Lederer v. Safe Deposit & Trust Co. of Baltimore

• Decision Date: 15 December 1943
• Docket Number: 45.
• Citation: Lederer v. Safe Deposit & Trust Co. of Baltimore, 35 A.2d 166, 182 Md. 422 (Md. 1943)
• Parties: LEDERER v. SAFE DEPOSIT & TRUST CO. OF BALTIMORE et al.
• Court: Maryland Court of Appeals

35 A.2d 166

182 Md. 422

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

No. 45.

Court of Appeals of Maryland

December 15, 1943

Appeal from Circuit Court of Baltimore City; Edwin T. Dickerson Judge.

Suit by the Safe Deposit & Trust Company of Baltimore, as trustee against Jane B. Lederer and others for instructions as to disposition of a trust fund. From an adverse decree, named defendant appeals.

Affirmed.

Randolph Barton, Jr., of Baltimore (F. Fulton Bramble, of Baltimore on the brief), for appellee Safe Deposit & Trust Co.

Simon E. Sobeloff, of Baltimore (Bernard M. Goldstein, of Baltimore, on the brief), for appellee C. Lehnert Hess, guardian, etc.

Louis N. Frank, of Baltimore, for appellees Beatrice B. Leitz et al.

Before SLOAN, C.J., and DELAPLAINE, COLLINS, MARBURY, MELVIN, ADAMS, and BAILEY, JJ.

COLLINS Judge.

Herman Bernheimer, on September 15, 1927, executed his last will and testament in which he gave and bequeathed to the Safe Deposit and Trust Company of Baltimore, Trustee, $200,000 for each of his two children, Abraham Bernheimer and Beatrice B. Leitz, in trust for life on the condition that each child survive him. Upon the death of the children respectively, the Trustee was to pay over and transfer the principal of the trust of the child so dying to such person, persons, corporation, or corporations and in such manner in trust or otherwise as the child so dying may, by will or codicil executed at any time after the death of the said Herman Bernheimer, appoint or direct, giving to each of Herman Bernheimer's children power to appoint or dispose of by will or codicil all or any part of the principal of the said trust fund. In case either child failed to appoint or dispose of his or her trust fund, at his or her death, said principal was by the Trustee to be paid over to the issue or descendants of the child so dying and if such child left no issue or descendants, then to the next of kin of the said Herman Bernheimer. It was also provided that these trust should have preference and priority over all other bequests in his will.

He bequeathed to Alice Margaret Leitz, one of the daughters of his daughter, Beatrice B. Leitz, and to Nina M. Bernheimer, one of the daughters of his son, Abraham Bernheimer, each the sum of $15,000 in trust.

After numerous other bequests to individuals and charitable corporations, he devised in paragraph nine the rest and residue of his estate as follows: 'All the rest and residue of my estate, real, personal and mixed of whatever kind and wherever situated, of which I may die seized and possessed, or of which I may have any power to dispose by will, I give, devise and bequeath to said Safe Deposit and Trust Company of Baltimore, Trustee, and its successors in said trust, * * *.' (Italics supplied)

Herman Bernheimer executed a first codicil to his will on the same day making certain corrections as to some of the corporate beneficiaries and in all other respects reaffirmed and republished his said will and all the provisions thereof. On September 16, 1927, he executed a second codicil regarding the bond to be given by the executor and further stated: 'In all other respects I reaffirm and republish my said will and the first codicil thereto and all the provisions of the said will and first codicil.'

On August 30, 1928, he executed to the Safe Deposit and Trust Company a deed of trust of certain securities with the provision that the Trustee pay out of the income of said trust $3,600 per annum to Fannie Miller, later Fannie Beck. The deed of trust further provided that upon the death of the said Fannie Miller Beck, the Trustee was to pay out of the corpus of the estate so created the sum of $5,000 to John B. Beck, her brother, or his next of kin. By the same instrument he provided: 'All the rest and residue of said corpus shall be payable and transferable absolutely to the said Grantor if he is then living, but if he is not then living shall be, by said Trustee, paid over and transferred to such person or persons, corporation or corporations as said Grantor may be will or codicil executed in accordance with the laws of the State of Maryland at any time on or after the date of this instrument direct or appoint. Should said Grantor fail so to direct or appoint, either in whole or in part, all of said corpus not so validly appointed shall, upon the termination of the trust following the death of said Grantor, be paid over and transferred absolutely to the at that time surviving next of kin of said Grantor.' (Italics supplied)

On January 30, 1935, he executed a third codicil to his will in which he referred to the will of September 15, 1927, and the two provious codicils of September 15 and 16, 1927, and after bequeathing a legacy to a friend and providing for certain securities which he had turned over to his son, Abraham Bernheimer, to be used as collateral for a loan which his son was carrying, he stated in the fourth paragraph thereof: ' In all other respects I reaffirm and republish my said Will and the previous Codicils thereto and all the provisions of said Will and Codicils.' (Italics supplied)

Herman Bernheimer died on August 6, 1936, leaving sufficient assets for each of the trusts created for his two children, Abraham Bernheimer and Beatrice B. Leitz, to make up a principal account of $177,041.50 for each trust. Each of said trusts was therefore short the sum of $22,958.50.

Fannie Miller Beck died on September 12, 1942, and the principal amount of the trust created for her benefit during life, after the payment of $5,000 to the children of John E. Beck, he having predeceased Fannie Miller Beck, was approximately $64,000.

Abraham Bernheimer died on July 22, 1940, leaving to his wife, Helen S. Bernheimer, if she survived him, the sum of $5,000; to his daughter, Nina M. Bernheimer, if she survived him, $5,000; and to his daughter, Jane B. Lederer, the child of the said Abraham Bernheimer and his divorced wife, $5,000, if she survived him. After various other bequests, he devised and bequeathed to the Safe Deposit and Trust Company of Baltimore, as Trustee, all the rest and residue of his estate, including any and all interest which he had as beneficiary under the will of his father, Herman Bernheimer, in trust for the benefit of his widow, Helen S. Bernheimer, for life, thereafter for the benefit of his daughter, Nina M. Bernheimer, for life, remainder to her appointees, or if none then to her living issue, per stirpes, or if no issue then to said testator's own then living next of kin, per stirpes, exclusive of his daughter, Jane B. Lederer. The heirs at law of Abraham Bernheimer were his wife, Helen S. Bernheimer, and his two children, Nina M. Bernheimer and Jane B. Lederer. His sister, Beatrice B. Leitz, also survived him.

At the time of the execution of Herman Bernheimer's will, Abraham was married to his wife Helen S. Bernheimer, and had one child by her, Nina, and a daughter, Jane, by his former wife. Beatrice B. Leitz, at the time of the execution of her father's will, had two children, namely: Alice and Frances.

Upon the death of Fannie Miller Beck, being undecided as to the proper disposition of the corpus of the trust fund of approximately $64,000, the Safe Deposit and Trust Company filed a bill of complaint in the Circuit Court of Baltimore City alleging in substance the facts above stated and asked proper disposition of said fund.

After answers filed by the necessary parties, the Chancellor decreed, among other things, that the testator, by his third codicil, reaffirmed and republished his will and executed the power of appointment in the deed of trust and decreed that, out of the sum of approximately $64,00, the unpaid balances of $22,958.50 each should be paid the Safe Deposit and Trust Company as Trustee to make up the general legacies of $200,000 to each of the trust estates for Abraham Bernheimer and Beatrice B. Leitz, with interest at the rate of six per cent (6%) per annum from the date of Herman Bernheimer's death, and that the balance be devisable among the other legatees in the will of Herman Bernheimer.

Jane B. Lederer, the granddaughter of Herman Bernheimer and the daughter of Abraham Bernheimer, appeals from that decree and contends that the will of Herman Bernheimer, as republished by the third codicil, did not exercise the power of appointment reserved by the said Herman Bernheimer under the deed of trust and that, therefore, this sum of approximately $64,000 should revert to the next of kin of Herman Bernheimer. She being a granddaughter and one of the next of kin claims a one-fourth share in this fund.

The question for the decision of this Court is: Does the will of Herman Bernheimer, dated September 15, 1927, as republished by the third codicil thereto, dated January 30, 1935, exercise the power of appointment reserved by the said Herman Bernheimer under the deed of trust executed by him on August 30, 1928?

It is a well-known general principle of law in this State that a codicil operates as a republication of the whole will so far as it is not revoked or altered by the codicil to include any alterations made before the date of the codicil and speaks from the date of the codicil. Gilmer v. Aldridge, 154 Md. 632, 637, 141 A. 377; Bruton v. Smith, 174 Md. 516, 520, 199 A. 517; Syfer v. Dolby, 181 Md ----, 32 A.2d 529, 533; 68 Corpus Juris, page 861, sec. 576; In re Greenberg's Estate, 261 N.Y. 474, 185 N.E. 704, 87 A.L.R. 833; Jarman on Wills, pages 184, 185. As words of reaffirmance and republication were used in the codicil, an expressed intention to republish and reaffirm is indicated. In...