MacBryde v. Burnett

• Decision Date: 09 June 1942
• Docket Number: Civ. No. 1137.
• Citation: 45 F. Supp. 451
• Parties: MacBRYDE v. BURNETT et al.
• Court: U.S. District Court — District of Maryland

45 F. Supp. 451

MacBRYDE v. BURNETT et al.

Civ. No. 1137.

District Court, D. Maryland.

June 9, 1942.

J. Morfit Mullen and R. Contee Rose, both of Baltimore, Md., for plaintiff.

Edwin F. A. Morgan, Frederick W. Brune, and Semmes, Bowen & Semmes, all of Baltimore, Md., for estate of Robert B. Parker.

CHESNUT, District Judge.

The remaining question in this case is the proper division of the fund in court among three several claimants. Questions of jurisdiction and procedure have been heretofore considered and ruled upon (D. C., 41 F.Supp. 661) and the amount of the fund has been determined after hearing on the merits of the main controversy. D.C., 44 F.Supp. 833.

The fund was originally created by the will of Mary Donaldson probated in the Orphans' Court of Baltimore City on May 27, 1920. By the second paragraph of the will the testatrix bequeathed to her niece Sara J. Parker, the "sum of $10,000 for and during her natural life and after her death I bequeath the said $10,000 to her brothers and sister of the whole blood in such proportions as she may designate by her last will and testament, but should she die intestate the said sum of money shall be divided among them equally."

By reason of a fortunate investment of this legacy the amount has increased and as heretofore determined now is of a value of about $34,000.

The power given to Sara J. Parker, the life tenant, was executed by her in her last will and testament dated March 23, 1927, and probated in the Orphans' Court of Baltimore City November 15, 1940. The provision of the will in execution of the power reads as follows: "The fund of $10,000 under the will of my aunt, Mary Donaldson (which said will is now of record among the records of the Orphans' Court of Baltimore City), which I was to enjoy for life with the right of disposition to my brothers and sister at my death, I give and bequeath in equal parts to my brothers, LeRoy Parker and Robert B. Parker, and my sister Mary D. Winder."

Sara J. Parker also executed codicils to her 1927 will in 1929 and 1933, but the provisions of the codicils are not in point here. The relevant facts with regard to the persons constituting the brothers and sister of Sara J. Parker, at the time of the death of Mary Donaldson and thereafter to the death of Sara J. Parker, have been stipulated.

On March 20, 1917, the date on which Mary Donaldson executed her last will and testament, the brothers and sister of the whole blood of Sara J. Parker then living were Henry P. Parker, Robert B. Parker, LeRoy Parker and Mary D. Winder. Both parents of these persons were then deceased. All these persons were also living on May 20, 1920, the date of the death of Mary Donaldson. On February 15, 1925, Henry P. Parker died leaving his whole estate to his widow, Eleanor Ridgely Parker, who was named as executrix of his will and who also died May 31, 1925. The will is not in evidence here, and the legatees therein have not been made parties to this case. Henry P. Parker had no children living at the time of his death. It will be noted that both Henry P. Parker and his widow and executrix died prior to the date of the will of Sara J. Parker. Robert B. Parker was living at that time but died on August 2, 1940, shortly prior to the death of Sara J. Parker. Robert B. Parker was survived by his widow, Alice D. Parker, who was named executrix of his will, and also by a son, Robert B. Parker, Jr. The will of Robert B. Parker, Sr., left his entire estate to his widow, who as executrix is one of the claimants in this case.

Sara J. Parker died November 12, 1940, and was survived by one brother, LeRoy Parker, and by one sister, Mary D. Winder; but LeRoy Parker died on February 12, 1941, and his interest in the fund has now devolved upon the plaintiff, Malcolm H. MacBryde, Jr., under his will and by virtue of probate proceedings affecting his estate in Virginia. Mary D. Winder has recently intervened in the case as a claimant of a part of the fund.

The question now presented as to the division of the fund is whether Alice D. Parker as executrix of her husband, Robert B. Parker, is entitled to a share of the fund under the wording of the power executed by Sara J. Parker in her will. The plaintiff, MacBryde, as successor in interest to LeRoy Parker, and Mary D. Winder, the sister of Sara J. Parker, claim that the fund must now be divided equally between them, to the exclusion of any interest of the widow and son of Robert B. Parker who predeceased Sara J. Parker. The point made is that the appointment in favor of Robert B. Parker failed or lapsed upon his death. It is thus seen that the question presented is purely a question of law to be determined on consideration of the wording of the two wills, one of Mary Donaldson, and the other of Sara J. Parker, as affected by the admitted genealogy.

As the jurisdiction of the court in this case is dependent solely on diverse citizenship, the controversy must be resolved upon consideration of the Maryland statutory and case law. Erie R. R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487. The primary question is whether Sara's appointment of Robert, who shortly predeceased her, was effective to give his one-third share to his widow as executrix. And here at once the executrix encounters a uniform current of judicial decisions which are succinctly summarized in Simes, Law of Future Interests, Vol. I, § 259, as follows: "If the appointee under a power to appoint by will dies before the donee of the power, the decisions are uniform to the effect that he cannot take under the power. Commonly, it is said that the appointment lapses. If the court followed consistently the doctrine that the exercise of the power is read back into the instrument creating the power, the result would be otherwise. But it seems reasonable to suppose that a donor who did not permit the donee to make an effective appointment until the donee's death intended the donee to make an appointment only to persons who survived him." (Italics supplied.)

And in A.L.I. Restatement of Property (Future Interests, parts 3 and 4) § 349, it is categorically stated: "An appointment to a person who is dead is ineffective except as provided by statute (§ 350)".

Comment A reads as follows: "Rationale: The rule stated in this Section is based upon the inferred intent of the donee, and is similar in its application to the rule as to lapses of devises, and legacies to persons who predeceased the testator. In cases where the donee manifests an intent that, if an appointee dies before the appointment is made, he desires the property to pass to the appointee's executors, administrators or heirs, there is an alternative appointment to these persons, but mere words of limitation are not sufficient for this purpose. If the power is special an alternative appointment to executors, administrators or heirs is ineffective unless, as is rarely the case, executors, administrators and heirs are included within the class of objects."

Section 350 above referred to deals with the effect of the so-called anti-lapsing statutes in relation to general, as distinct from special, powers. The power here involved is, of course, a special power to be executed by will only. See same Restatement, § 320(2), and the introductory note as to powers of appointment at page 1808 et seq. It is not contended that the share appointed to Robert, if otherwise ineffective, would be saved or prevented from lapsing by the Maryland Anti-Lapsing Statute. Maryland Code 1939, art. 93, §§ 340, 341; Annotation, 75 A.L.R. 1383; A.L.I. Restatement of Property, Future Interests, §§ 349, 350; Daniel v. Brown, 156 Va. 563, 159 S.E. 209, 75 A.L.R. 1377; Griffiths v. Gale, 12 Sim. 327, 354; Farwell on Powers, p. 267.

I think the Maryland law is in accord with this uniform rule. Smith v. Hardesty, 88 Md. 387, 390, 41 A. 788, affords the closest precedent. In that case the will of the testator gave property to his wife for life with power to devise it among the testator's children, or either of them, in such manner as she might deem best, and in default of the exercise of the power, then to his said two daughters by name or to the survivor in the event of either dying without issue before she arrived at the age of 21 years. Both daughters predeceased the wife, one dying without issue and the other leaving a son and daughter, who survived the wife of the testator. In her will the wife attempted to exercise the power in favor of the granddaughter. It was held the appointment was invalid and the property passed, in default of proper execution of the power, under the will of the donor of the power. To hold the appointment of a deceased person valid would in effect carry the benefit to his heirs or his personal representatives and thus out of the class authorized by the donor of the power where, as in this case, it is a special power limited to the appointment of a designated class of persons. In Miller on Construction of Wills (a text-book of high authority in Maryland, as it is frequently cited with approval by the Maryland Court of Appeals), it is stated in section 263: "As the intention of the donor of a power must be followed in respect to the persons to whom the property may be appointed, it is obvious that a power to appoint property to certain persons cannot be validly executed by appointing the property to other persons."

This general principle is also recognized in Allder v. Jones, 98 Md. 101, 108, 56 A. 487; Preston v. Willett, 105 Md. 388, 394, 395, 66 A. 257; Balls v. Dampman, 69 Md. 390, 394, 395, 16 A. 16, 1 L.R.A. 545; and Price v. Cherbonnier, 103 Md. 107, 111, 63 A. 209, although these cases did not involve an attempted appointment to a deceased person. Some of the decisions in other jurisdictions, which did involve attempted appointments of deceased persons, which were held invalid, are Daniel v. Brown, 156 Va. 563, 159 S.E. 209, 75 A. L.R. 1377; Herrick v....