Robinson v. Mercantile Trust Co. of Baltimore

• Citation: 24 A.2d 299,180 Md. 336
• Decision Date: 04 February 1942
• Docket Number: 5.
• Parties: ROBINSON v. MERCANTILE TRUST CO. OF BALTIMORE et al.
• Court: Court of Appeals of Maryland

24 A.2d 299

180 Md. 336

ROBINSON v. MERCANTILE TRUST CO. OF BALTIMORE et al.

No. 5.

Court of Appeals of Maryland

February 4, 1942

Appeal from Circuit Court of Baltimore City; J. Abner Sayler, Judge.

Suit by the Mercantile Trust Company of Baltimore, trustee, etc against Conway Robinson, administrator of the estate of Jane D. Robinson, and others. From an adverse decree, the named defendant appeals.

Decree reversed, and case remanded for further proceedings in accordance with opinion.

Ambler H. Moss, of Baltimore (Semmes, Bowen & Semmes, of Baltimore on the brief), for appellant.

George Ross Veazey, of Baltimore (Vernon Cook, of Baltimore, on the brief), for appellee.

Before BOND, C.J., and SLOAN, DELAPLAINE, COLLINS, FORSYTHE, and MARBURY, JJ.

MARBURY, Judge.

The corporate trustee asks herein the proper construction of the will of the late Anna W. Steel. The testatrix disposed of the rest and residue of her estate, including an estate over which she had the power of testamentary appointment under the will of her mother, in the third paragraph of her will, which reads as follows: 'All the rest, residue and remainder of my estate and property, of every kind whatsoever, and including the estate over which I have the power of testamentary appointment under the will of my said mother, I give, devise and bequeath to my husband, William B. Steel for the term of his natural life and no longer, and at his death I give, devise and bequeath the same absolutely to all of my nephews and nieces (but not great nieces and great nephews), as tenants in common to be equally divided between them, share and share alike. And I request the trustees appointed by the will of my said mother to pay to my said husband, so long as he shall live, my share of the trust income from her estate.'

The will of the testatrix was executed March 17, 1911. She died February 18, 1922, and the life tenant died September 25 1940. At the time of the making of the will, and also at the time of the death of the testatrix, there were living seven nieces and nephews of the testatrix. There were also living, at the time of the making of the will, two great nieces, and subsequently another great niece was born and three great nephews. One of the great nieces living at the time of the making of the will died before the death of the testatrix. The other five survived her.

At the death of the life tenant five of the nephews and nieces were living. One nephew had died testate, leaving a widow who is his executrix and sole legatee, but no descendants. One niece had died intestate, leaving a surviving husband who is her administrator, and three children. The question involved is whether the remainders created by the will vested as of the date of the death of the testatrix, or whether the vesting was postponed until the death of the life tenant. In the former case, the estate would be divided into seven parts, the executrix of the deceased nephew and the administrator of the deceased niece each receiving a part. In the latter case, the estate would be divided into five parts which would go to the four nieces and one nephew who survived the life tenant.

In the construction of a will, the whole effort is to ascertain the intention of the testator. Unless that intention conflicts with some positive or fixed policy of law, or some statute, it will be given the fullest possible effect. In ascertaining such intention, not only the actual words used in the will, but also the situation of the testator and his relations with the parties to whom he has devised or bequeathed his property are important elements. This rule is well expressed in the case of Henderson v. Henderson, 64 Md. 185, 1 A. 72, 73, in which this court said: 'The peculiar situation of this testatrix, and the relations subsisting between her and the recipients of her bounty, must therefore be considered in connection with the language of the document itself, in order that we may be fully enlightened in regard to the real motives and intent by which she was controlled in the execution of this will.'

The gift in remainder in the present case is not to parties who are mentioned by name. It is given to those who come within a description. It is therefore what is known as a gift to a class, and the precise question before us is whether that class opened at the death of the testatrix, or whether it opened at the time of possession, which, of course, was at the death of the life tenant. To put the question in another form, did the remainders to the nieces and nephews of the testatrix vest at the time of her death, or were they contingent upon the survival of the life tenant by the members of that class?

The court below reached the conclusion, from the language of the will, that the intention of the testatrix was that the remainders should not vest until the death of the life tenant. He based that conclusion upon two statements in the will. One of these was that the testatrix used two sets of verbs, as he said, or as it might be more correctly stated, she used the words 'I give, devise and bequeath' twice, the first time before the gift to the life tenant, and the second time, before the gift of the remainder. The other point was that the testatrix expressly excluded from her bequest great nieces or great nephews, and the effect of vesting the remainders at her death, would be that some of the great nieces and nephews would take, as heirs of their parents, when the estate came to be divided at the death of the life tenant.

There are other expressions in the will which might indicate a different intention. The testatrix gave the remainders to 'all my nieces and nephews.' This could be held to show that she did not want the gift to any of them to fail by reason of their deaths before the life tenant. She stated that her nephews and nieces were to take the remainder, 'as tenants in common, to be equally divided between them, share and share alike.' That clause negatives the principle of survivorship, which is the effect of postponing the vesting until the death of the life tenant.

It does not appear that the testatrix had any dislike of any of her great nieces and nephews, or that she had any particular reason for trying to prevent them from getting any of the property she was disposing of. She made it amply clear that the original division was only to include nieces and nephews, and not great nieces and nephews, but that might readily be construed as an effort to define precisely the class of people whom she desired to take, and the number of parts into which she desired her estate to be ultimately divided. It would unduly stretch her words to assume that she did not want any of her great nieces and nephews to inherit their parents share at the death of their parents. She did not attempt to prevent the children of those who survived the life tenant from inheriting, although she might have done so. There is no reason to suppose that she wished to prevent the children of those who died before the life tenant from being in the same position as the children of those who survived him.

On the whole, we are unable to say that the testatrix, by the terms of her will, expressly indicated that the vesting of the remainders which she left should be deferred until the death of the life tenant.

In the absence of any express statement to the contrary, remainders will be held to vest at the earliest possible moment. This rule of construction is based upon three reasons. The first is that testators usually have in mind the actual ownership of property by those to whom it is given, and are not concerned with technical distinctions which postpone such ownership. The second is that it is for the benefit of the public, generally, that titles should be vested, and should not depend upon future contingencies. The third is that a contingency may not happen, thereby a partial intestacy may ensue, and one who takes the trouble to make a will is supposed to desire to dispose of his entire estate by that instrument. The rule is not, however, to be substituted for the intention of the testator if the latter can be ascertained from the instrument. It is to be invoked only to aid that intention, and not to defeat it. It has its greatest application in those cases where there is doubt and difficulty, and the intention of the testator cannot be ascertained with reasonable certainty from the will itself. Grace v. Thompson, 169 Md. 653, 182 A. 573, 103 A.L.R. 589.

An examination of the cases decided by this court will show that the rules of construction above discussed have been universally applied in the determination of questions similar to that before us. The will is...