Ryan v. Herbert

• Decision Date: 15 May 1946
• Docket Number: 124.
• Citation: 47 A.2d 360,186 Md. 453
• Parties: RYAN v. HERBERT et al.
• Court: Maryland Court of Appeals

47 A.2d 360

186 Md. 453

RYAN v. HERBERT et al.

No. 124.

Court of Appeals of Maryland

May 15, 1946

Appeal from Circuit Court of Baltimore City; Joseph Sherbow, Judge.

Proceeding by Harold Herbert and others against James J. Ryan, guardian ad litem for Barbara J. Herbert and Eileen Joyce Herbert, and others for a declaratory decree construing rights of the various parties under certain provisions of the will of Arthur Nattans, deceased. From an adverse decree, guardian appeals.

Affirmed.

J Richard Wilkins and J. Francis Ford, both of Baltimore (Joseph H. A. Rogan, of Baltimore, on the brief), for appellant.

Randolph Barton, Jr., of Baltimore (Lee S. Meyer, of Baltimore, on the brief), for appellees.

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

MARBURY, Chief Judge.

The petition, through which this case arises, was filed on July 10, 1945 in a proceeding in the Circuit Court of Baltimore City, instituted about fifteen years before, for the purpose of passing upon questions involved in a trust under the will of Arthur Nattans, who died in Baltimore 40 years ago. The petition was filed by those receiving income under the trust. The trustees also joined. The purpose was to obtain a declaratory decree construing the rights of the petitioners and others to certain income bequeathed under the tenth section of the will. All living persons who might possibly have an interest were made parties, and guardians ad litem were appointed for the minors. The present appeal is taken by a guardian ad litem for two great grandchildren of the testator who have no present interest in the income, but whose possible interest in it is denied by the decree appealed from. Their guardian ad litem questions the propriety of a declaratory decree at this time and also questions the correctness of the decree passed. Before we discuss these matters, the will and the asserted facts will be considered.

The will is somewhat unusual, due to the circumstances under which the testator found himself. He owned 396 shares out of a total outstanding issue of 400 shares of common stock of The Read Drug and Chemical Company. This was apparently the most valuable item in his estate. From it he arranged a trust estate to last until the death of the last one of his children. This was done by paragraph 6 of the will. He had eight children living at his death, and each of these children was specifically named, and the income from a certain number of shares was bequeathed to each. The number of shares differed. Edith Nattans Hecht, Hortense Nattans Solomon and Rita Nattans Myers each received the income from 60 shares; Arthur Nattans, Ralph Nattans and Emily Nattans Herbert each received the income from 40 shares, and Addie Nattans Bachrach and Samuel A. Nattans each received the income from 29 shares. The made a total of 358 shares from which the income went to his children. The income from the remaining 38 shares was given to others, and we are not now concerned with this. The tenth paragraph of the will provides what is to happen in the event of the death of any of the children, and what is to happen to the entire trust at the death of the last survivor. As this is the paragraph containing the clause which was interpreted by the decree appealed from, we insert it in full.

'Tenth In the event of the death of any of my children above named during the continuance of this trust, without leaving issue him or her surviving, the income herein given to the child so dying without issue living at his or her death shall be divided equally among his or her surviving brothers and sisters annually during the continuance of this trust. And in the case of the death of any one of my said children during the continuance of said trust leaving issue him or her surviving, the income of the share of the one so dying shall go to and become the property of his or her child, if only one, or children, if more than one, equally, share and share alike. Upon the death of the last survivor of all of my said eight children this trust shall cease, and thereupon the entire trust property shall be divided by my said Trustees, or their successors in the trust among the issue and descendants of such of my children as may have died leaving lawful issue him or her surviving per stirpes and not per capita. And the said trustees, and their successors in the trust, are authorized and directed to make, execute and deliver all such deeds and instruments of conveyance or assignment as may be necessary to make said division.'

The present proceeding is concerned entirely with income and has nothing to do with the final disposition of the corpus of the trust estate, which by the terms of the tenth section is not divided in the same manner as the income. The present situation is that four of the children have died, each of them survived by children, and there are four living children, three of whom now have children living, and one of whom has no descendants living. Under a decree passed in the case on December 28, 1942, the income of the three then deceased children was directed to be paid to their living children who are the grandchildren of the testator. The same situation now exists as to the income of another child since dying, who left two children. None of these children of the testator left issue of deceased children. The two questions which the Court is now asked to pass upon are '(a) In the event of the death of a child of the Testator survived by issue, must the issue thereafter to take such child's income be literally only a child or children of the dying child, or in the event of there being at that time any deceased child of the dying child having issue at that time surviving would such issue take per stirpes the share of income that the said deceased child would have taken if living? (b) Do the issue of a dying child of Testator, who succeed to the income formerly payable to such dying child, and whether such taker so succeeding be literally a child or a later descendant of such dying child, take a vested interest in such income until the expiration of the trust, so that such income thus acquired is subject to assignment by such new taker, or if not assigned would pass as part of the estate of such new taker payable to the legatee of such taker if bequeathed or to the distributee of such taker if not disposed of by Will?'

The immediate desire of the petitioners for a determination of these questions is to have settled the power vel non of the grandchildren now receiving income to dispose of their right to receive it by assignment or will. In other words, is that right vested, or is it for life only. The further question is whether, in case any of the remaining living children of the testator die leaving both children and the issue of deceased children, or no children and the issue of deceased children, do such issue of deceased children take? The trustees are not now confronted with any of these questions and it is possible, although not probable, that they may never be. On the other hand, they may arise at any time. Under these circumstances the first question for our consideration is whether the petitioners have a right now to a declaratory decree.

The Uniform Declaratory Judgments Act, codified as Article 31A of the Annotated Code, was repealed and re-enacted by the Act of 1945, Chapter 724. The purpose of the changes made was to broaden the scope of the Act in the light of some previous decisions of this Court. There had always been in the Act (Sec. 4) provisions authorizing the trustee, legatee, next of kin or cestui que trust, to have a declaration of rights to determine any question arising in the determination of an estate or trust, including questions of construction of wills. This Court has acted under this section. Hart v Mercantile Trust Co., 180 Md. 218, 23 A.2d 682. In the recent case of Knox v. Stamper, Md., 46 A.2d 361, 364, the bill, brought to construe a will, was questioned because it was filed before, rather than after a sale. The question at issue was whether a particular property was liable for sale under a proper construction of the will. We saw no force in the suggestion that the bill was prematurely brought, and Judge Henderson, in the opinion, said, 'Certainly such a bill might be brought on the theory of declaratory relief.' The appellant finds in Section 6 of Article 31A, as amended, a statement that relief can be granted where an actual controversy exists or where antagonistic claims are present which would indicate imminent and inevitable litigation, or where a party asserts a status or right and there is a...