Ziehl v. Maine Nat. Bank

• Decision Date: 30 March 1978
• Citation: 383 A.2d 1364
• Parties: Jennifer Sherwood ZIEHL, a minor, suing by and through Sylvia Rhodes Ziehl, her mother and next friend v. MAINE NATIONAL BANK et al.
• Court: Maine Supreme Court

Page 1364

383 A.2d 1364

Jennifer Sherwood ZIEHL, a minor, suing by and through Sylvia Rhodes Ziehl, her mother and next friend v. MAINE NATIONAL BANK et al.

Supreme Judicial Court of Maine.

March 30, 1978.

Pierce, Atwood, Scribner, Allen, Smith & Lancaster by William C. Smith (orally), Everett P. Ingalls, III, Ralph I. Lancaster, Jr., Portland, for plaintiff.

Verrill & Dana by John A. Mitchell (orally), P. Benjamin Zuckerman, Portland, for Mary Rhodes Jackson.

Wilson, Steinfeld, Murrell, Barton & Lane by Thomas P. Wilson, Portland, guardian ad litem.

Perkins, Thompson, Hinckley & Keddy by Thomas Schulten, Portland, for Maine Nat. Bank and Woodfords Congregational Church.

Before DUFRESNE, C. J. and WERNICK, ARCHIBALD, GODFREY and DELAHANTY, JJ.

WERNICK, Justice.

On November 19, 1973 plaintiff Jennifer Sherwood Ziehl, a minor and lawfully adopted child of Sylvia Rhodes Ziehl, by her mother as her next friend, instituted a civil action in the Superior Court (Cumberland County) seeking a declaratory judgment interpreting the wills of Carrie S. Rhodes and Richard A. Rhodes. ¹

Carrie S. Rhodes died on May 9, 1968. Her husband Richard A. Rhodes died on March 2, 1970. Their wills were subsequently proved and allowed in the Probate Court of Cumberland County.

Carrie's will, executed under date of December 13, 1962, established a residuary testamentary trust involving both real and personal property. Her husband Richard was to have the benefit of the annual income of the trust during his lifetime, and at his death the trust corpus was to be divided in two equal parts, the income from each part to be used, respectively, for the benefit of Carrie's daughter Sylvia Rhodes Ziehl and Carrie's stepdaughter Mary R. Jackson. At Sylvia's death, Sylvia's share of the trust was to be distributed free of trust

"to the then living children of my daughter Sylvia in equal shares", (emphasis supplied)

and to other named beneficiaries should no "children" of Sylvia be "then living."

The will of Richard A. Rhodes, executed under date of February 13, 1961, established a residuary testamentary trust similar to the one created by Carrie's will. Because Carrie predeceased Richard, the corpus of Richard's trust became divided in two equal parts, the annual income of each part to be used, respectively, for the benefit of Richard's daughters Mary Rhodes Jackson and Sylvia Rhodes Ziehl. At Sylvia's death, her share of the trust was to be distributed free of trust in equal shares to Sylvia's "then living children " (emphasis supplied) and to other designated beneficiaries should there be no "children" of Sylvia "then living."

Plaintiff sought answer to the question whether the provision in each will for the "children" of Sylvia Rhodes Ziehl included the plaintiff, Sylvia's "child" by lawful adoption, among the beneficiaries. The Justice presiding in the Superior Court ruled that it was the intendment of each will by the designation "children" of Sylvia Rhodes Ziehl to include plaintiff as a beneficiary. Defendants ² have appealed from the judgment so declaring.

1.

The presiding Justice recognized that there was a threshold question whether the present action should be permitted to lie. A decision now while plaintiff's mother is still living would establish, if favorable to plaintiff, only that plaintiff has an estate contingent upon her surviving her mother, and this might not happen. Acknowledging that this feature of the case, which we call the "future contingency factor", has resulted "on occasion" in decisions deferring the adjudication of issues of will construction "until the anticipated contingency occurs or is imminent", the presiding Justice also observed that the "case law in Maine on the question is inconsistent and conflicting." The Justice decided to give the adjudication here sought because he believed, as did this Court in Gannett v. Old Colony Trust Co., Trustees, 155 Me. 248, 153 A.2d 122 (1959), that to defer adjudication might cause the loss of highly material evidence.

We agree with the presiding Justice. Since we believe, too, that language and results of prior cases dealing with the presence of the future contingency factor seem to justify the Justice's observation that the case law appears inconsistent, we think that we may minimize further misunderstanding by indicating a clarification of the Maine law.

Evaluating the prior cases in which the future contingency factor has been addressed, we conclude that apparent inconsistencies in the decisions tend to disappear if, penetrating below the surface, we recognize the future contingency factor as the common hinge by which other independent principles were swung into operation as the real determinants of decision.

Among these principles we mention, first, one most frequently articulated in express terms by the cases. This principle, essentially negative in import, states that the presence of a future contingency factor relative to an issue of will construction does not affect the court's subject-matter jurisdiction. At minimum, this is plain from the specific provisions of 14 M.R.S.A. § 6051(10), and the cases have unequivocally so decided. Baldwin v. Bean, 59 Me. 481 (1871); Richardson v. Richardson, 80 Me. 585, 16 A. 250 (1888); Haseltine v. Shepherd, 99 Me. 495, 59 A. 1025 (1905); Huston v. Dodge, 111 Me. 246, 88 A. 888 (1913); Gannett v. Old Colony Trust Co., Trustees, supra; First Portland National Bank v. Rodrique, 157 Me. 277, 172 A.2d 107 (1961).

Although the presence of a future contingency factor does not per se impair subject-matter jurisdiction, it may nevertheless bring into play limitations deriving both from the constitutional conception of the nature of judicial power and policy considerations underlying judicial formulations as to "standing." These limitations are reflected in a second principle which warns the Court confronting a future contingency factor in relation to a will construction issue to refrain from giving the adjudication sought if the presence of the future contingency factor will make the Court's determination an advisory opinion rather than the decision of an actual case or controversy.

This is the principle which really underlay, and governed, the decision in most of the prior cases involving a future contingency factor. Baldwin v. Bean, supra; Burgess v. Shepherd, 97 Me. 522, 55 A. 415 (1903), and Haseltine v. Shepherd, supra, are leading cases in this regard. Baldwin expressly made the point that the Court's avowedly existing jurisdiction of the general subject-matter of the construction of wills must be invoked by "parties in interest." (emphasis supplied) (59 Me. at 482). Burgess squarely decided that the complainant must be a person having such an "interest" in relation to the particular subject-matter at issue that the Court, in the words of Burgess, would not be answering questions which are "moot" because raised by a person having an "interest" of only "speculative curiosity." (97 Me. at 525, 55 A. 415) In Haseltine the Court incisively discerned the thrust of the principle now under discussion. Reviewing the prior cases "which throw any light upon" the impact of the future contingency factor, the Court said:

". . . barren of any statement of facts tending to show that any exigency existed which made the interpretation by the court to be immediately useful to the parties, they . . . show the character of the interest in the construction of a will which a party must have in order to invoke the jurisdiction of the court." (emphasis supplied) (99 Me. at 503, 59 A. at 1028)

In Burgess v. Shepherd, supra, Huston v. Dodge, supra, and Fiduciary Trust Co. v. Brown, 152 Me. 360, 131 A.2d 191 (1957) the decision of the case rested squarely on this principle that the plaintiff must have such "interest" in the subject-matter as to which the construction of a will is sought as would make an adjudication by the Court the decision of an actual case rather than an advisory opinion. In each of these three cases the decision was that an executor or a trustee lacks the requisite "interest" to invoke the Court's subject-matter jurisdiction to construe a will or trust (or to give directions to executors or trustees as to their duties) where the questions submitted affect neither the rights of the executor or trustee in person or property nor powers or duties of the executor or trustee which are in reasonably imminent need of being exercised or discharged. See Webb v. Dow, 120 Me. 519, 115 A. 279 (1921).

A third principle, reflecting judicial recognition that the future contingency factor may appear in innumerably varying concrete forms, dictates that even though the parties complaining may have a sufficient interest in the subject-matter to avoid the advisory opinion difficulty, the question raised may involve so heavy an overlay of contingency, circumstantial uncertainty and remoteness that it is not presently amenable to judicial processes and techniques. The issue is thus not "justiciably ripe", and it is a wise exercise of judicial discretion to defer deciding it. We look upon McCarthy v. McCarthy, 121 Me. 398, 117 A. 313 (1922) as a case illustrative of the operation of this "ripeness" principle (even though that term was not expressly used by the Court).

Applying these discrete principles as the real determinants of decision in will construction cases involving a future contingency factor, we sustain the Justice's decision, here, to give the adjudication sought by plaintiff.

The Court's subject-matter jurisdiction is beyond question.

The plaintiff's interest in the issue submitted for adjudication is significantly more than "speculative curiosity." Plaintiff's "interest" is such as to make a decision presently rendered the decision of an actual case. Whether or not under the wills of Carrie and Richard Rhodes plaintiff is a designated beneficiary of the corpus of the residuary trust established by each will bears upon...