decision Date: 08 July 1926
• Docket Number: 47,48.
• Citation: 134 A. 497,151 Md. 321
• Parties: HOLLOWAY ET AL. v. SAFE DEPOSIT & TRUST CO. OF BALTIMORE. CALOU v. SAFE DEPOSIT & TRUST CO. OF BALTIMORE.
• Court: Maryland Court of Appeals

134 A. 497

151 Md. 321

HOLLOWAY ET AL. v. SAFE DEPOSIT & TRUST CO. OF BALTIMORE.

CALOU v. SAFE DEPOSIT & TRUST CO. OF BALTIMORE.

Nos. 47, 48.

Court of Appeals of Maryland

July 8, 1926

Motion for Reargument Overruled Oct. 7, 1926.

Appeals from Circuit Court No. 2 of Baltimore City; Robert F Stanton, Judge.

"To be officially reported."

Petitions by the Safe Deposit & Trust Company of Baltimore against Grace Suzanne Holloway, an infant, and Marie Calou, guardian of the person and estate of Grace Suzanne Holloway and others, and against Marie Calou, executrix of the estate of John E. Holloway, deceased, and others, for construction of the will of John Q. A. Holloway, deceased, and for the administration of trusts under the will of Susanna Holloway. From the decrees, defendants named appeal. Decrees affirmed in part, and reversed in part, and remanded, with directions.

Bond C.J., and Urner and Parke, JJ., dissenting.

Argued before BOND, C.J., and URNER, ADKINS, OFFUTT, DIGGES, PARKE and WALSH, JJ.

Isaac Lobe Straus and Charles McHenry Howard, both of Baltimore (Joseph C. France, of Baltimore, Leslie E. Burks and J. Paul Schmidt, of Baltimore, on the brief), for appellants.

John B Deming and Edgar Allan Poe, both of Baltimore (Bartlett, Poe & Claggett, Robert R. Carman, Edward P. Keech, Jr., and Henry H. Dinneen, all of Baltimore, on the brief), for appellees.

ADKINS J.

John Q. A. Holloway, by his will dated December 23, 1903, devised and bequeathed one-sixth of the residue of his estate to the Safe Deposit & Trust Company of Baltimore in trust to invest the same in such manner as to said trustee shall seem best, and to collect the income from time to time arising from the investment so to be made by it, and to pay over the net income to his son, John E. Holloway, "so long as he shall live, and at the death of my said son John E. Holloway, in trust to divide the corpus or principal of the property and estate so theretofore held in trust for him among his children and descendants in such portions as my said son shall by last will and testament direct or appoint, but if my said son shall die without having exercised such power of testamentary appointment, then at his death said trustee shall divide the same in equal portions among the children of my said son John E. Holloway, if any he shall have then living, and the then living issue of any child of his who may then be dead, such issue to represent its or their parent in the distribution, and to take only the share or portion to which the parent if then living would be entitled. But if my said son John E. Holloway shall die without leaving children or descendants him surviving, then and in that event, the said trustee shall at his death pay over and deliver absolutely one-third of the corpus or principal of said trust fund and property to my son Edward Lee Holloway, free and clear of all trust, and shall continue to hold the remaining two-thirds thereof in trust in equal shares for my daughter Anna Elizabeth Holloway and my son Clarence J. Holloway, in accordance in all respects" with the terms of trusts created for them in other paragraphs of the will. "With the proviso, however, that in any event if my said son John E. Holloway shall leave a widow him surviving and born in my lifetime, the trustee shall at his death retain for division at her death or remarriage, which ever shall first occur, one hundred thousand dollars of the trust fund and property, and shall only during her life or widowhood, pay over to her at regular stated periods the income arising from said sum of one hundred thousand dollars, which principal sum it shall divide as hereinbefore provided at the death or remarriage of such widow." Susanna Holloway, wife of John Q. A. Holloway, by her will dated March 20, 1907, devised and bequeathed to said trustee in trust for her son, the said John E. Holloway, for life, one-fourth of the residue of her estate, in the same language and with the same remainder as to children and descendants as in the will of her husband, but providing that in case of failure of children or descendants surviving, the trustee should pay over absolutely to her son, Edward L. Holloway, one-sixth part of the trust fund, and continue to hold in trust for her daughter, Anna Elizabeth Holloway, and her son, Clarence J. Holloway, each one-sixth part, the remaining three-sixths parts to be paid over to certain religious associations named as defendants in the bill filed by the trustee. There are three codicils to this will, the last dated October 20, 1911.

John Q. A. Holloway died in January, 1904, and Susanna Holloway in December. 1911. John E. Holloway at the time these wills were executed was living with his wife, Anne McClellan Holloway, whom he married in June, 1899. They lived in Baltimore several years, in New York five or six years, traveled considerably, visited Biarritz, France, several times and settled there in 1905 or 1906, and continued to live together there until the 5th day of May, 1911, when they formally separated, having executed an agreement of separation. There were no children born to them. She survived him, and they were never divorced. In Biarritz he became acquainted with a little girl named Marie Calou, then about 12 years old, to whom he became very much attached. Subsequently Mr. and Mrs. Holloway took an apartment in the house where this girl lived with her grandparents. When she was about 18, in 1908, the illict intercourse between them began. In the early part of 1912, after the death of his mother, they came to Baltimore, where Miss Calou was ill for several months, and in July, 1912, they went to Reno, Nev., with the intention of making that their home, and there Grace Suzanne Holloway was born in September, 1912, as the result of this illict intercourse. Her father promptly made out and filed in the department of vital statistics of that city a birth certificate, giving the name of the child as above, and acknowledging her to be his child. They continued to live as a family in Reno for several years, during which time she was publicly acknowledged by him to be, and generally recognized, as his child.

While living in Nevada John E. Holloway endeavored to obtain a divorce from his wife in order that he might marry Miss Calou, but failed. After about three years' residence in Reno, he moved with Miss Calou and Suzanne to California, where they lived as a family until his death in 1925. There, also, he held out Suzanne as his child, and was in every way an affectionate father. It is contended by appellant that there, too, he complied with the legitimation statute. We shall not stop to discuss the arguments pro and con on this point, as it would add nothing to the strength of appellant's case to hold that legitimation was accomplished a second time, if it had been effected in another state.

On the 24th day of March, 1913, John E. Holloway made a will in which he executed the powers of appointment under the wills of his father and mother in favor of "my beloved daughter, Grace Suzanne Holloway, born to me and Marie Calou, at the city of Reno, county of Washoe, state of Nevada, upon the 23d day of September, A. D. 1912," and appointed Marie Calou as executrix. He left no child or descendant other than Grace Suzanne. On being advised of the death of Holloway, and of his will, the trustee filed a petition in circuit court No. 2 of Baltimore City, which had taken jurisdiction of the trust under John Q. A. Holloway's will, asking for a construction of the language of said will, "in so far as construction may be necessary for the determination of the rights of all parties who may be entitled thereunder"; and that the court determine for whose benefit said share "is now held and/or distributable in view of the death of the said John E. Holloway, leaving a will as aforesaid." And on the same day the trustee filed a bill of complaint against all the parties who were or might be interested under the wills of Mrs. Susanna Holloway and John E. Holloway, asking the court to take jurisdiction over the further administration of the trusts created by Mrs. Susanna Holloway, and for the construction of that will so far as may be necessary for a determination of the rights of all parties who may be entitled thereunder. The cases proceeded to submission for decrees when the learned chancellor decreed, in effect, in the cases respectively, that John E. Holloway died without a child or descendant within the meaning of the wills of his father and mother; that the powers of appointment had not been validly exercised by him; and that the part of the corpus of the two estates which had been held for his benefit passed to those who were to take under said wills on the happening of the contingency of his death without children or descendants. From those decrees these appeals were taken and by agreement of counsel were brought up in one record.

Revised Laws, § 5833, of the state of Nevada provides:

"Sec. 9. The father of an illegitimate child, by publicly acknowledging it as his own, or receiving it as such, with the consent of his wife, if he is married, into his family, or otherwise treating it as his legitimate child, thereby adopts it as such; and such child shall, thereupon and thenceforth, be deemed, for all purposes, legitimate from the time of its birth. * * *"

It is strongly urged by appellees that, as said section 9 is an integral part of the Nevada laws passed to provide for the adoption of children (Laws 1885, c. 24), it cannot be regarded as a legitimating statute, and should not be given the effect that such a statute would have. But adoption and legitimation are everywhere recognized as two different things. Unquestionably the section referred to provides...