Perkins v. Iglehart

• Decision Date: 01 November 1944
• Docket Number: 4-7.
• Citation: 39 A.2d 672,183 Md. 520
• Parties: PERKINS et al. v. IGLEHART et al. RUCKER v. SAME. BE GOLE v. SAME. RUCKER et al. v. SAME.
• Court: Maryland Court of Appeals

39 A.2d 672

183 Md. 520

PERKINS et al. v. IGLEHART et al.

RUCKER v. SAME.

BE GOLE v. SAME.

RUCKER et al. v. SAME.

Nos. 4-7.

Court of Appeals of Maryland

November 1, 1944

Rehearing Denied Dec. 8, 1944.

Appeal from Circuit Court, Baltimore County; J. Howard Murray Judge.

Proceedings by the Safe Deposit & Trust Company of Baltimore, as trustee under the will of Lucy James Dun, deceased, against W. Allan Perkins and another, executors under the will of William James Rucker, deceased, Louis S.D. Rucker, Ari M. Be Gole executor of another decedent's estate, Frances Fleitz Rucker and J. Deane Rucker, Jr., and Lucy J. Iglehart and others, for construction of the will. From a decree construing the will, defendants' executors, Rucker, and Be Gole appeal.

Reversed and remanded for passage of a new decree in conformity with opinion.

Charles Markell, Edward H. Burke, G. C. A. Anderson, and G. Van Velsor Wolf, all of Baltimore (John S. Battle and C. Venable Minor, both of Charlottesville, Va., on brief in No. 4; Bowie & Burke, of Baltimore, on the brief in No. 5; Carman, Anderson & Barnes, of Baltimore, and Cary & BeGole, of Detroit, Mich., on the brief in No. 6; Jesse Slingluff and Marbury, Gosnell & Williams, all of Baltimore, on the brief, in No. 7), for appellants.

Charles G. Page, G. C. A. Anderson, Edward H. Burke, and G. Van Velsor Wolf, in No. 4; Chas. G. Page, Chas. Markell, G. C. A. Anderson, and G. Van Velsor Wolf, in No. 5; Chas. G. Page, Edward H. Burke, Chas. Markell, and G. Van Velsor Wolf, in No. 6; and Chas. G. Page, Edward H. Burke, Chas. Markell, and G. C. A. Anderson, in No. 7, all of Baltimore (White & Page, of Baltimore, on the briefs), for appellees.

Before MARBURY, C.J., and DELAPLAINE, COLLINS, GRASON, MELVIN, BAILEY, CAPPER, and HENDERSON, JJ.

MARBURY Chief Judge.

This case arose through a trustee's petition filed in the Circuit Court for Baltimore County, asking for a construction of the will of Lucy James Dun. She died in 1921, a widow with one child, a son, William James Rucker. All parties thought by the trustee to have a possible interest in the estate were brought in by summons or order of publication, and those claiming interest appeared by counsel. Testimony was taken, numerous exhibits were filed, and from the decision of the chancellor four appeals were taken, all combined in one record, and all heard together in this Court.

Mrs. Dun had been twice married. Her first husband was Major William A. Rucker. William James Rucker was the son of this marriage. Major Rucker died in 1893, and in 1899 Mrs. Rucker married her second cousin, James Dun, who died in 1908. There were no children of this marriage. The estate which Mrs. Dun left was a valuable one, consisting very largely of an interest she had in the business of R. G. Dun and Co. See Douglass v. Safe Deposit & Trust Co., 159 Md. 81, 150 A. 37. This interest became part of her residuary estate, was subsequently disposed of by the trustee, and the proceeds invested in securities which now constitute the estate which is to be distributed in these proceedings.

Mrs. Dun, in her will, gave various specific and pecuniary bequests, and then by the fourteenth clause provided as follows:

'14. All the rest and residue of my property of every kind, I give, devise and bequeath to the Safe Deposit and Trust Company of Baltimore, in trust to hold the same, with full power to the said Trustee, both as to this trust and as to the trust created by the second clause of this my will, to make and change investments from time to time in its discretion and to sell the whole or any part of the trust estate for any purpose which, in its discretion, may be for the best interest of the same, without obligation on the part of any purchaser to see to the application of the purchase money, and to collect the income of the said trust estate and, after deducting taxes and expenses of administration, to pay over the net income thereof in monthly or quarterly instalments, as it may deem best, to my son William James Rucker, during his life, into his own hands and not into the hands of another and without power of anticipation, or, if my said Trustee shall deem it to be for the best interest of my said son, to apply the said net income for his benefit and for the benefit of his family in its discretion, during his life; and from and after the death of my said son to set apart one-third of said trust estate and pay the net income thereof to his widow during her life or widowhood, and to hold the remaining two-thirds of said trust estate for the benefit of his child or children living at the time of his death and the descendants then living of his deceased children, per stirpes and not per capita, and to pay over and transfer the same, free of any trust, to such of them as shall attain the age of twenty-one years, the original share of each therein to be paid when such age is attained, and any addition thereto, accruing by reason of the death under such age of any beneficiary, to be paid upon such event or as soon thereafter as the person hereby entitled to receive the same is of full age, and until each of them shall attain such age, to apply his or her share, original or accruing, of the net income of said trust estate to and for his or her benefit, maintenance and education, in its discretion; but, if my son shall die without children or descendants him surviving, or if all of them shall die before attaining the age of twenty-one years, then to divide, pay over and transfer the same, free of any trust, to and among the persons who may be the next of kin of my said son according to the laws of Maryland at the time of his death; and from and after the death or remarriage of the widow of my said son, to hold the one-third part of the trust estate, so as above set apart for her, for the benefit of the child or children of my said son then living and the descendants then living of his deceased children, per stirpes and not per capita, under the same limitations as are herein above set forth as to the two-thirds part of the trust estate; but if there shall be no such children or descendants then surviving, or if all of them shall die before attaining the age of twenty one years, to divide, pay over and transfer the same, free of any trust, to and among the persons who would be the next of kin of my said son according to the laws of Maryland if he were living at the time of the death or remarriage of his widow. I authorize and empower my said Trustee to invest fifty thousand ($50,000.00) dollars of the trust estate, or so much thereof as may be requisite, in the purchase for my said son and his family of a home such as he may desire and select, the house and land so purchased to continue however as a part of the trust estate.'

The son, William J. Rucker, was twice married; both wives predeceased him. He was a resident of Virginia and died there December 19, 1941, testate, and without issue. W. Allen Perkins and George Pausch were made his executors. They are parties herein, and appellants in No. 4. The appellants in Nos. 5 and 6 are, respectively, a first cousin of William J. Rucker on his father's side, and the executor of a similar first cousin who has died since William J. Rucker's death. The appellants in No. 7 are the widow and administratrix and only child of another first cousin on the Rucker side, who, however, predeceased William J. Rucker. The appellees are three first cousins of William J. Rucker on his mother's side. They are nieces of the testatrix, Mrs. Dun. Other facts in the case will be mentioned and discussed when the parts of this opinion to which they are pertinent are reached.

All of the questions here involved concern that part of the residuary clause of Mrs. Dun's will which disposes of one-third of the residuary estate, after the death of the testatrix's son. There is no dispute that the two-thirds, after the death of the son without leaving any children or descendants, went to the next of kin of the son at the time of his death, and we are advised that it has already been so distributed. The remaining one-third, however, is set apart under separate provisions, and it is in respect to this one-third that the parties have conflicting theories.

It is contended by the Rucker executors that the two gifts over each to take effect from and after the death or remarriage of the son's widow, violate the rule against perpetuities. This rule is stated by Gray on Perpetuities, Fourth Edition, page 191, paragraph 201 as follows: 'No interest is good unless it must vest, if at all, not later than 21 years after some life in being at the creation of the interest.' The decisions of this Court follow this rule. It is stated in Graham v. Whitridge, 99 Md. 248, 274, 275, 57 A. 609, 671, 58 A. 36, 66 L.R.A. 408: 'The period fixed and prescribed by law for the future vesting of an estate or interest is a life or lives in being at the time of its commencement, and 21 years and a fraction of a year beyond, to cover the period of gestation; and, where property is rendered inalienable or its vesting is deferred for a longer period, the law denounces the devise, the bequest, or the grant as a perpetuity, and declares it void.' This statement is quoted with approval in the case of Gambrill v. Gambrill, 122 Md. 563, 89 A. 1094, and the Court further said, 122 Md. at page 569, 89 A. at page 1095: 'In determining this question of remoteness, there is an invariable principle that regard is to be had to possible, and not merely actual, events. It is not determined by looking back on events which have occurred and seeing whether the estate has extended beyond the prescribed limit, but by looking forward from the time the limitation was made and seeing...