Marty v. First Nat. Bank of Baltimore

• Decision Date: 27 February 1956
• Docket Number: No. 50,50
• Citation: Marty v. First Nat. Bank of Baltimore, 120 A.2d 841, 209 Md. 210 (Md. 1956)
• Parties: Mary Louise MARTY and J. Leonard Power v. FIRST NATIONAL BANK OF BALTIMORE, Trustee u/w Alfred J. Tormey, deceased.
• Court: Maryland Court of Appeals

Page 210

209 Md. 210

120 A.2d 841

Mary Louise MARTY and J. Leonard Power v.FIRST NATIONAL BANK OF BALTIMORE, Trusteeu/w Alfred J Tormey, deceased.

No. 50.

Court of Appeals of Maryland.

Feb. 27, 1956.

Edmund P. Dandridge, Jr., Baltimore (Venable, Baetjer & Howard, Baltimore, on the brief), for J. Leonard Power.

McKenny W. Egerton, Baltimore (Piper & Marbury, Baltimore, on the brief), for Mary Louise Marty.

Roger B. Williams and Roger A. Clapp, Baltimore (Hershey, Donaldson, Williams & Stanley, Baltimore, on the brief), for appellee.

Before BRUNE, C. J., and DELAPLAINE, COLLINS, HENDERSON and HAMMOND, JJ.

HAMMOND, Judge.

The trustee under the will of Alfred J. Tormey asked the court to instruct it as to whether trusts under which nieces and nephews of the testator are receiving income have or have not terminated.From a decree holding that the trusts still continue, a nephew and a niece appeal.

At the time of the execution of the will in 1938, Mr. Tormey was seventy-two years old, a widower and childless.He had three living sisters, Mary Rosalie Power, then seventy-five; Mary Elizabeth Devries, then seventy-four; and Mary Helen Plummer, then seventy-seven.Mrs. Power had one son, J. Leonard Power, then thirty-four, and then and now unmarried.Mrs. Devries had two children, a son and a daughter.The son, J. Roland Devries, was then forty-nine and had two sons; the younger was then six.The daughter, Mary Louise Marty, was then thirty-six, then and now married to Malcolm Marty, and then and now childless.Mrs. Plummer had three children.A son, Thomas C. Plummer, then forty-seven, had three children; the youngest was then fifteen.The second Plummer child was a daughter, Mary Elizabeth Leatherbury, then fifty, who had two daughters, the younger then being eight.The third child was Mary Eleanor Plummer, who had gone into a convent.All of the sisters and all of the nephews and nieces survived Mr. Tormey at his death in 1940.Mrs. Power died in 1947, Mrs. Devries in 1942, and Mrs. Plummer in 1941.No child or grandchild of any of the sisters was born between 1938 and the time of the institution of this proceeding in 1953.

The Tormey will contained some forty items.After disposing of his residence and giving thirty-three pecuniary legacies, including one to each of his sisters and each of his nephews and nieces by name, the residue of the estate--by far the greater part--is dealt with in Item XXXVI of the will.We are not concerned with the parts of that item which deal with the powers and duties of the trustees and their compensation.The part of Item XXXVI which must be interpreted gives the residue of the testator's estate in trust 'to divide the same into three equal shares and hold and manage as a trust fund, one of said equal shares for the benefit of my sisters; Mary Rosalie Power, Mary Elizabeth Devries, and Mary Helen Plummer, for the uses and purposes hereinafter set forth.'Except for a provision in the Devries trust, giving Malcolm Marty for life the income his wife had received, if she predeceased him, and one in the Plummer trust dealing with the share of Mary Eleanor Plummer, who had gone into a convent, the provisions of all three trusts are substantially identical.Using the Devries trust as an example, the pertinent provisions are these:

'3.The income and principal of the trust fund for the benefit of Mary Elizabeth Devries shall be paid over and distributed as follows:

'(a) The net income from said trust fund shall be paid in quarterly installments of equal amounts, or as nearly equal as practicable, to Mary Elizabeth Devries for and during her life.

'(b) Upon the death of Mary Elizabeth Devries, the net income shall be paid in quarterly installments of equal amount, or as nearly equal as practicable, to the children of Mary Elizabeth Devries living at the time of each payment, share and share alike, for a period of twenty-one years after the death of the last surviving descendant of Mary Elizabeth Devries living at the time of my death, or until the youngest living grandchild of Mary Elizabeth Devries shall have attained the age of twenty-one years, whichever event shall first occur.But should any child of Mary Elizabeth Devries have died leaving descendants, the descendants of said child shall be entitled to receive a share equal to that which their parent would have received had that child of the said Mary Elizabeth Devries been alive at the time of payment.The descendants of any deceased child of Mary Elizabeth Devries shall take per stirpes and not per capita.

'(c) From and after twenty-one years after the death of the last surviving descendant of Mary Elizabeth Devries living at the time of my death, or upon the youngest living grandchild of Mary Elizabeth Devries attaining the age of twenty-one years, whichever event shall first occur, I hereby give the trust estate as then constituted, including accrued interest not matured, unto the children of Mary Elizabeth Devries then living.But should any child of Mary Elizabeth Devries have died before the distribution of the corpus of this trust leaving descendants, the descendants of said child shall be entitled to receive a share equal to that which their parent would have received had that child of the said Mary Elizabeth Devries been alive at the time of the distribution of the corpus of this trust.The descendants of any deceased child of Mary Elizabeth Devries shall take per stirpes and not per capita.

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'(e) In the event, (1) that my sisterMary Elizabeth Devries shall die without leaving descendants surviving her, or (2) that all of the children of Mary Elizabeth Devries die before the time of distribution above provided without leaving descendants, or (3) there are none of said children or descendants living at the time provided for distribution, then the Trustees shall divide the trust estate as then constituted, including accrued interest not matured, into two equal parts and shall add one of said equal parts to the trust funds hereunder created for the benefit of Mary Rosalie Power and Mary Helen Plummer, respectively.'

There is a provision that if, for stated reasons, or any other reason, there are no persons entitled to take at the time provided for distribution, or if any part of the income or corpus should revert to the estate of the testator, two named hospitals take the income or corpus, or both, that the sisters or their descendants otherwise would have taken.

The trustee instituted suit in 1953 and made parties all of the children and grandchildren of testator's sisters, as well as the hospitals.In the court below, J. Leonard Power asserted that the Power trust had ended, and Mrs. Marty made the same claim as to the Devries trust, concurred in by Mr. Marty.Other adult members of the Devries family took the position that the Devries trust had not ended.Appearances were entered for the members of the Plummer family but none took an affirmative stand.The trustee contended that the Power and Devries trusts had not terminated.The master and the chancellor agreed with the trustee.

Only Leonard Power and Mary Louise Marty have appealed.Mrs. Marty claims that since the youngest living grandchild of Mrs. Devries has attained the age of twenty-one, the Devries trust has terminated, while Mr. Power contends that since there is no grandchild of Mrs. Power under the age of twenty-one, the terminating condition of the will in this respect is satisfied and he is entitled to the principal of the Power trust.

The key to the case is what point of time did the testator intend to use to determine when income payments should cease and principal be distributed.In each of the trusts, this moment came about when either of two contingencies occurred, no matter which first happened.The moment was either, once the death of a sister had ended her life tenancy, twenty-one years after the death of her last surviving descendant living at the time of the death of the testator, or when the youngest living grandchild of that sister'shall have attained the age of twenty-one years', whichever first came about.

In seeking to find what the testator meant, we adhere to the rules and guides which the cases have established.Intention is primary and paramount.This is not the presumed but the expressed intention of the testator.What must be sought is not what the testator meant as distinguished from what his words express, but '* * * simply what is the true meaning of his words; not merely what he meant, but what his words mean.'Miller, Construction of Wills, Sec. 10.Schapiro v. Howard, 113 Md. 360, 78 A. 58.What the words express is to be interpreted according to their plain meaning and import.Stein v. Safe Deposit & Trust Co., 127 Md. 206, 96 A. 349.This expressed intention of a testator must be gathered from the language of the entire will, particularly from the clause in dispute, read in the light of the surrounding circumstances at the time the will was made.Chism v. Reese, 190 Md. 311, 58[120 A.2d 845] A.2d 643;West v. Sellmayer, 150 Md. 478, 133 A. 333;Jones v. Holloway, 183 Md. 40, 36 A.2d 551, 152 A.L.R. 933;Robinson v. Mercantile Trust Co., 180 Md. 336, 24 A.2d 299, 138 A.L.R. 1427;Hutton v. Safe Deposit & Trust Co., 150 Md. 539, 554, 133 A. 308.The law does not contemplate, nor may courts assume, from the age of the parties, the impossibility of their having children, but the probability may be considered in determining what the testator may have expressed by his words when he made his will.In re Ricards' Trust Estate, 97 Md. 608, 609, 55 A. 384, 63 L.R.A. 145;Williams v. J. C. Armiger & Bros., 129 Md. 222, 234, 98 A. 542;In re Estate of Snyder, 195 Md. 81, 86, 72 A.2d 757, 18 A.L.R.2d 663;Chism v. Reese, 190 Md. 311, 58 A.2d 643, supra.

Four alternative constructions have been suggested as to the true meaning of the critical phrase 'upon the youngest living grandchild * * *...