Sabit v. Safe Deposit & Trust Co. of Baltimore

• Decision Date: 08 December 1944
• Docket Number: 37.
• Citation: 40 A.2d 231,184 Md. 24
• Parties: SABIT v. SAFE DEPOSIT & TRUST CO. OF BALTIMORE et al.
• Court: Maryland Court of Appeals

40 A.2d 231

184 Md. 24

SABIT v. SAFE DEPOSIT & TRUST CO. OF BALTIMORE et al.

No. 37.

Court of Appeals of Maryland

December 8, 1944

Rehearing Denied Jan. 29, 1945.

Appeal from Circuit Court of Baltimore City; William L. Henderson Judge.

Suit in equity by the Safe Deposit & Trust Company of Baltimore succeeding trustee under the will of Alfred J. Ulman deceased, against Halil Sabit and others for construction of a clause in a codicil to the will. From a decree construing the clause, named defendant appeals.

Reversed and remanded.

Raphael Walter, of Baltimore (Nyburg, Goldman & Walter, of Baltimore, on the brief), for appellant.

Arthur W. Machen, of Baltimore, for infant appellees, Halil Aziz von Scheidt and Omar von Scheidt.

Niles, Barton, Morrow & Yost and Carlyle Barton, all of Baltimore, for appellee Safe Deposit & Trust Co.

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

COLLINS Judge.

Alfred J. Ulman of Baltimore City died testate on October 13, 1906, survived by his widow, Clementine H. Ulman; a son, Jacob Ulman; and four daughters, Bertha U. Walter, Valerie H. Arnold, Alberta Ulman Sabit, and Nanine H. Sabit.

By his will executed on February 26, 1891, he devised and bequeathed his estate to his wife for life, she to receive four-ninths of the income and each child to receive one-ninth. The remainder after his wife's death was devised and bequeathed to his five children equally with a provision that the shares of any of his children who might be under thirty-five years of age and unmarried be held in trust.

By the first and only codicil to the will executed on April 12, 1904, the disposition of his estate after his widow's death was revoked, and under the first, second, and third items of the codicil, after his wife's death, a one-fifth share was left absolutely to his daughter, Bertha Ulman Walter; a one-fifth share absolutely to his daughter, Valerie H. Arnold; and a one-fifth share absolutely to his son, Jacob A. Ulman. Clementine H. Ulman, the widow, died on February 8, 1927, and three-fifths of the estate was distributed absolutely to these three children who are now deceased and survived by issue. Two-fifths of the estate was held in trust under the terms of the codicil for the daughters, Alberta U. Sabit and Nanine U. Sabit.

The Safe Deposit & Trust Company of Baltimore, succeeding trustee under the will of the testator, being unable to determine the provisions of the fourth clause of the codicil, filed a bill of complaint in the Circuit Court for Baltimore City against all parties thought to have a possible interest in the estate, asking the Court to assume general jurisdiction of the trust and to construe the fourth clause of the codicil of the will. The parties were brought in either by summons, acceptance of service, order of publication, answers filed by counsel, or by service of process on the Alien Property Custodian at Washington as some of the interested parties are enemy aliens.

For a proper interpretation of the fourth clause of the codicil, it is necessary to quote it in full as follows:

'In trust to invest and to hold another fifth part and to collect the income therefrom arising and to pay the net amount thereof to my daughter, Alberta Ulman Sabit, wife of Aziz Sabit, for and during the term of her natural life, and from and after her death to divide the corpus of her fifth part into as many shares as she may leave children living at the time of her death, and to hold and to invest one each of such shares for each of her said children then living, in trust, as follows: In trust to collect the income from the share of each of her children, who may be living at the time of my death and to apply the net amount thereof, or so much thereof as the said trustees or the survivor may deem proper, to its maintenance, education and support until it shall have attained the age of twenty-one years and then to pay over to it any previously accrued income that may not have been so applied, and thereafter to collect and pay over to it the net income of its share for and during the term of its natural life, and from and after its death to convey transfer and pay over the corpus of its share to the then living child, or children, and the then living descendants of any then deceased child, of such child, per stirpes and not per capita, share and share alike. And in trust to collect the income from the share of each of her children, who may be born after my death and living at the time of her death and to apply the net amount thereof, or so much thereof as the said trustees or the survivor may think proper to its maintenance, education and support until it shall have attained the age of twenty-one years, and then to convey, transfer and pay over the corpus of its share, with any undisposed of income to such child absolutely.

'Should my said daughter, Alberta, die without leaving a child or children or descendants, then living, then I give, devise and bequeath her said one-fifth part to her sisters and brother then living and to the then living descendants of any of her then deceased sisters or brother per stirpes and not per capita share and share alike--the share thereof of my daughter, Nanine, or her child, children or descendants to be held by the said trustees upon the same trusts and subject to the same limitations as the fifth part hereinafter devised and bequeathed in trust for her. Should any child of said daughter, Alberta, living at the time of my death die without leaving any child, children or descendants living at the time of its death, I give, devise and bequeath the share of such child so dying to the said trustees and the survivor and the heirs, executors, administrators and assigns of the survivor, in trust for such child's surviving sisters and brothers, and the then living descendants of any then deceased brother or sister, upon the same trusts and subject to the same limitations as the share by this paragraph originally devised and bequeathed to them respectively, and should any such child die without leaving any child, children or descendants then living, then I give, devise and bequeath its share to my then surviving child or children, and the then living descendants of any of my then deceased children, per stirpes and not per capita share and share alike. Should any of the children of my daughter, Alberta, born after my death die before attaining the age of twenty-one years, without leaving a child or descendant, I give, devise and bequeath its share to the said trustees and the survivor and the heirs, executors, administrators and assigns of the survivor in trust for its surviving brothers and sisters and the then living descendants of any then deceased brother or sister per stirpes and not per capita, share and share alike. And should any such child, of my said daughter Alberta, born after my death die before attaining the age of twenty-one years, without leaving surviving any brothers or sisters or descendants of a brother or sister, then I give, devise and bequeath its share to my then surviving child or children and the then living descendants of any of my then deceased children per stirpes and not per capita, share and share alike.' (Italics supplied here.)

Testimony was taken in the case. It is shown that at the time of the execution of the original will in 1891, the testator's daughters, Alberta and Nanine, were unmarried and under thirty-five years of age. The daughter, Nanine, between the time of the execution of the will and that of the codicil, married Faid Sabit, and Egyptian. She died on May 24, 1940, without issue. In accordance with the provision of the fifth item of the codicil, as to which there is no dispute, the corpus of the share held in trust for Nanine's benefit was divided and distributed. A one-fourth part became a part of the corpus of the share held in trust for her sister, Alberta Ulman Sabit, under the fourth clause of the codicil of the will aforesaid.

It also develops that between the dates of the execution of the original will and the codicil, the daughter, Alberta, married Aziz Sabit, an Egyptian. By that marriage she had three children: A daughter, Aziza, who married a German national, Max von Scheidt; a son, Halil Sabit; and a daughter, Alya Sabit. Halil and Aziza were born before the death of the testator. The date of birth of Alya is not shown. She predeceased her mother, dying without issue. Aziza von Scheidt, born about 1894, died about the year 1931 leaving surviving her two children, infants now under the age of twenty-one years, Halil Aziz von Scheidt, now about seventeen years of age, and Omar von Scheidt, now about fifteen years of age, German nationals, born after the death of the testator. Halil Sabit, born about 1904, is now living, married with no children, and claims to be the sole beneficiary of the trust created for his mother, Alberta Ulman Sabit.

At the hearing held by the Chancellor, the claim of Halil Sabit to an interest for life in all of the trust created for Alberta Ulman Sabit was presented by his counsel, and the conflicting claim of Halil Aziz von Scheidt and Omar von Scheidt to one-half the trust created for Alberta Ulman Sabit was presented by counsel appointed for them by the Court. The Chancellor decreed in effect that the trustee divide the residuary estate held in trust for Alberta Ulman Sabit into two equal parts, one part to be held in trust for Halil Sabit during his life under the provisions of the codicil and that the other of said two equal parts be held in trust by the plaintiff to transfer and convey the same, together with all net income therefrom, to the children of Aziza Sabit von Scheidt, deceased, daughter of Alberta Ulman Sabit,...