Walker v. Safe Deposit & Trust Co. of Baltimore

• Decision Date: 01 April 1949
• Docket Number: 129.
• Citation: Walker v. Safe Deposit & Trust Co. of Baltimore, 192 Md. 695, 65 A.2d 311 (Md. 1949)
• Parties: WALKER v. SAFE DEPOSIT & TRUST CO. OF BALTIMORE et al.
• Court: Maryland Court of Appeals

65 A.2d 311

192 Md. 695

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

No. 129.

Court of Appeals of Maryland

April 1, 1949

Appeal from Circuit Court No. 2 of Baltimore City; E. Paul Mason Judge.

Suit by the Safe Deposit & Trust Company of Baltimore, trustee under deed from Noah Walker, against J. Ronald Walker administrator with will annexed of Chauncey W. Shelton deceased, 410 Southway, Baltimore, Md., Henry M. Walker, and others, for construction of the trust deed for purpose of determining to whom should be paid the share of the income previously paid to Chauncey W. Shelton, deceased. From an adverse decree, Henry M. Walker appeals.

Case remanded without affirmance or reversal.

Joseph L. Carter, of Baltimore, for appellant.

George M. White, of Baltimore (White & Page, of Baltimore, on the brief), for appellee Safe Deposit & Trust Co.

Ward B. Coe, Jr., of Baltimore (Carman, Anderson & Barnes, of Baltimore, on the brief), for appellees executor et al.

Before DELAPLAINE, COLLINS, GRASON and HENDERSON, JJ.

HENDERSON Judge.

This case arises upon a bill of complaint of the Safe Deposit and Trust Company, trustee under a deed of trust from Noah Walker, to have the instrument construed for the purpose of determining to whom should be paid the share of the income heretofore paid to Chauncey W. Shelton, deceased.

The deed of trust, executed on January 4, 1893, conveyed to the trustee the settlor's interest in his grandfather's estate. It provided (in paragraph 3), subject to certain discretionary powers in the trustee as to payments to or for the benefit of the settlor, that the income should be paid 'to my brothers and sister, equally, during my life, and while I remain unmarried, and to the survivors or survivor of them, if any of them die during my life and while I remain unmarried, not leaving issue him or her surviving, but in case any of them, my said brothers and sister, die during my life, and while I remain unmarried, leaving issue, him or her surviving, such issue shall stand in the place of the parent of such issue in the distribution of said income, and receive the share of such parent.'

In the event that the settlor should marry, there were elaborate provisions as to the disposition of the income in favor of his wife and children. However, the settlor's wife predeceased him, and he left no issue. In this contingency it was provided (in paragraph 6) that the estate should be held 'in trust for my brothers and sister, and the then surviving issue of a deceased brother or sister, on the same trusts, and for the same estate, and upon the same terms and conditions as to the distribution and conveyance thereof to the persons entitled, as are declared and provided with reference to the estate hereinbefore provided to be held for my brothers and sister in the event of my death without having married.'

In the event of his death without having married, it was provided (in paragraph 3) that the trustee should 'continue to pay the income of said estate to my brothers and sister, equally, and to the survivors or survivor of them, if any of them die without issue, but if any of them die leaving issue him or her surviving, then in the distribution and payment of said income, such issue shall stand in the place of the parent, and receive the share of said income which the parent of such issue would have taken hereunder if living, and in trust to continue to so distribute and pay said income after my death, not having married, until the death of the longest liver of said persons, my said brothers and sister, and thereafter until the youngest child of my brothers and sister, who shall survive the longest liver of them, shall attain the age of twenty-one years, at which time said Trustee shall divide said estate equally among the children of my brothers and sister then living, per capita, the descendants then living of a deceased child to take the share to which the parent of such descendants would be entitled if then living, and shall convey, transfer and deliver to the children and descendants of children of each of my brothers and sister, in feesimple, absolutely and discharged of the trusts of this deed, the share of said estate to which each of said children and descendants of deceased children is entitled hereunder, * * *.' In paragraph 7, spendthrift trust provisions were made applicable to any and all beneficiaries under the instrument.

At the time of the execution of this deed, the settlor's parents were both dead. He had three brothers living, Dixon Walker, Hamilton C. Walker and Henry M. Walker, and one sister, Sadie C. Councilman, whose first husband was named Shelton. She died May 1, 1906, leaving as her only surviving descendant a son, Chauncey W. Shelton. Dixon Walker died May 17, 1920, without issue.

The settlor died August 7, 1920, and after his death the trustee paid the net income in equal shares to Hamilton C. Walker, Henry M. Walker and Chauncey W. Shelton. Hamilton C. Walker died December 26, 1928, without issue surviving. Thereafter, the trustee paid the net income equally to Henry M. Walker and Chauncey W. Shelton, until the death of the latter on January 14, 1946. Letters were granted to J. Ronald Walker (a son of Henry M. Walker), administrator c. t. a., by the Orphans' Court of Baltimore City. By his will dated December 30, 1910, Chauncey W. Shelton devised and bequeathed his entire estate ot his uncle, Hamilton C. Walker, if living at the time of his death, without any gift over in the event which happened. Chauncey W. Shelton was survived by his wife, Edythe, who died testate, on April 13, 1947, after the filing of this bill of complaint, a resident of the State of Washington. Her executor, George J. Hodge, was made a party to this proceeding. The nearest surviving relatives of Chauncey W. Shelton are his uncle, Henry M. Walker, and Mary S. Sweeney, a sister of his father, both of whom are parties.

Upon the death of Chauncey W. Shelton, Henry W. Walker claimed the income from the estate by survivorship. Upon the filing of the bill, S. Ronald Walker, administrator c. t. a., submitted his rights to the determination of the court.

The first question presented is whether, under a proper construction of the deed of trust, the right of Chauncey W. Shelton to share in the income of the trust was a life interest, terminating with his death, or an absolute interest passing to his personal representative until the termination of the trust an event which has not yet occurred, since one of the settlor's brothers is still alive. The chancellor filed no opinion, but in his decree, directed the trustee to pay the income, accounting from January 14, 1946, the date of Chauncey's death, until the termination of the trust, one-half to Henry M. Walker, and one-half to J. Ronald Walker, administrator c. t. a., with the provision that upon the stating of an administration account in the Orphans' Court, the distributees of the estate of Chauncey W. Shelton might apply for modification of the decree, to the end that income payments might be made directly to them. The decree did not undertake to determine who these distributees were.

The appellant contends that upon the death of Chauncey W. Shelton in 1946, his share of the income passed to Henry M. Walker by survivorship; and thereafter the entire net income became payable to Henry as the ultimate survivor of the brothers and sister of the settlor and the issue of the deceased brothers and sister. The appellees contend that Chauncey took a vested interest in his parents' share of the income, during the continuance of the trust, which was not divested by his death without issue.

The difficulty faced by the appellant, in urging this construction, is that the language of paragraph 3 only calls for survivorship as between 'my brothers and sister * * * if any of them die without issue.' In the event that 'any of them die leaving issue him or her surviving,' it is provided that 'in the distribution and payment of said income, such issue shall stand in the place of the parent, and receive the share of said income which the parent of such issue would have taken if living.' The instrument makes no provision for a gift over to the surviving brothers or sister, in the contingency that has occurred, the subsequent failure of substituted issue.

In the recent case of Ryan v. Herbert, 186 Md. 453, 47 A.2d 360, 361, a testator provided for the payment of income to his children, with survivorship between them in case of death without issue, 'and in the case of the death of any one of my said children during the continuance...