Judik v. Travers

• Decision Date: 21 December 1944
• Docket Number: 65,66.
• Citation: Judik v. Travers, 184 Md. 215, 40 A.2d 306 (Md. 1944)
• Parties: JUDIK et al. v. TRAVERS. REEDER et al. v. SAME.
• Court: Maryland Court of Appeals

40 A.2d 306

184 Md. 215

JUDIK et al. v. TRAVERS.

REEDER et al. v. SAME.

Nos. 65, 66.

Court of Appeals of Maryland

December 21, 1944

Appeals from Circuit CourtNo. 2 of Baltimore City; W. Conwell Smith Judge.

Suit by William M. Travers, substituted trustee under the will of J Henry Judik, deceased, against Henry J. Judik and Mary Judik Wise and Charles C. Reeder and others for the construction of the will.From the decree, Henry J. Judik and Mary Judik Wise appeal, and Charles C. Reeder and others separately appeal.

Affirmed in part and reversed in part, and cause remanded with directions.

James C. Burch and F. Fulton Bramble, both of Baltimore (Michael F Delea, of Baltimore, on the brief), for appellants.

Paul R. Hassencamp, on Baltimore, (E. Donovan Hans, Wm. J. Stocksdale, and Randolph Barton, Jr., all of Baltimore, on the briefs), for appellees.

Before MARBURY, C.J. and DELAPLAINE, COLLINS, GARSON, MELVIN, BAILEY, CAPPER, and HENDERSON, JJ.

MELVIN Judge.

These cases involve the construction of the residuary clause of the last will and testament of the late J. Henry Judik, of Baltimore City.The will was executed under date of May 9, 1904, at which time the testator had a wife and eight children for whose special benefit a carefully prepared testamentary plan was evidenced.To each of his 'eight beloved children'he bequeathed the sum of $5,000 in cash and the entire residue of his estate to his wife, Lillie A. Judik, and Alexander Yearley, Jr., and Harry M. Benzinger, as trustees, upon the following terms and conditions:

'In Trust to pay the net income thereof, unto my said beloved wife, Lillie A. Judik, for and during the term of her natural life, but no longer, and from and immediately after the death of my said beloved wife, in trust to pay the net income thereof, in equal shares, unto my said eight beloved children, for and during the term of their respective lives, but no longer, and from and immediately after the death of each of my said beloved children respectively, in trust for their child or children respectively, and the issue or descendants of any deceased child or children, such issue or descendants of any deceased child or children, however, to take the share or shares per stirpes and not per capita.

'In Trust in the event of the death of any of my beloved children, without leaving a child or children, or the issue or descendants of any deceased child or children then living, for my surviving children and the issue or descendants of such of them as may be then deceased, such issue or descendants of any deceased child or children, in such case, to take per stirpes and not per capita, in equal shares absolutely.'

The testator died on May 16, 1910, and his will aforesaid was duly admitted to probate by the Orphans Court of Baltimore City.One of the trustees, Alexander Yearley, Jr., having declined to act, the others named in the will, to wit, Lillie A. Judik and Harry M. Benzinger, entered into possession of the rest and residue of the estate and thereafter administered the trust without having submitted it to the jurisdiction of the Court.Mr. Benzinger died on April 3, 1934, leaving Mrs. Judik as the sole surviving trustee.Upon her death on December 13, 1943, there being no trustee to continue the further administration of said trust, her four surviving children filed a petition in the Circuit Court for Baltimore City, asking the appointment of a new trustee and that the Court take jurisdiction of said trust.Upon this petition the Court passed a decree appointing William M. Travers, the appellee here, substituted trustee under said will, and assuming jurisdiction of the trust.The substituted trustee thereupon, in due course, filed his bill of complaint in Circuit CourtNo. 2 of Baltimore City, naming as defendants all of the parties in interest under the will of J. Henry Judik and asking the Court to construe the said will and to appoint a trustee to prepare and submit to the Court a proposed plan of division and sale of the trust property.

In the bill of complaint it is recited that when the will was executed the testator had eight children, but that one of these children, Joseph C. Judik, died unmarried on February 1, 1908, so that the testator was survived, in fact, by seven children.Of these surviving children, the following subsequently died: (1) A daughter, Irene Judik, on January 24, 1911, survived by one son, Charles C. Reeder, who is still living and has three infant children.These representatives of Irene Judik's share in the trust estate are partiesappellant here (No. 66); (2) a son, Henry Judik, died on March 5, 1921, leaving two children, Mary M. Wise and Henry J. Judik, both of whom are still living and neither of whom has children.These two grandchildren of the testator, Henry J. Judik, are partiesappellant in No. 65;(3) a son, John O. Judik, who died August 17, 1937, unmarried, and leaving no children or descendants.

The particular allegations of the bill of complaint which relate to the residuary clauses now under consideration are those contained in paragraphs 7 and 8, as follows:

'Seventh: Plaintiff further alleges that he is advised that by the terms of said Will the shares of the corpus of the trust of deceased children of the Testator who have descendants now living have vested absolutely, per stirpes, in such descendants, so that certain shares are now vested absolutely in certain persons, and the shares of still living children are still vested in the Plaintiff, as substituted trustee under said will; that, therefore, plaintiff is a tenant in common with said other parties of all the property comprising the trust estate, and that a division thereof is necessary in order that those who get their shares outright may receive them and that the portion still remaining and vested in your plaintiff, as substituted trustee, may be designated and held by said substituted trustee under the continuing trust.

'Eighth: Plaintiff is further advised, however, that the will is not entirely clear in what proportions and in what manner the estate is thus vested in now living descendants of said testator, and that in order that a proper division may be made it is necessary first to determine what said proportions are; that to that end a construction of said will is desirable, in which, among other things, the Court may determine or decree----

'(a) Whether the share or shares of deceased children now vest absolutely in their descendants or are to be held in continued trust; '(b) Whether the share or shares of children, who died without descendants, passing to still living children, vest absolutely in such children or are to be held as a part of the original trust.

'(c) Whether the share or shares of children, who died without descendants, passing to descendants of deceased children, vest absolutely in such descendants of deceased children or are to be held as a part of the original trust.

'(d) Any other questions which any one interested in said will may desire to present to said Court.'

To this bill of complaint, five separate answers were filed, namely, one by Charles C. Reeder, one by the guardian ad litem of the Reeder minors, only by the four surviving children of the testator, one by the two children of Henry Judik, deceased; one by a granddaughter, and another by the guardian of the two minor great-grandchildren representing the share of Mary Louise Judik, one of the surviving children of the testator, J. Henry Judik.These respective answers may be divided into two conflicting groups insofar as they relate to the one and only issue presented for determination on these two appeals, namely, the issue raised in section (b) of paragraph 8 of the bill of complaint.

Attention is to be focused, therefore, upon this particular subsection the wording of which is: '(b) Whether the share or shares of children who died without descendants passing to still living children vest absolutely in such children or are to be held as part of the original trust.'The two answers on behalf of the Irene Reeder interest meet this issue by categorically claiming: '(b) The share or shares of children dying without descendants and passing to still living children of the testator do not vest absolutely in such children, but are to be added to, and treated as part of, their original trust share.'Completely in accord with this position, although expressed in somewhat different phraseology, is the answer filed on behalf of the two children of Henry Judik.Directly to the contrary, the answer on behalf of the four surviving children of the testator, as well as the answer on behalf of the Marie Louise Judik interest, take exactly the opposite position, likewise in categorical language, as follows: '(b).The share or shares of children dying without descendants and passing to still living children of the testator,...