Kiser v. Lucas

• Decision Date: 09 June 1936
• Docket Number: 24.
• Parties: KISER v. LUCAS.
• Court: Maryland Court of Appeals

185 A. 441

170 Md. 486

KISER v. LUCAS.

No. 24.

Court of Appeals of Maryland

June 9, 1936

Appeal from Circuit Court of Baltimore City; Eugene O'Dunne Judge.

Bill by John F. Kiser against Corinne P. Lucas. The bill was dismissed, and plaintiff appeals.

Affirmed.

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

Vernon Cook and Frederick J. Singley, both of Baltimore (Milton B Edelson, of Baltimore, on the brief), for appellant.

Lawrence Perin and William D. Macmillan, both of Baltimore (Semmes, Bowen & Semmes, of Baltimore, on the brief), for appellee.

PARKE Judge.

Mary Read Clarke engaged the services of her solicitor to prepare a deed of trust. After receiving her instructions, the solicitor prepared the document and took it to her residence for execution. In the form it was drawn the grantor assigned to designated trustees certain specified personal property to be converted, and the proceeds invested so that the net income would be paid to the settlor for life, and then, accounting from her death, to pay out of said income (a) to her mother the monthly sum of $200; (b) to her adopted son, then seventeen years of age, the monthly sum of $200 to be increased and continued as by the deed of trust provided; and (c) to her cousin, Corinne P. Lucas, during her life, the monthly sum of $100.

If the net income should not be sufficient to pay these monthly sums, the payment to the cousin was to be paid in full and the portions of the mother and son were to be correspondingly reduced, but if there should be any surplus income it was to fall in and become a part of the principal.

After these provisions, two paragraphs followed. They were in this form:

"At the death of my mother and at the death of my cousin the whole net income of the Estate shall be paid to my adopted son.

The monthly income to my son of Two Hundred Dollars ($200) or a larger amount in the event of the death of my mother or cousin shall continue until he reaches the age of thirty years, at which time one-half of the principal of the Trust Estate, if both my mother and cousins are then dead, shall be paid to my son free and discharged of the Trust. If, however, one or both of my mother and cousin are still alive I desire that my Trustee shall set aside a sufficient amount to produce the annuities to them and that one-half of the Trust Estate after such deduction shall then be paid to my son, and further amounts of the principal shall be paid to him thereafter upon the death of my mother and cousin until said amounts paid to him shall reach a total of fifty percent (50%) of the whole Trust Estate."

The document then declared that the residue of trust estate should remain in trust and the net income be paid to the son for life, and, upon his death, to any of his children until the youngest should reach the age of twenty-one years, when the trust estate should be divided among said children or their issue per stirpes, subject to the exercise by the son of the power by will to divide the principal of said trust estate and the income thereof during the minority of any child in unequal amounts among his issue, provided that the principal of the trust should not be divided or paid over until the youngest of the children of the son should reach the age of twenty-one years. Should the son die without issue in the mother's lifetime, the net income was to be paid to the mother for life, and upon the death of the son without issue and of the mother, the trust was to terminate and be paid in equal portions to the settlor's three cousins, Julia, Corinne, and Katie Lucas, and their personal representatives. In addition to this summary, there were other provisions which do not require statement for an understanding of the problem at bar.

When the settlor was made acquainted with the contents of the typewritten document, she stated that it was not drawn as she had directed; and the solicitor, after discussing the matter with her, informed her that the mistake could be corrected. The correction was then made by the solicitor writing at the close of the paragraph which has been here stated the additional clause: "While she is unmarried and lives with my mother." No other change was made in the body of the document. Indicating the new clause by italics, the effect of the alteration is to make the provision read: "And in the same manner to pay to my cousin, Corinne P. Lucas, during her life the monthly sum of one hundred dollars ($100). While she is unmarried and lives with my mother."

The settlor verified this alteration by placing her initials opposite the written words, and there was, also, included in the acknowledgement before the notary a certification that the interlineation was made before the settlor executed the instrument. The trust deed was executed on January 12, 1925, and a formal acceptance of the trust was indorsed at the foot of the deed on the following day.

On the day of its execution the settlor's mother, her adopted son, and her three cousins, who were beneficiaries according to the terms of the trust, were alive. The two trustees assumed the administration of the trust. One of the trustees was the draftsman of the deed of trust, but he resigned after more than a year's service, and the remaining corporate trustee continued to act. The settlor's mother died on October 13, 1933. The settlor died on July 4, 1934, and she was survived by her adopted son, who was of age, married, and has living an infant daughter and son. Corinne P. Lucas, a cousin, had never married, and she and the two other cousins survived.

On October 8, 1934, these parties in interest were brought into court by a bill of complaint filed by the trustee for the purpose of having a court of equity assume jurisdiction of the trust, and, because of doubt in respect of the proper construction of the grant, determine whether the annuity to Corinne P. Lucas should be paid to her until her death or whether the prospective annuitant should not be paid the annuity because she was not living with the settlor's mother, who had died, and the entire net income of the trust should be paid to the adopted son, accounting from the death of the settlor. With all the parties in interest before the court, the matter was heard and considered. The opinion of the chancellor indicates that he weighed carefully the questions involved. He rejected the contention of the adopted son that the interlineation had created a condition precedent to the existence of a right in Corinne P. Lucas to the annuity, which defeated the annuity because of the death of the mother of the settlor before the settlor died. The chancellor's conclusion was that the annuity given was for life upon the condition subsequent that she remain unmarried and live with the mother of the settlor; and that a part of the condition having become impossible of fulfillment by act of God, the annuity was for life so long as the annuitant remain unmarried. The decree directed that the trustee pay to Corinne P. Lucas from the net income received from the trust estate the monthly sum of $100 for life, and so long as she remains unmarried, accounting from the death of the settlor. No appeal was taken from this final decree of June 6, 1935.

The decree was on the merits and was by a competent court which had jurisdiction of the subject-matter and over the parties, and, so, having been neither set aside nor reversed upon appeal, is conclusive upon the parties and their privies of all questions put in issue by the pleadings. Vollum v. Beall, 117 Md. 617, 622, 83 A. 1095, Ann. Cas.1914D, 16; Emmert v. Middlekauff, 118 Md. 399, 403, 404, 84 A. 540; Christopher v. Sisk, 133 Md. 48, 50, 51, 104 A. 355; Wiley v. McComas, 137 Md. 637, 639, 640, 113 A. 98; Walzl v. King, 113 Md. 550, 556, 77 A. 1117; Stouffer v. Wolfkill, 114 Md. 603, 609, 80 A. 300; Elkton v. Sweet, 141 Md. 614, 618, 119 A. 510. Compare Orrick v. Fidelity & Deposit Co., 113 Md. 239, 251, 77 A. 599.

As between the parties, the decree must, therefore, be accepted as conclusive that by the terms of the grant, Corinne P Lucas is entitled to the monthly payment of $100 out of the net income of the trust estate so long as she lives and remains unmarried. Having been a party to the bill of complaint to have this inquiry settled by a construction of the grant, the adopted son would unquestionably be bound by the decree of construction so long as the deed of trust is effective. Supra. The son, however, filed a bill of complaint against the acting trustee and Corinne P. Lucas, on August 15, 1935, in which it is averred that neither the original draft of the deed of trust nor its modification by the interlineation mentioned expressed the true intention of the settlor, which was asserted to be that the monthly payment of the sum of $100 to Corinne P. Lucas was in compensation for her services as a companion to the mother of the settlor and that the payment was not to be made unless the services were rendered. The failure of the deed of trust to express this asserted intention is ascribed to the solicitor of the settlor, and on the theory of mistake in changing the original terms, the relief prayed is that "the deed of trust be reformed by inserting appropriate language to indicate that the $100 a month is a compensation for services as companion to the mother of the grantor, and to continue only so long as the said services were actually rendered." It is objected that this bill of complaint cannot be entertained because the decree in the first bill of complaint makes the equity of the second bill res judicata. The difficulty with this position is twofold. The first bill of complaint was instituted by the trustee on the theory that the deed of trust was a...