Simon v. Safe Deposit & Trust Co. of Baltimore

• Decision Date: 19 May 1948
• Docket Number: 139.
• Citation: Simon v. Safe Deposit & Trust Co. of Baltimore, 59 A.2d 199, 190 Md. 468 (Md. 1948)
• Parties: SIMON v. SAFE DEPOSIT & TRUST CO. OF BALTIMORE.
• Court: Maryland Court of Appeals

59 A.2d 199

190 Md. 468

SIMON v. SAFE DEPOSIT & TRUST CO. OF BALTIMORE.

No. 139.

Court of Appeals of Maryland

May 19, 1948

Appeal from Circuit Court of Baltimore City; Herman M. Moser, Judge.

Suit by the Safe Deposit & Trust Company of Baltimore, trustee, under the will of Jane Marshall Wilson, deceased, against Francois Simon, residuary legatee under the last will and testament of Marie Eugenie Pichon, etc., and others for construction of a trust deed and proper distribution of corpus and income thereunder. From the decree, the named defendant appeals.

Decree affirmed in part and reversed in part, and case remanded for passage of decree in conformity with opinion.

Richard W. Kiefer and Edgar Allan Poe, both of Baltimore (J. Kemp Bartlett, Jr., of Baltimore, on the brief), for appellant.

George M. White, of Baltimore (White & Page, of Baltimore, on the brief), for Melville Wilson et al. and Safe Dep. & Trust Co. appellees.

Cross & Shriver, of Baltimore, on the brief for Safe Deposit & Trust Co., appellee.

Before MARBURY, Chief Judge, and DELAPLAINE, COLLINS, GRASON and HENDERSON, JJ.

COLLINS Judge.

On May 24, 1902, one Marshall Gulian Wilson, a citizen of Baltimore County, Maryland, at that time sojourning in France, executed a deed of trust to the Safe Deposit & Trust Company of Baltimore. This trust consisted of bonds, securities, and choses in action of the value of approximately $25,000 at that time. The present value of the principal of the trust is now approximately $20,000. The trust provision, carrying the principal of this trust, for interpretation, follows:

'In trust to collect the interest, dividends and income thereof and, after paying taxes, expenses and the charges of administering said trust, to pay the net income remaining in quarterly installments to the said Marshall Gulian Wilson during his life and from and after his death to pay the same as aforesaid to Marie Eugenie Wilson (nee Tanguy) his wife, and from and after the death of the said Marshall Gulian Wilson and his wife to pay the said net income as aforesaid to or for any child or children of said Marshall Gulian Wilson, in equal shares, if more than one, and as each such child shall attain his or her full age to pay over transfer and deliver to him or her his or her share of the corpus of the trust estate free and discharged from any trust as to the same. In case any such child shall die leaving issue surviving at the death of said grantor and his wife, then such issue shall take by representation the share which its parent would have taken had he or she been living and of full age at that time. In case of the death of any such child before attaining full age, his or her issue surviving, or, in default of such issue his surviving brothers and sisters shall take his or her share,. But in case there shall be no such child or descendant surviving the said Marshall Gulian Wilson, or in case all of his children shall die before attaining full age without issue, then the whole corpus of the trust estate shall, after the death of the wife of said Marshall Gulian Wilson, become the absolute property of the said James G. Wilson and Josephine C. Wilson his wife and the survivor of them and the executors, administrators and assigns of the survivor.'

Marshall Gulian Wilson died on June 4, 1905, without issue or descendants surviving him. He was, however, survived by his wife, who was named as sole legatee in his will, executed on April 30, 1901. After his death his widow, Marie Eugenie Wilson, intermarried with Henri Paul Marie Pichon, a citizen of France. This husband, Pichon, is described in the will of Marie Eugenie Pichon, (formerly Wilson), as her 'common law second husband.' Marie Eugenie Pichon died in France on March 23, 1944, having survived her first husband for thirty-nine years. Francois Simon, the appellant in this case, is the residuary legatee named in the French will of Marie Eugenie Pichon.

James G. Wilson, the father of the grantor, predeceased him, having died on June 1, 1904. He left a will in which he devised and bequeathed his entire estate to his surviving wife, Josephine C. Wilson, the mother of the grantor.

Josephine C. Wilson, also predeceased the grantor, but survived her husband, having died on March 12, 1905. By her will she left her entire estate to her husband, James G. Wilson, who had predeceased her.

James G. Wilson was survived by his widow and his said son, Marshall Gulian Wilson, the grantor, and by a sister and brother, Mary Bowly Wilson and William Bowly Wilson.

After Marshall Gulian Wilson's death the net income from the trust estate was paid to his widow, Marie Eugenie Pichon (formerly Wilson), until her death on March 23, 1944. Because of the war the trustee was unable to send the income to her during the latter years of her life. Upon her death, therefore, the trustee had on hand the sum of $2,307.88, which was due to her as income collected or accrued at the date of her death.

Whatever interest in the property, constituting the corpus of the trust estate, passed to Mary Bowly Wilson and William Bowly Wilson, the sister and brother of James G. Wilson, the father of the grantor, passed by mesne conveyance and inheritance to and now is the property of Melville Wilson as to a three-eighths interest; Virginia Marshall Wilson Randall as to a three-eighths interest; and Safe Deposit & Trust Company of Baltimore, Trustee Under the Will of Jane Marshall Wilson, Deceased, as to a two-eighths interest. J. Kemp Bartlett, Jr., Esquire, is Administrator C.T.A. of the Estate of Marie Eugenie Pichon, (formerly Marie Eugenie Wilson).

A bill of complaint was filed in the Circuit Court for Baltimore City, asking for a construction of the deed of trust and the proper distribution of the corpus and income. After hearing, the chancellor decreed that the unpaid income from the trust estate be distributed to J. Kemp Bartlett, Jr., Esquire, Administrator C.T.A. of the Estate of Marie Eugenie Pichon. This part of the decree of the chancellor is not contested by any of the parties to this case. He further decreed that the corpus of the trust, subject to the Maryland Collateral Inheritance Tax, be paid three-eighths to Melville Wilson, three-eighths to Virginia Marshall Wilson Randall, and two-eighths to the Safe Deposit & Trust Company of Baltimore, Trustee Under the Will of Jane Marshall Wilson, deceased.

From that decree, Francois Simon, residuary legatee under the will of Marie Eugenie Pichon (formerly Marie Eugenie Wilson), appeals to this Court.

The deed of trust in this case granted life estate containing two alternate provisions: First: If there were children of the grantor surviving him who had attained full age, the remainder would go to them absolutely. Second: If there were no such children of the grantor, the remainder would go to the grantor's father and mother or the survivor of them. The grantor of the trust having died without children and the father and mother of the grantor having predeceased him, the mother surviving the father, the chancellor found that the alternate contingent remainder to the survivor of the parents of Marshall Gulian Wilson, though still contingent at the time of the death of the survivor, Josephine C. Wilson, was devisable by her and passed under her will. The Maryland decisions have held that where the person to take a contingent remainder is specifically designated, such a remainder is devisable by the designated remainderman. Here the parents were designated by name. That finding of the chancellor is not disputed by any of the parties in this case and, in the opinion of this Court, was correct. Hambleton v. Darrington, 36 Md. 434, 444; Fisher v. Wagner, 109 Md. 243, 71 A. 999, 21 L.R.A.,N.S., 121; McClurg v. Myers, 129 Md. 112, 98 A. 491; Hammond v. Piper, 185 Md. 314, 44 A.2d 756; Miller on Construction of Wills, Section 234.

The lapsed legacy statute, Acts of 1810, Chapter 34 as amended, Code 1904, Article 93, Section 320, Code 1939, Article 93, Section 340, provides:

'No devise, legacy or bequest shall lapse or fail of taking effect by reason of the death of any devisee or legatee (actually and specially named as devisee or legatee, or who is or shall be mentioned, described, or in any manner referred to, or designated or identified ad devisee or legatee in any will, testament or codicil) in the lifetime of the testator, but every such devise, legacy or bequest shall have the same effect and operation in law to transfer the right, estate and interest in the property mentioned in such devise or bequest as if such devisee or legatee had survived the testator.'

This statute has been construed to transfer the property directly to those who would be the representatives of the legatee had he died intestate. Glenn v. Belt, 7 Gill & J. 362; Wallace v. Du Bois, 65 Md. 153, 161, 4 A. 402; Vogel v. Turnt, 110 Md. 192, 72 A. 661.

The chancellor further found that the contingent remainder passed under the will of Josephine C. Wilson, the mother of the grantor, to the remaining next of kin of her husband, James G. Wilson: namely, Mary Bowly Wilson and William Bowly Wilson, the sister and brother of James G. Wilson. They were the remaining heirs at law and next of kin of James G Wilson, upon the death of Marshall Gulian Wilson, the grantor, though not the heirs at law and next of kin of James G. Wilson as of the death of the testatrix, Josephine C. Wilson. The appellant contends that the heirs at law and next of kin of James G. Wilson are to be determined as of the date of the death of Josephine C. Wilson and that as the grantor, Marshall Gulian Wilson, was in being at that time, the contingent remainder passed under her will to her son, Marshall Gulian Wilson, as...