Safe Deposit & Trust Co. of Baltimore v. Lycett

• Decision Date: 10 June 1927
• Docket Number: 40.
• Citation: 138 A. 225,153 Md. 443
• Parties: SAFE DEPOSIT & TRUST CO. OF BALTIMORE ET AL. v. LYCETT ET AL.
• Court: Maryland Court of Appeals

138 A. 225

153 Md. 443

SAFE DEPOSIT & TRUST CO. OF BALTIMORE ET AL. v. LYCETT ET AL.

No. 40.

Court of Appeals of Maryland

June 10, 1927

Appeal from Circuit Court No. 2 of Baltimore City; Robert F Stanton, Judge.

"To be officially reported."

Proceedings between the Safe Deposit & Trust Company of Baltimore trustee, and others, and Isaac Cate Lycett and others. From the decree, the former appeal. Affirmed.

Argued before BOND, C.J., and PATTISON, URNER, ADKINS, OFFUTT, and PARKE, JJ.

John B Deming and W. Ainsworth Parker, both of Baltimore (John G Schilpp, of Baltimore, on the brief), for appellants.

Clarence K. Bowie and Edward H. Burke, both of Baltimore (Bowie & Burke, of Baltimore, on the brief), for appellees.

ADKINS J.

The late Isaac M. Cate, on April 6, 1921, executed a deed to the Safe Deposit & Trust Company of Baltimore of certain bonds and stocks enumerated in a schedule attached thereto, together with all bonds, stocks and securities which should be allotted to him on account of his share in the estate of his wife, in trust to collect the income therefrom, and to pay over annually to his niece, Catherine Hill, during her life $600, and to pay the balance of said income to himself during his life. The deed further provided that, after his death (subject to the payment of said annuity to said niece), the entire income of said estate should be divided into five equal parts and equally paid; one-fifth to each of his three daughters then living (naming them), one-fifth to the children of his deceased daughter Charlottie; and one-fifth to his son, Horace.

As to the shares of the income of each of his daughters, he directed that:

"The same be paid to each of them for and during the term of their respective natural lives, and upon the respective deaths of each of them her share of the principal of the trust estate is to be held by the trustee for her children and descendants until the youngest of her children shall arrive at twenty-one years of age; at which time I direct said trustee to pay the principal of such share to her said children then living and the descendants then living of her deceased children, per stirpes; and I direct that in the meantime the net income shall be paid to said children and descendants per stirpes, living from time to time as said income is collected. Should any one or more of my said daughters die without descendants, or in case she leave such descendants and they and all of their descendants shall die before the termination of the trust, as to her share, then I direct the share of such daughter shall be held by such trustee for the use and benefit of my other children and the children of my deceased daughter Charlottie, per stirpes upon the same trusts as their original shares.

As to the one-fifth share of my said son Horace, I direct said trustee to pay him the net income therefrom during his life and upon his death to divide and distribute the principal of said share as follows: If he die without leaving descendants, then one half of his one-fifth portion shall go to his wife, if then living, the other half, or the whole if no wife survive him to be divided and distributed among his nephews and nieces then living and the descendants then living of any deceased nephews or nieces, per stirpes. Should he die leaving descendants, then one-third of the principal of his share shall go to his wife, if living, the remaining two-thirds of his one-fifth share or the whole thereof if no wife survives him to be held for his children then living and the descendants then living of his deceased children per stirpes as follows: The shares of said children and the descendants of the deceased children shall continue to be held by said trustee until the youngest one of his children shall arrive at twenty-one years of age, when the distribution and division of the principal shall be made among his children and descendants then living per stirpes; the net income in the meanwhile to be paid to his children and descendants per stirpes living from time to time as said income is collected.

If my said son shall leave descendants and they and all of their descendants shall die before the termination of the trust, then upon the happening of such contingency I direct that his share of the principal, subject to the provision herein made for his wife, shall be paid to his nephews and nieces then living and the descendants then living of his deceased nephews and nieces per stirpes absolutely.

The share of the children of my deceased daughter Charlottie, shall remain in trust for their benefit until the youngest one of them shall reach thirty (30) years of age, at which time the principal of said share shall be paid over and distributed to them, or the survivors of them, and the issue of any of them who may be dead, per stirpes."

On August 30, 1926, the settlor, pursuant to the right reserved by the prior deed, executed another deed to the same trustee whereby he altered and amended the trust created by the prior deed as to the one-fifth share of his son, Horace. The only purpose of the amendment, apparently, was to omit the wife of Horace as a beneficiary, and to add a clause providing that, if any other share should accrue to the son, it should be held upon the same trusts as his original share. The only other change was to increase the number of commas. We are required to construe only that part of the amended deed in which the settlor provides for the devolution of the principal of the son's share at his death without leaving descendants; Horace having died without descendants, and leaving sixteen nephews and nieces. There were no deceased nephews and nieces. That portion is contained in four or five lines, as follows:

"If he dies without leaving descendants, then the whole of said share

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