Riggs Nat. Bank of Washington, D.C. v. Zimmer

• Decision Date: 22 March 1973
• Citation: 304 A.2d 69
• Parties: The RIGGS NATIONAL BANK OF WASHINGTON, D.C. and Edward H. Porter, Jr., Trustees under the Will of Willard Saulsbury, Petitioners, v. Ruth Anna ZIMMER et al., Respondents.
• Court: Court of Chancery of Delaware

Page 69

304 A.2d 69

The RIGGS NATIONAL BANK OF WASHINGTON, D.C. and Edward H Porter, Jr., Trustees under the Will of Willard Saulsbury, Petitioners, v. Ruth Anna ZIMMER et al., Respondents.

Court of Chancery of Delaware, New Castle County.

March 22, 1973.

Rodney M. Layton, and Richard G. Elliott, Jr., Richards, Layton & Finger, Wilmington, and Frederick M. Bradley, Hogan & Hartson, Washington, D.C., for The Riggs National Bank of Washington, D.C., and Edward H. Porter, Jr., Trustees.

William S. Potter, Charles S. Crompton, Jr., Michael D. Goldman, and Steven R. Karlsen, Potter, Anderson & Corroon, Wilmington, for Ruth Anna Zimmer and certain other respondents.

Andrew G. T. Moore, II, Killoran & Van Brunt, Wilmington, for certain minor and other respondents.

Johannes R. Krahmer, Morris, Nichols, Arsht & Tunnell, Wilmington, for Lillian P. Hunter and certain other respondents.

Wayne N. Elliott, Prickett, Ward, Burt & Sanders, Wilmington, guardian ad litem for Susan M. Higel.

Arthur L. Rocklin, Rocklin & Rocklin, Baltimore, Md., for respondent Mary Lou Ponder Goembel.

Paul R. Reed, Georgetown, for respondent James H. Ponder.

DUFFY, Chancellor:

The Riggs National Bank of Washington, D.C. and Edward H. Porter, Jr., trustees under the will of Senator Willard Saulsbury (petitioners) seek instructions as to the distribution of trust corpus. Respondents are certain descendants of the Testator's grandfathers who were living on the date of the Testator's death (Hunter respondents) and/or on the date of death of the Testator's grandnephew, Willard Saulsbury, III (Zimmer respondents), and Susan M. Higel, an adopted daughter of one of the descendants. This is the decision on cross motions for summary judgment.

A.

The Testator signed his will on June 18, 1926 and a codicil on January 11, 1927. The basic plan provided for payment of debts and taxes, bequest of a desk, devise of the Saulsbury farms in Kent County, gifts to churches and charities and a life interest in the residue to the Testator's widow. The remainder was given to a residuary trust with income and principal to be applied to pay bequests and annuities to named relatives. All income and principal not so applied was ordered accumulated and paid over absolutely, free and discharged from trust, to that son of Willard, III, who first attained the age of twenty-one years. The Testator then directed:

'Should the said Willard Saulsbury have no son or have no son who shall attain the age of twenty-one years, then and in that event I direct my trustees to pay the rest, residue and remainder of the trust estate as aforesaid to the respective descendants of William Saulsbury and John Ponder my two grandfathers in equal shares Per capita upon the death of the survivor of the other beneficiaries of the said trust now living or upon the death of the survivor (if more than one) of the sons of the said Willard Saulsbury before attaining the age of twenty-one years--whichever shall last occur.'

Willard Saulsbury died on February 2, 1927, his wife died in May 1927, and his grandnephew, Willard, III (Bud), died on July 21, 1971 without producing a son. Thus the last contingency, and presumably the one he wanted least, came to pass. And with it came the uncertainties which prompted the bill for instructions.

B.

The complaint seeks instructions on two questions:

(1) Is the class of descendants to be determined as of the date of the Testator's death (1927) or as of the date of death of Willard, III (1971)? ¹

(2) If the class is to be determined as of 1971, is Susan M. Higel, an adopted child of one of the descendants, to be included in the class?

C.

It is settled law in Delaware that, in the absence of a clear and unambiguous manifestation of contrary intent, next of kin are determined as of the date of death of the ancestor and not as of the date of death of the life tenant. That has just been restated by the Supreme Court in affirming a decision by this Court. Bank of Delaware v. Bank of Delaware, Del.Ch., 289 A.2d 639 (1972), aff'd Del., 301 A.2d 280 (1973). However, as our Courts have said, this is a rule of construction only and does not apply when the instrument, taken as a whole, manifests, clearly and unambiguously, an intent on the part of the testator to have his next of kin determined as of the date of death of the life tenant. Delaware Trust Company v. McCune, Del.Ch., 269 A.2d 256 (1970), aff'd, Del., 280 A.2d 534 (1971) sub nom., Bank of Delaware v. Delaware Trust Company.

Here, Senator Saulsbury provided for all contingencies but he did not clearly state on which of the two possible dates the class of descendants was to be determined. The trustees' first question thus calls for construction of the will with the object of ascertaining and giving effect to the intent of the Testator as shown by the provision in question and the instrument as a whole. Bird v. Wilmington Society of Fine Arts, Del.Supr., 28 Del.Ch. 449, 43 A.2d 476 (1945); Delaware Trust Co. v. Delaware Trust Co., Del.Ch., 33 Del.Ch. 135, 91 A.2d 44, 38 A.L.R.2d 318 (1952). The search, in the language of Bird, is for the 'true meaning and intent of the testator'. Any judicially created rule of construction must be subordinate to that objective. And so must the rule as to early vesting. Sussex Trust Co. v. Joseph, Del.Ch., 1 A.2d 614 (1938).

The Hunter respondents urge that since the Testator's intent is unclear, early vesting is strongly favored and the class of descendants must be determined by application of the rule of construction stated in Bank of Delaware, i.e., as of the Testator's death. They argue that membership in the class includes only those Saulsbury-Ponder descendants living on February 2, 1927 and, under Stabler v. Ramsey, Del.Ch., 30 Del.Ch. 439, 62 A.2d 464 (1948), rev'd on other grounds, 32 Del.Ch. 547, 88 A.2d 546 (1952), a vested remainder was created in them; they say that membership in the class closed with the Testator's death. Restatement of Property § 294. The Zimmer respondents and the guardian for Miss Higel argue that the will shows a clear intention to have the class determined as of the date of Willard, III's death, and that this intent precludes the application of any rule of construction.

Under the Bank of Delaware rule the class of descendants is to be determined as of the date of Senator Saulsbury's death, 1927, unless he clearly manifested an unambiguous intent to have the determination made as of a later date. The Hunter respondents have the benefit of that rule and they must prevail, absent the explicit finding which is required for a different date.

In trying to ascertain intent, we must focus on time: what time or date did the Testator have in mind when he was, in Judge Rodney's phrase, seated at his desk and providing for the last contingency? Clearly he did not know which class would take--indeed, the record shows that he hoped that neither would. He wanted the balance of his estate to go to a child not yet born but of whom he dreamed and for whom he planned. We know that the object of his bounty was to be a child of his grandnephew, that the child was to be a boy and that the boy was to be twenty-one years old. And in giving to that child the Testator had a purpose, which I have set out in the footnote. ²

At the time when the Testator wrote his will, Bud Saulsbury was nineteen years of age and unmarried. And it was his son (to be) whom the Testator chose to be, as Vice Chancellor Marvel observed in a recent opinion involving this same estate, the 'primary remainderman', In re Trust Estate of Saulsbury, Del.Ch., 233 A.2d 739 (1967). Beyond doubt the Testator looked to the future in making that selection. Indeed, in making the selection he conditioned it upon an event which by his own definition could not occur for twenty-one years. That manifests, clearly and unambiguously, an intention to have the beneficiary determined long after he wrote the will and, in the ordinary course of events, long after he had died.

The devise of the Saulsbury farms in Kent County manifests an equally significant intent as to both future events and beneficiaries. Thus the Testator gave a life estate in the farms to his cousin, James, followed by a life estate to James' son (Bud) and then in fee simple 'to the eldest son (of Bud) then living'. In the absence of such a son the fee was given 'to the eldest male descendant' of Bud and, in default thereof, then 'to the eldest female descendant' of Bud. Again, the primary remainderman of these two to three hundred acres of land could not be known, in the ordinary course of events, for more than two decades after the Testator wrote his will.

It is against these specifics that one must read the critical clause in the will. When the Testator came to his alternative plan he based this on the proviso that should Willard, III, 'have no son or have no son who shall attain the age of twenty-one year'. Certainly these were events unrelated to the Testator's death. They concerned future events, i.e., Willard, III's death or failure of a son of his to reach age twenty-one. And, said the Testator, 'then' and 'in that event' the remainder goes to the Saulsbury-Ponder descendants. Whatever these words may mean in other instruments, I am satisfied that they here reflect an...