Safe Deposit & Trust Co. of Baltimore v. Gunther

• Decision Date: 02 February 1923
• Docket Number: 119.
• Parties: SAFE DEPOSIT & TRUST CO. OF BALTIMORE ET AL. v. GUNTHER ET AL.
• Court: Maryland Court of Appeals

121 A. 479

142 Md. 644

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

No. 119.

Court of Appeals of Maryland

February 2, 1923

Appeal from Circuit Court No. 2 of Baltimore City; Charles F. Stein Judge.

"To be officially reported."

Suit in equity by George Gunther, Jr., and others against the Safe Deposit & Trust Company of Baltimore and others, for the construction of a will. From a decree construing the will favorably to plaintiffs, certain of the defendants appeal. Affirmed.

Argued before BOYD, C.J., and BRISCOE, THOMAS, PATTISON, URNER ADKINS, and OFFUTT, JJ.

Morris A. Soper, of Baltimore (Roszel C. Thomsen and Soper, Bowie & Clark, all of Baltimore, on the brief), for appellants.

John A Farley and W. Calvin Chestnut, both of Baltimore (Roland R. Marchant, Herbert Levy, and Coady & Farley, all of Baltimore, on the briefs), for appellees.

BRISCOE J.

The questions for our consideration in this case are presented by a bill in equity, for a proper construction of the last will and testament of George Gunther, late of Baltimore city, deceased.

Mr. Gunther died on the 5th of September, 1912, leaving a last will and testament dated the 23d day of May, 1911, and which will was admitted to probate by the orphans' court of Baltimore city, on the 11th day of September, 1912. Letters testamentary upon his estate were granted to Catherine Gunther, his widow, and to George Gunther, Jr., and Henry Frank Gunther, two of his sons, and the persons named as executrix and executors, in the will.

The testator left a large estate, approximating in value, about three millions of dollars.

He left, surviving him, his wife, Catherine Gunther, one of the defendants, in the case; two daughters, Mary Magdalena Cooney and Catherine Stringer, also defendants in the case; and two sons, George Gunther, Jr., and Frank H. Gunther, the plaintiffs, who filed the bill in the court below.

The material provisions of the will and those that are necessary to be considered by us for the purposes of this case, are as follows:

First, the testator gave and devised to his wife, Catherine Gunther, absolutely, the house and premises in which he resided at the time of his death, together with all the contents thereof; also his automobiles, horses, and carriages, and also the sum of $25,000 in cash.

Second, by the sixth item of the will, he ratified and confirmed a gift of 75 shares of the capital stock of the George Gunther, Jr., Brewing Company of Baltimore county, previously made by him to his son George, and also a gift of 10 shares of the same stock previously made by him to his son Henry Frank.

Third, by the seventh item, he gave and bequeathed, unto each of his daughters Mary Magdalena and Catherine the sum of $15,000.

Fourth, by the eighth item of the will, in addition to the gifts of stock made by the testator, to his sons, George and Henry, and mentioned in item No. 6 of his will, he gave and bequeathed unto his son George 69 shares of the capital stock of the George Gunther, Jr., Brewing Company, and unto his son Henry Frank, 135 shares of said stock.

The ninth and tenth items of the will disposes of the rest and residue of his estate, and, as the questions involved on this appeal are presented on these two clauses of the will, they will be here transcribed:

Item No. 9. All the rest, residue and remainder of my estate real and personal, whatsoever, and wheresoever situate, I give, devise and bequeath unto the Safe Deposit and Trust Company of Baltimore, a body corporate of the state of Maryland, its successors and assigns, in trust as trustees, in trust and confidence to hold the same, and to collect and receive the rents, dividends, income and interest issuing thereout, and, after paying taxes and other necessary and proper charges and expenses incident thereto, to pay from said net rents, dividends, income and interests, unto my wife, Catherine Gunther, the sum of twelve thousand dollars per annum, in equal monthly installments, in advance, for and during the term of her natural life, and to pay unto my daughter, Mary Magdalena, the sum of two thousand six hundred dollars, per annum, in equal monthly installments, in advance (into her hands, and not into the hands of another, whether claimed by her authority or otherwise) until the death of my said wife, or until the death of my said daughter, Mary Magdalena, whichever event may first occur; and to pay unto my daughter, Catherine, the sum of two thousand six hundred dollars per annum, in equal monthly installments, in advance (into her hands, and not into the hands of another, whether claimed by her authority or otherwise) until the death of my said wife or until the death of my said daughter, Catherine, whichever event may first occur.

As to the remaining part or portion of the said rents, dividends, income and interest, I direct my said trustee to collect, accumulate and invest the same, to be held by the said trustee as a part of the rest, residue and remainder of my estate.

And from and immediately after the death of my said wife, Catherine Gunther, I direct my said trustee, its successors and assigns, to apportion and divide said rest, residue and remainder of my estate (including all accumulations) into four equal parts, and to convey, assign, transfer and deliver absolutely, unto my son, George, one full equal fourth part thereof, free, clear and discharged of the trust herein imposed; and to convey, assign, transfer and deliver, absolutely, unto my son, Henry Frank, one full equal fourth part thereof, free, clear and discharged of the trust herein imposed. One full equal fourth part thereof, I give, devise and bequeath unto the Safe Deposit and Trust Company of Baltimore, a body corporate of the state of Maryland, its successors and assigns, in further trust to hold the same and to collect and receive the rents, dividends, income and interest issuing thereout; and, after paying taxes and other necessary and proper charges and expenses incident thereto, to pay the net rents, dividends, income and interest, monthly, unto my daughter, Mary Magdalena (into her hands, and not into the hands of another, whether claimed by her authority or otherwise), for and during the term of her natural life, and from and immediately after the death of said Mary Magdalena, said trust shall cease, and said trustee, its successors and assigns shall convey, assign, transfer and deliver, absolutely, said equal fourth part, so held in trust, unto the child, children and descendants of my said daughter, Mary Magdalena, then living, per stirpes and not per capita, free, clear and discharged of the trust herein imposed.

Should my said daughter, Mary Magdalena, depart this life without leaving any child, children or descendants surviving her, then said equal one-fourth part, shall go to and become, absolutely, the property of the rightful heirs of my body, free, clear and discharged of said trust.

Similar provisions, in trust, are made by the testator, in the ninth clause of his will, as to the remaining one-fourth part of the estate for the benefit of the testator's daughter Catherine, during her lifetime and after her death, to her descendants and, in lieu of descendants, then to the rightful heirs of the testator's body.

Item 10, of the will, simply directs the method of the division of the estate, with regard to the valuation of the shares of the capital stock of the brewery company.

The remaining clauses, of the will, items 11 to 16, inclusive, relate to the trust created for the rest and residue of the estate, and it will be seen they do not seriously reflect upon the questions at issue, and are not relevant to the controversy.

Mrs. Gunther, the widow, on or about the 16th day of December, 1912, renounced all claim to the bequests and devises, made to her, by the last will and testament of her husband, and elected to take in lieu thereof her dower or legal share of the estate of her husband.

On June 28, 1913, the executors filed their first administration account, showing a distribution of one-third of the residue of the estate to the widow and the balance to the Safe Deposit & Trust Company of Baltimore, as trustee, as will appear by reference to a copy of the account filed among the proceedings in the case.

Thereupon these proceedings were instituted by the two sons, the plaintiffs in the case, against the two sisters, the Safe Deposit & Trust Company of Baltimore, and the other defendants, to compel the trustee under the will, by reason and in consequence of the renunciation of the widow, Catherine Gunther, of the provisions of the will made in her favor, their vested remainders of the residue of the estate having been accelerated, to divide the rest, residue, and remainder of the estate, as provided for in clauses 9 and 10 of the will into four equal parts and to transfer and deliver to each one of the plaintiffs absolutely one of these parts.

There is no dispute, as to the facts, and they are set out and contained in the bill of complaint, the answers of the defendants, the exhibits, and the testimony, duly taken, at the hearing.

The case was submitted for decree to the circuit court No. 2, of Baltimore city, and, after hearing upon bill, answers, and testimony, the court held, in part:

(1) That by the true construction of the will of George Gunther, late of Baltimore city, deceased, and the effect of a renunciation of the provisions of said will by Catherine Gunther, his widow, under date of December 16, 1912, there legally resulted an acceleration of the remainders provided for in the will of the said George Gunther in favor of the four children of said George Gunther, to wit, George Gunther Jr., Frank H. Gunther, Mary Magdalena Cooney and Catherine

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