72 Md. 67 | Md. | 1890
delivered the opinion of the Court.
The bill in this case was filed for the purpose of obtaining a judicial construction of the will of Lambert Grittings, deceased, who died in July, 188*7. The will bears date the 30th of June, 18*70.
At the date of the will, as also at the time of the death of the testator, the heirs-at-law and next of kin of the testator consisted of two surviving married daughters, Mrs. Middleton and Mrs. Buchanan, and three granddaughters, the children of Mrs. Simons, deceased, the eldest daughter of the testator. Both the married daugh
The testator was possessed of a large estate, consisting of both real and personal property; and this estate he devised and bequeathed to three named persons, his sons-in-law, and the survivors or survivor of them, their heirs and assigns forever, (giving special directions for supplying the place of either of the trustees named in case of his declining to accept the trust,) to hold the property to the uses and upon the trusts expressed in the will. The same three persons are named as executors as well as trustees. They are directed to pay debts, and funeral and cemetery expenses, etc.; and also to pay certain legacies. They are then directed to divide into three equal parts, the wines, furniture and pictures, and allot the parts to the daughters and granddaughters respectively, the one part being given to the three granddaughters collectively. They are also directed to pay over to his daughters, Mrs. Middleton and Mrs. Buchanan, and his eldest granddaughter, Eleanor A. Simons, the sum of $5,000, “to be applied by them in their best judgment, as my bequest for charitable and religious purposes, say for the promotion of the Christian religion, without prejudice or regard to sect, and for or towards the relief of the poor and destitute.” They are next directed to set apart and safely invest, in their names as trustees, or retain invested from present investments, the sum of $10,000, or so much thereof as may be necessary, &c., and from the interest or dividends thereof, to pay to his,
These limitations of the interests of the cestuis que trust are followed by restrictions upon the power of alienation, lien or incumbrance of the property, with a qualified right to authorize the transfer and reinvestment of the property by the trustees, with a view to a more safe and beneficial investment thereof, during the continuance of the trusts.
Then follows the last clause of the will, the terms of which seem to have given rise to what is regarded as a serious difficulty in its construction, and as to the effect of that clause upon the devises and limitations contained in other clauses of the instrument. The last clause is as follows:
“And it is further my will and desire, that the trusts raised and expressed in this my last will and testament shall cease and determine after the death of my two daughters, Harriet S. Gr. Middleton and Henrietta Gr. Buchanan, during whose lives I wish them to continue: upon the event of my grandchildren respectively arriving at the age of thirty .(30), so far as regards such grandchildren', and their respective shares, — that is to say, they shall cease and determine in the case of each grandchild upon and as she or he reaches the age of thirty (30), so far as regards her or his share coming either directly from me or from her or his mother’s proportion of my estate, and that such grandchildren or grandchild from that period and age (thirty) shall hold their respective shares, or her or his share, free and discharged of the said trust to themselves for the term of their natural lives respectively, and after their deaths to the lawful issue of tlieir todies, their heirs and assigns forever, and that the said trustees shall convey the shares of such
1. Upon the whole will there are several questions raised, and-the first is, what is the effect of the bequest of $5,000, to be applied to charitable purposes, in the discretion of the two daug'hters and granddaughter of the testator ? This bequest, according to the well settled law in this State, is entirely too vague and indefinite to be executed, and it is therefore simply void. Indeed, there is no contention to the contrary; and 'the fund falls into and constitutes a part of the general residue of the estate. Dashiell vs. Attorney-General, 5 H. & J., 392; 6 H. & J., 1.
2. The second question is, in what manner is the fund of $10,000, which was directed to be set apart and invested by the trustees, to raise the three annuities, to be treated, inasmuch as the annuitants all died in the life time of the testator? This question would seem to be entirely settled by the terms of the will itself. It is expressly declared, that, subject to the payment of certain legacies, the fund should be held in trust, and upon the death of the annuitants, it should, together with the whole residue of the estate, be divided into three equal parts, &c. It would seem to be too clear for question, that the fund designed to raise the annuities, fell into the general residue, to be divided in the manner prescribed for the division of the general residue of the estate.
3. The next question is, what interests do the daughters and granddaughters, and their children, take in the parts of the general residue allotted to them respectively, under the will? The terms of the will upon this subject appear to be plain enough. The part that each of the daughters, and granddaughters, (the children of Mrs. Simons,) takes is to be held in trust to her separate use, and for the term of her natural life; and after her
4. The next question is the one about which there is the greatest difficulty, and that arises under the last clause of the will. That question is, whether the limitations contained in this clause, in respect to the duration of the trust, and the vesting of the legal estate dependent upon the termination of the trust estates, so far as the grandchildren of the testator are concerned, offend against the rule in restraint of perpetuities ? and the further question, whether, by proper construction, the terms employed Avere intended to apply to and embrace the children of Mrs. Middleton and Mrs. Buchanan, as well as the three daughters of Mrs. Simons, deceased? [t is conceded that if the terms employed in the limitation of the trust to and for grandchildren in this clause apply to all grandchildren — the children of the two living daughters as well as the children of the deceased daughter, Mrs. Simons — the rule against perpetuities would be violated. - Eor as the limitations to the children of the two living daughters include all after born children, as well as children in esse at the death of the testator, and the trust not terminating, and the legal estate not alloAved to vest, until they, the grandchildren, respectively attain the age of thirty years, the consequence would be, that such vesting might not take place till more than twenty-one years, and a fraction of a year, after a life or lives in being at the death of the testator. And assuming that the terms employed do embrace all grandchildren, as well the children of the two living daughters as the three daughters of the deceased daughter, of the testator, it is contended, that
It would seem to he clear, under the provisions of the will, that the children of the three daughters of the testator, are not all of one class. They constitute three, or rather five distinct classes, with respect to the several gifts and devises to them. It is said hy Mr. Jarman, in his work on Wills, vol. 1, page 534: “A number of persons are popularly said to form a class when they can he designated hy some general name, as ‘children,’ ‘grandchildren,’ ‘nephews;’ but in legal language the question whether a gift is one to a class depends not upon these, considerations, hut upon the mode of gift itself, namely, that it is a gift of an aggregate sum to a body of persons uncertain in number at the time of the gift, to be ascertained at a future time, and who are all to take in equal or in some other definite proportions, the share of each being dependent for its amount upon the ultimate number of persons.” This statement of the principle he illustrates by reference to several decided cases. Here the whole residue of the estate is directed to he divided into three equal and distinct parcels, and one part to he suh-divided, and each part is separately given, on distinct limitations, and the part of each daughter, and that of the three granddaughters, became separate, and are independent gifts. And that being the case, it is very clear that the rule against perpetuities could only affect the two classes of grandchildren, the children of the two living daughters ;-^-the
But the question remains, do the terms employed in this last clause of the will, according to what appears to he the intention of the testator, apply to'and embrace all his grandchildren ? Upon careful consideration of the whole will, and all its separate provisions and limitations, we are clearly of opinion that they do not. If the clause he construed to apply to all grandchildren, as contended it does, such construction would produce a clear repugnancy to former limitations in the will. In the preceding limitation clause, the shares given to the two living daughters are for life, and after their death to the children of such daughters, their heirs, &c. But in this last clause the limitation to the grandchildren is for life, “and after their deaths to the laioful issue of their bodies, their heirs and assigns forever;” by which, if the words “issue of their bodies” he construed to mean children, even as applied to personal estate, this limitation would be- in conflict with the preceding limitation to the children of the two living daughters, but would be entirely consistent with the j^receding limitation to the three grandchildren, daughters of Mrs. Simons, deceased. Then, again, the testator throughout his will has uniformly spoken of and referred to the children of
But it is contended that all inference that might be drawn from these circumstances is overcome hy the express terms employed in this last clause of the will — that is to say, wherein the testator has declared at what period the trusts shall terminate, “so far as regards her or his share coming either directly from me or from her or Ms mother’s proportion of my estate. ” Some of these terms are certainly inappropriately used, upon the supposition that only the three granddaughters Simons were referred to; but, as we have said, we are convinced, upon considering all the provisions of the will, that there has been an inappropriate use of pronouns by the testator in this clause. Doubtless, unless forbidden by what apjmars to be the clear intention of the testator, effect should he given to every word used by him; hut cases sometimes occur, where, from the misuse of terms, this cannot be done; and the meaning of terms have to he modified, and sometimes words even rejected, in order to reserve and give effect to what is the manifest intention of the testator. The general rule upon this subject cannot be better stated than in the words of Mr. Justice Lawrence, used in delivering the celebrated opinion of his in the case of Thellusson vs. Woodford, 4 Ves., 311, where, in laying down the rules of construction, he said: “It has been rightly admitted, that, whatever may be the strict, grammatical, construction of the words of a will, that is not to govern, if the intention of the testator requires a different construction; and this has been rightly admitted; for there can be no rule better established, than that in the construction of wills, the intention of the testator is to govern, if that intention be consistent with the rules of law; and every inaccuracy of grammar and every impropriety of terms shall
5. With respect to the duration of the trusts created, the terms of the will would seem to be free of doubt. It is declared that the trusts shall cease and determine after the deaths of the two daughters, Mrs. Middleton and Mrs. Buchanan, during whose lives the testator wished them to continue. This, in view of the language that follows, must be taken to mean the trusts of the two separate parts of the estate allotted to the two daughters, and that the trust should "cease upon the death of each daughter respectively, as to her particular part, and to which her children will then become entitled in possession. It is not declared that the trusts shall continue during the joint lives of the two daughters, nor is it declared that they shall'continue during the life of the survivor, as to both the separate parts of the estate; and there is no perceptible reason for the continuation of the trust beyond the life of the daughter who may first die, as to the particular part of the surviving sister, separated and made distinct by division of the estate, according to the' directions of the will. And with respect to the duration of the trust of the shares of the grandchildren, the time for it to cease is fixed at a definite period, without in any manner being dependent upon the event of death of the present living daughters. It is declared that “upon the event of my grandchildren respectively arriving at the age of thirty years, so far as regards such grandchildren, and their respective shares — that is to say, they (the trusts) shall cease and determine in the case of each grandchild, upon and as she or he reaches the age of thirty, so far as regards
6. With respect to the powers of the trustees, to sell any part of the real or personal estate, to pay debts or legacies, or to effect division among the devisees and legatees, according to the directions of the will; or to make or change investments, whether of real or personal property, in their discretion, the terms of the will would seem to admit of no question. The terms of the will are plain in conferring such powers, to be exercised in the manner and under the circumstances designated by the testator.
In all respects, except in the one particular mentioned, we agree with the Court below in the decree appealed from; but for the error referred to, we shall reverse the decree and remand the cause that the decree may be modified in accordance with this opinion.
Decree reversed, and cause remanded.