Purifoy v. Mercantile-Safe Deposit and Trust Co., Civ. A. No. 72-1040-N.

• Decision Date: 11 March 1974
• Docket Number: Civ. A. No. 72-1040-N.
• Citation: 398 F. Supp. 1075
• Parties: Carolyn Bauernschmidt PURIFOY, et al. v. MERCANTILE-SAFE DEPOSIT AND TRUST COMPANY, Trustee, et al.
• Court: U.S. District Court — District of Maryland

398 F. Supp. 1075

Carolyn Bauernschmidt PURIFOY, et al. v. MERCANTILE-SAFE DEPOSIT AND TRUST COMPANY, Trustee, et al.

Civ. A. No. 72-1040-N.

United States District Court, D. Maryland.

March 11, 1974.

COPYRIGHT MATERIAL OMITTED

J. Nicholas Shriver, Jr., William A. Snyder, Jr., and Ober, Grimes & Shriver, Baltimore, Md. (and Ben R. Miller, Baton Rouge, La., of counsel), for plaintiffs.

Robert M. Thomas, Alexander I. Lewis, III, and Venable, Baetjer & Howard, Baltimore, Md., for defendant Mercantile-Safe Deposit and Trust Co., as Trustee.

Daniel H. Honemann, Walter E. Black, Jr., and Clapp, Somerville, Black & Honemann, Baltimore, Md., for defendants Bauernschmidt, Thompson, Bauernschmidt, Murray, Roberts, Bartlett, Requardt and Valiant.

Allan H. Fisher, Jr., of Baltimore, Md., for defendant Mercantile-Safe Deposit and Trust Co., as Trustee.

NORTHROP, Chief Judge.

The plaintiffs have instituted this suit for a declaratory judgment pursuant to 28 U.S.C. §§ 1332(a) and 2201. The plaintiff, Carolyn Bauernschmidt Purifoy, is a resident of Texas, and the plaintiff, Grace M. Bauernschmidt, is a resident of Mississippi; the defendants are residents of Maryland, Connecticut and Virginia. The parties all agree that Maryland law governs the construction of the four wills and one deed of trust in question.

In general, all five instruments create trusts, the income or portion of income thereof to be paid to William Bauernschmidt, Jr. for his life, and upon his death the income and/or principal to be paid to the said William Bauernschmidt, Jr.'s "children" or "descendants" living at his death. If he should die without child or descendant, the share would be distributed in various ways to William Bauernschmidt, Jr.'s brothers, sisters, first cousins, nephews, or nieces. Each trust instrument was executed and became effective prior to June 1, 1947.

William Bauernschmidt, Jr. and his wife Grace were married in January, 1940. At the time of their marriage, Grace already had a natural daughter living with her, the plaintiff Carolyn. After two attempts to have children by Grace resulted in miscarriages, William legally adopted Carolyn on January 13, 1948. William Bauernschmidt, Jr. died on July 24, 1972.

The critical question presented by the instant case is as follows:

Do the terms "child," "children," "descendants," and similar terms used in the five trust instruments include the plaintiff Carolyn Bauernschmidt Purifoy, an adopted child, (and her descendants)?

The basic function of a court in the construction of wills or deeds of trust is to ascertain and effectuate the intention of the testator or settlor. E. g., Leroy v. Kirk, 262 Md. 276, 277 A.2d 611 (1971); Marty v. First National Bank, 209 Md. 210, 120 A.2d 841 (1956); 4 Page, Law of Wills § 30.6 (Bowe-Parker ed. 1961); T. Atkinson, Wills § 146 (1953). The intention of the testator is found first in the instrument itself and the plain meaning of the words used therein. Wesley Home, Inc. v. Mercantile-Safe Deposit & Trust Co., 265 Md. 185, 289 A.2d 337 (1972); Cole v. Bailey, 218 Md. 177, 146 A.2d 14 (1958); Marty v. First National Bank, supra. If this analysis reveals a latent ambiguity, extrinsic evidence of the testator's declarations or of other relevant circumstances may be admitted to show what the testator understood was signified by the words employed in the will. Shellady, Inc. v. Herlihy, 236 Md. 461, 474, 204 A.2d 504 (1964); Darden v. Bright, 173 Md. 563, 568-69, 198 A. 431 (1938).

Often, however, after all available admissible evidence is introduced, the meaning of the instrument and its application to external facts may still be in doubt. L. Simes, Law of Future Interests § 87, at 183 (1966); T. Atkinson, supra, § 146, at 813. In these situations it is impossible to determine the testator's actual intent, since the testator probably never contemplated the contingency that has given rise to the litigation. Boal v. Metropolitan Museum of Art, 292 F. 303 (S.D.N.Y.1923); 4 Page, supra, § 30.3, at 10; Gray, Nature and Sources of Law 316 (1909). The task of the court is no longer a search for the actual intent of the testator; rather, the court endeavors to assign a meaning to the language of the will that comports with sound public policy. L. Simes, supra; 4 Page, supra, § 30.3, at 10-12; T. Atkinson, supra, § 146, at 814.¹ Since certain words, phrases, and other language are often the subject of litigation, rules and principles of construction have emerged and are used by the courts in a manner similar to rebuttable presumptions. These rules have their origin in prior decisional law (see, e. g., In re Paulsen's Estate, 113 Colo. 373, 158 P.2d 186 (1945) (presumption against intestacy); Fleshner v. Fleshner, 378 Ill. 536, 39 N.E.2d 9 (1941) (presumption in favor of early vesting)) or in legislative enactments (see, e. g., Prince v. Nugent, 93 R.I. 149, 172 A.2d 743 (1961) (statute includes adopted children); In re Iburg's Estate, 196 Cal. 333, 238 P. 74 (1925) (statute covering the revocation of a prior will by a later one)). Therefore, a court should seek first the actual intention of the testator from the will and pertinent external circumstances; only if this investigation is unsuccessful should the court invoke the rules of construction to ascertain the meaning of the language employed.

From a complete consideration of all the trust instruments in the instant case, this Court finds that it is impossible to determine whether the testators or settlors actually intended to include or exclude adopted children. The only terms used to describe the class in question are "child," "children," and "descendants." No reference is made to adopted children in any of the instruments. At the time each instrument was executed, William Bauernschmidt, Jr. was unmarried and without any natural children. Thus the terms "child," "children," etc. could not have designated any particular person or persons. The gift was to a class that would come into existence some time in the future.

The defendants argue that the intention of the testator is clear and unambiguous, since the words "child" or "children" excluded adopted children under the law prior to 1947, and the testator is presumed to know the law and to execute his will in accordance with the law at that time. This argument, however, fails to properly distinguish between the actual intent of the testator in employing the words in question and the meaning that a rule of construction assigns to them. Md.Ann.Code art. 16, § 78 (1924), in effect from 1892 to 1947, de-78 (1924), in effect from 1892-1947, defined "the term `child' or its equivalent" as including only the adopted child of the testator unless the contrary plainly appears, and Md.Ann.Code art. 16, § 78(c) (1973), in effect from 1947 to present, defines a "child" as including any adopted person unless the contrary plainly appears. From these two statutes, it can readily be inferred that the terms "child," "children," and "descendants" by themselves do not indicate the actual intention of the testator towards adopted children. Otherwise the Legislature would not have assumed the task of assigning a meaning to the words. Furthermore, for these words to reflect a clear actual intention, this Court would have to make the unwarranted assumption that the testator actually considered the contingency of adoption in choosing the words. The defendants, though, find actual intention in a combination of the terms "child," "children," etc. and the rule of construction prior to 1947, which excluded adopted children of one other than the testator. In other words, the defendants would have an earlier rule of construction, without anything else, become part of the testator's actual intent so as to defeat the retroactive application of a subsequent and conflicting rule of construction. By definition, a rule of construction is not synonymous with or a part of the actual intent of the testator. Its function is to assign a meaning to the words when the testator's actual intention cannot be determined, and only after the failure to find an intention can a rule of construction be considered. See Davis v. Mercantile-Safe Deposit and Trust Co., 235 Md. 266, 269, 201 A.2d 373 (1964); Judik v. Travers, 184 Md. 215, 221, 40 A. 2d 306 (1944); Veditz v. Athey, 239 Md. 435, 450, 212 A.2d 115 (1965) (Horney, J., dissenting); L. Simes, supra, § 87, at 183; 4 Page, supra, § 30.4.² Therefore, since the testators used only the words "child," "children," and "descendants" and since the will and surrounding circumstances fail to reveal that the contingency of adoption was ever considered, no actual intention of the testator concerning adopted children is present. The meaning to be ascribed to the words in question is to be found in one of the two applicable rules of construction.³

Since adoption was unknown to the common law, the state statutes with their judicial construction govern the rights and liabilities of adopted children. In Maryland, the statute in effect from 1912 to 1947 (the period when the five trust instruments at issue became effective) was Article 16 §§ 76 and 78, which read as follows:

76. The effect of such decree of adoption shall be to entitle the child so adopted to the same rights of inheritance and distribution as to the petitioner's estate, and the same rights or protection, education and maintenance as if born to such petitioner in lawful wedlock, and the natural parents of such child shall be freed from all legal obligation towards it, provided that where such child inherits property from its adopted parent or parents, upon it dying intestate without issue the property thus inherited shall descend and be distributed to the same persons who would take the same by inheritance and in course of distribution if the child had been the child of the adopted parents born to them in lawful wedlock; provided, however, that this shall not be construed to limit or interfere

...