Selby v. Fidelity Trust Co.
| Decision Date | 20 March 1947 |
| Docket Number | 66. |
| Citation | 51 A.2d 822,188 Md. 192 |
| Parties | SELBY v. FIDELITY TRUST CO. et al. |
| Court | Maryland Court of Appeals |
Appeal from Circuit Court, Howard County; James E. Boylan, Jr. Chief Judge.
Bill in equity by Robert Leo Selby, in his own right and as executor of the last will of Harry V. Selby, late of Howard County deceased, against the Fidelity Trust Company, a body corporate, as trustee under the fifth item of the last will of Harry V. Selby, and as well trustee under a deed of trust dated the 24th day of November, 1936, from Harry V. Selby, to it, and others, to have declared an addition in money and securities, made by and in the lifetime of Harry V. Selby, to a deed of trust executed by him to the Fidelity Trust Company subsequent to the date of the will, to be adeemed by a bequest made in that instrument. From a decree dismissing the complaint, the complainant appeals.
Decree affirmed.
John L. Clark, of Ellicott City, and Francis Neal Parke, of Westminster, for appellant.
Samuel K. Dennis, of Baltimore, for appellees Fidelity Trust Co. and Edward I. Selby p>Page J. Cookman Boyd, of Baltimore, for appellees Guardian et al.
Before MARBURY, C.J., and DELAPLAINE, COLLINS, GRASON, HENDERSON and MARKELL, JJ.
GRASON Judge.
This case was instituted in the Circuit Court for Howard County in Equity, by the appellant, in his own right and as executor under the will of Harry V. Selby, deceased. His purpose was to have declared an addition in money and securities, made by and in the lifetime of Harry V. Selby, to a deed of trust executed by him to the Fidelity Trust Company, a body corporate, trustee, subsequent to the date of his will, to be adeemed by a bequest made in that instrument. The chancellor refused the relief prayed, and dismissed the bill of complaint, and the case comes here on appeal.
The testator and grantor in the deed of trust was survived by the following: Two sons, Robert Leo and Edward I. Selby, and four grandchildren, the children of his son Edward I. Selby, namely, Alice Marion, Helen Elizabeth, Genevieve E., and Lawrence Edward. These children ranged in age from ten years to about twenty months at the time of Mr. Selby's death. The deed of trust was executed on November 24, 1936. By the terms of the deed Mr. Selby was, from time to time, to set over and deliver such securities and sums of money as he desired. He reserved a life estate in the corpus to be created, and upon his death the net income was to be paid to his son, Edward I. Selby, for life, if he survived his father. Upon the death of the survivor, the corpus was to be divided into two equal parts, the net income from one of the one-half parts to be held for the use of Alice Marion Selby, if then living, and when she attains the age of twenty-five years one-half of the one-half part is to be delivered to her, free of the trust. The other one-half is to be held under a like trust as to the income until she reaches the age of thirty years, when it is to be delivered to her, free of said trust. If she dies before attaining the age of twenty-five or thirty years, her share in the trust is to go to her issue and descendants, per stirpes, free of the trust. If she shall die without issue, then to Helen Elizabeth Selby, her sister. The other one-half of the corpus is to be held for Helen Elizabeth Selby, upon the same trust, and if she dies before attaining the age of twenty-five or thirty years, without issue, her share is to go to Alice Marion Selby, to be held under said trust. Should both of these sisters die without descendants before final distribution, the whole of said trust property is to be delivered to Robert Leo Selby, or to his issue, if he is then dead. The said corpus, and the interest thereon, to be paid into the hands of the beneficiaries named, and not into the hands of anyone else, whether claiming by, from, or under them, or otherwise. This deed also provides:
'At the death of the Grantor's said son, surviving him, the Trustee may, in its sole discretion, use such portions of principal and/or income as may be necessary to defray the expenses of his last illness and burial, if these be not otherwise provided for.'
On November 25, 1942, Mr. Selby executed his will. He bequeathed to the Fidelity Trust Company his farm and personal property thereon, in trust, to pay the net income therefrom to his son, Edward I. Selby for his life, and from his death to pay said income, in equal shares, to Alice Marion Selby, Helen Elizabeth Selby, and Genevieve E. Selby, daughters of Edward I. Selby, until the youngest of them shall attain the age of twenty-five years, with cross limitations in the event of the death of any of them before the youngest shall attain said age without issue, and in the event of issue, the share of any or all so dying should go to their respective issue, per stirpes and not per capita. When the youngest attains twenty-five years, or upon the death of Edward I. Selby, whichever event shall last occur, then to divide said trust property among the sisters equally, and if any or all of them die before the happening of said event, leaving issue, their share to go to their respective issue per stirpes and not per capita. In the event all three should die, without issue, before the happening of said event, to pay over and transfer the whole of said trust estate to Robert Leo Selby. All payments under the trust to be paid to the party in interest and not into the hands of another. In the fifth item of the will the testator provided, if he should sell his farm before his death, then he bequeathed $20,000 to said Trust Company, to be held upon the same trust. The residue of his estate he left to his son Robert Leo Selby, whom he named executor.
Mr. Selby died on August 17, 1944. He sold his farm on April 15, 1943. In July, 1944, he transferred to the Trust Company securities valued at $15,482.88, and on August 9, 1944, he delivered to the Trust Company cash in the amount of $5000. These two items amount to $20,482.88 and the value of the trust estate at the time of his death was $41,467.18. His will was admitted to probate and letters testamentary granted to his son Robert Leo. Two administration accounts have been filed by the executor and there is left in his hands for distribution under the will the sum of $24,467.62. Under the will $20,000 of this amount is to be distributed to the Fidelity Trust Company, Trustee, and $4,467.62 to Robert Leo Selby, residuary legatee.
The contention of the appellant is that the transfers made in the months of July and August, 1944, to the Fidelity Trust Company, trustee under the deed of trust, adeemed the provision in the will of $20,000 to the Fidelity Trust Company, trustee. Appellees deny this contention.
An ademption by advancement results when a parent, subsequent to the date of the will, makes a gift to a child, in substantial amount, of similar property as that contained in the will. This rule was adopted by courts of equity to prevent a child from getting a double portion, it being supposed that a parent would treat each child equally, as each child is entitled to the same claim upon his bounty. This presumption can be rebutted by evidence that the parent did not intend a gift made subsequent to his will to be an advancement, but to have been made independent of the provision for the child in his will. Miller on Construction of Wills, Sec. 144; Parks v. Parks, 19 Md. 323; Smith v. Darby, 39 Md. 268; Wallace v. DuBois, 65 Md. 153, 4 A. 402; Harley v. Harley, 57 Md. 340; Dilley v. Love, 61 Md. 603.
In Harley v. Harley, supra, the court said:
(Italics supplied)
In Dilley v. Love, supra, it is stated:
'* * * it is settled that in this State, as in England, a gift of money or property by a parent to a child is presumptively an advancement, but that this presumption may be repelled by evidence proper for the purpose; in other words whether such gift takes the character and legal properties of an advancement, or those of a full and absolute gift without a view to a portion or settlement, depends on the intention of the donor, and that intention may be ascertained by parol evidence of the donor's declarations at the time of executing the conveyance or making the gift, or of the donee's admissions afterwards, or by proof of facts and circumstances from which the intention may be inferred.'
In Wallace v. DuBois, supra [65 Md. 153, 4 A. 403], it is said:
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