Newlin v. Mercantile Trust Co. of Baltimore

• Decision Date: 14 January 1932
• Docket Number: 68-74.
• Citation: Newlin v. Mercantile Trust Co. of Baltimore, 161 Md. 622, 158 A. 51 (Md. 1932)
• Parties: NEWLIN ET AL. v. MERCANTILE TRUST CO. OF BALTIMORE ET AL.
• Court: Maryland Court of Appeals

158 A. 51

161 Md. 622

NEWLIN ET AL. v. MERCANTILE TRUST CO. OF BALTIMORE ET AL.

Nos. 68-74.

Court of Appeals of Maryland

January 14, 1932

Appeals from Orphans' Court of Baltimore City; Harry C. Gaither William M. Dunn, and Philip L. Sykes, Judges.

Proceeding by the Mercantile Trust Company of Baltimore, formerly the Mercantile Trust & Deposit Company of Baltimore, executor of the last will and testament of William H. Hoyt, deceased, for an order of distribution of the decedent's estate involving construction of decedent's will and codicil. From an order distributing the residuary estate of deceased Grace Whittemore Newlin and others, the Girard Trust Company of Philadelphia, executor of Grace De Lancey Newlin deceased, Laura E. Boureau, administratrix c. t. a. of the estate of Francis A. De Wint, deceased, the Mercantile Trust Company of Baltimore, executor of the last will and testament of Kate Hoyt, deceased, Adele De Wint Van Voorhis, Katherine B. Werner and another, and Adolph F. Roth, administrator of Mabel Thurston Whittemore Roth, deceased, separately appeal.

Affirmed.

Argued before BOND, C.J., and URNER, ADKINS, OFFUTT, PARKE, and SLOAN, JJ.

Richard F. Cleveland, of Baltimore, and Russell Duane, of Philadelphia, Pa. (Semmes, Bowen & Semmes, of Baltimore, and Duane, Morris & Heckscher, of Philadelphia, Pa., on the brief), for appellants Newlin and others.

Roszel C. Thomsen and Walter L. Clark, both of Baltimore (George B. Evans, of Morrestown, N. J., and Clater W. Smith, of Baltimore, on the brief), for appellant Boureau.

Charles McH. Howard, of Baltimore (Venable, Baetjer & Howard, of Baltimore, on the brief), for appellant Mercantile Trust Co.

Emory L. Stinchcomb, of Baltimore (Harry K. Davenport and Stewart & Shearer, all of New York City, on the brief), for appellant Van Voorhis.

Eben J. D. Cross, of Baltimore, for appellants Werner and De Wint.

Herbert P. Queal, of New York City, for appellant Roth.

Venable, Baetjer & Howard, of Baltimore, for appellee.

OFFUTT J.

These seven appeals from an order of the orphans' court of Baltimore city distributing the residuary estate of William H. Hoyt, late of that city, deceased, present varying contentions of the next of kin of the decedent and possible distributees of his estate as to the true meaning of certain clauses in a codicil to his will.

The facts forming the back ground of those contentions are these: William H. Hoyt, who for many years prior to his death lived with his wife, Kate Hoyt, in the city of Baltimore, left to survive him no kin nearer than nieces, nephews, grandnieces, and grandnephews. At the time of his death, he had in possession an estate valued at something over $47,000, and a vested remainder in the residuary estate of his brother Louis Thurston Hoyt of New York, who had died in 1901 leaving a large fortune which he disposed of by last will and testament duly admitted to probate in the Surrogate's Court of the county of New York. Under that will the residuary estate of the testator was left in trust for his widow for her life and at her death for his daughter Aline, and at her death to certain designated legatees, among whom was his brother William H. Hoyt, who was to receive one-fourth of three-eighths thereof.

William H. Hoyt, for some reason not fully disclosed by the record, apparently failed to realize the value or the extent of his interest in his brother's residuary estate at the time he executed his will on September 9, 1913, for in it he made no mention of that legacy, but on November 3, 1915, he executed a codicil to his will in which he did dispose of it.

At his death which occurred on January 2, 1917, he left to survive him as his next of kin and possible distributees of his estate the persons whose names, together with their relationship to the testator, the share of his residuary estate allotted to each of them recognized in the order from which these appeals were taken as a proper distributee, the date of the death of such of them as died prior to March 16th, 1930, and the names of their personal representatives, appear in the following table:

Next of Kin at Testator's Death. ------------------------------------------------------------------------------- ------------------------------------------------------------------------------- Name Relationship Share in Living Parent Remarks to testator residuary or estate date allowed of by order death of Orphans Ct. ------------------------------------------------------------------------------- 1. Adele deWint niece 1/6 Living Emily Van Voorhis Adele deWint 2. Gannett S. de nephew 1/6 Living do. Wint 3. Francis A. de nephew D. 12/1- do. Laura E. Wint 0/26 Boureau Admx. ------------------------------------------------------------------------------- 4. Mabel T. W. niece D. Ella Ca- Adolph S. Roth 9/1929 rroll. Roth, Extr. 5. Louis H. nephew 1/6 Living do. Whittemore 6. Grace de Lancey grand niece D. 9/30 Grace W. Gerard Newlin Trust 7. Grace niece 1/6 Living Newlin Co. Extr. Whittemore Newlin Ella called in Will Carro- Grace deL. ll. Verplanck Newlin ------------------------------------------------------------------------------- 8. Aline Woodfield niece D. 1923 Louis T. John W. Woodfi- eld Exor. ------------------------------------------------------------------------------- 9. Marjorie C. de Gr. niece 1/12 Living Francis Gr. dtr. Wint A. 10. Katherine B. Gr. niece 1/12 Living Francis Emily Werner A. Adele do. 11. Kate Hoyt widow 1/6 D. Nov. Merc. Tr. 29/27 Co. Exr.

So much of the testator's estate as was in his possession at the time of his death was by an order of the orphans' court of Baltimore city distributed in accordance with the provisions of his will on December 5, 1928, and, while the propriety of that order is not in issue in this case, since the will and the codicil are complementary, and as the provisions of the will reflect some light upon the meaning which the testator intended to convey by the language employed by him in the codicil, in construing the codicil it is also necessary to examine the will.

By that will dated September 9, 1913, the testator made the following disposition of the property which he owned and possessed at the time of his death: To each of the following persons described as his "own nieces and nephews" he bequeathed $342, Adele De Wint Van Voorhis, Ganett Sprarert De Wint, Francis Adams De Wint, Grace De Lancey Verplanck Newlin, Mabel Thurston Whittemore, Louis Hoyt Whittemore; to his wife, Kate Hoyt, he bequeathed $12,500; and to John and Aime Hanold he bequeathed $70 each. After those specific legacies, he bequeathed the entire income of the residue of his estate to his wife, Kate Hoyt, for her life, and at her death from the remainder he bequeathed to Aline Woodfield, his niece, $350; to Francis Adams De Wint, his nephew, and Marjorie Couenhoren De Wint and Katherine Belden De Wint, his grandnieces, each $600; $150 each to John and Aime Hanold; and to "each one of my own nieces and nephews in addition to the other provisions in their favor in the foregoing Will as follows, to Adele DeWint Van Voorhis, to Ganett Sprarert DeWint, to Mabel Thurston Whittemore, to Louis Hoyt Whittemore, to Grace DeLancey Verplanck Newlin, to Francis Adams DeWint the sum of one thousand dollars--$1000," and $200 each to a number of religious, fraternal, and charitable institutions, and he further bequeathed to his wife absolutely his furniture, wearing apparel, and jewelry. He then provided: "If after the death of my aforesaid wife their shall be any surplus of real or personal property remaining after paying all the aforesaid legacies I direct that all such surplus shall be equally divided per stirpes among my next of kin then living." He named his wife executor of the will, and, upon her refusal to act, the Mercantile Trust Company. Mrs. Hoyt refused to act as executor, and letters were accordingly issued to the Mercantile Trust Company of Baltimore City.

In the codicil executed November 3, 1915, over two years later, in disposing of his interest in the estate of his brother, he bequeathed to his wife, Kate Hoyt, $34,000 absolutely, "in addition to the other provisions in her favor in the aforegoing will" out of so much of that estate as might come to him or to his estate and from the same source to his "own nieces and nephews" Grace De Lancey Verplanck Newlin, Mabel Thurston Whittemore, Louis Hoyt Whittemore, Adele De Wint Van Voorhis, Ganett Sprarert De Wint each $7,000, to Francis Adams De Wint $3,200, to his "own grand nieces and nephews" Marjorie Couenhoren De Wint, Katherine Belden De Wint, and Grace De Lancey Newlin, each $3,000; to Alice B. Thurston, William S. Thurston, and John R. Thurston, $2,000 each; to John, William, George, Annie, and Myrtle Hanold $500 each; to different friends and institutions, legacies ranging from $150 to $600 each. He further provided that these legacies should be payable "immediately after the death" of his wife, and that none should be payable before his share of the estate of his brother became payable to him or to his estate. He then provided in the thirteenth, fourteenth, fifteenth, seventeenth, and eighteenth clauses of his will, as follows:

"Thirteenth. I direct that all the surplus proceeding from this will and codicil shall be equally divided between my wife the aforesaid Kate Hoyt and my next of kin such as my nieces and my nephews as well as my own grand nieces then living.

Fourteenth I will that all the legacies in this codicil shall be payable out of my share in the residuary estate of my brother the late Louis Thurston Hoyt of New York that may come to me or to my estate, should my share in the residue of my brothers estate remaining after deducting the Thirty four thousand dollars $34,000...