71 A. 999 | Md. | 1909
Richard D. Fisher, in his own right, as executor of Robert A. Fisher and as administrator of the estate of Samuel W. Fisher filed a petition asking the Court to ascertain and declare the true meaning and effect of the will of Robert A. Fisher, and to guide and direct him in the administration and distribtion of the fund referred to in the petition. The questions for our determination arise in this way: James I. Fisher, by his will, dated November 13th, 1866, and admitted to probate August 14th, 1877, directed that, after setting aside his wife's dower and thirds, the residue of his estate should be divided equally among his four children, Robert A., Richard D., Aminta E., who afterwards married Charles Green, and Mary M. Wagner, but provided that the shares of his two daughters should be held intrust for them for life, with remainder to their children. Mrs. Wagner died several years ago, leaving four children who are of age and are parties to this proceeding, and Mrs. Green died on the 16th day of March, 1908, without leaving issue.
The portion of the will of James I. Fisher material to this case is as follows: "But in case my said daughter, Aminta E., shall depart this life without leaving a child or children, or descendant or descendants of a child of hers, living at the time of her death, or in case she should leave a child or children, or descendant or descendants thereof, living at her decease, and such child or children and descendant or descendants shall all subsequently depart this life under twenty-one *245 years of age and without issue living at the time of his, her or their respective deaths, then in trust that the said last mentioned one-fourth part or share of the said rest, residue and remainder of my estate and property aforesaid shall be disposed of in manner following: One equal third part thereof shall go to and I do hereby give, devise and bequeath the same to my son, Robert A. Fisher, above named, his heirs, executors, administrators and assigns, absolutely and forever," etc.
Robert A. Fisher, after leaving to his wife, Emily P. Fisher, all the household furniture and plate of which he might die possessed, disposed of his estate by will dated February 3rd, 1877, as will be hereafter shown. He died on the 4th day of February, 1881, without leaving children, and his wife, whom he married in 1871, died in 1893. When he made his will he was forty-four years of age, had some property in his own right and his father, who was then nearly eighty years of age possessed an estate of about half a million dollars. His wife was ten years his junior and to use the language of the petition, "although the only issue of their marriage so far had been an infant, whose premature birth, in April, 1873, cut short its chance of life, he and his wife were both in good health and still in the prime of life, and there was no reason to anticipate that they would have no other children for whom to make provision in his will." James I Fisher, his father, died on July 30th, 1877, and Robert A. served with Richard D. and their mother as one of the executors of and trustees under James I. Fisher's will, and was familiar with its provisions, including that creating the trust for the benefit of Aminta E. Green. The only child of Mrs. Green, which was born in December, 1871, died on March 28th, 1878, having never shown any promise of health or strength. At the time of its death, Mrs. Green had been married nearly nine years, was in the forty-third year of her age, while her husband was then seventy years old, and the petition alleges that Robert A. Fisher therefore knew for some time before his own death that "one-third of the remainder *246 after his said sister's life estate under her father's will was for all practical purposes sure to come ultimately to him or his representatives." The Safe Deposit and Trust Company of Baltimore was substituted as trustee in place of Mr. Richard D. Fisher, and now has a fund in hand ready for distribution.
The appellees contend: (1) That the interest in the contingent remainder created by the will of James I. Fisher, above quoted, which would have been taken by Robert A. Fisher, if he had survived the happening of the contingency, could not pass by any will made by him; and (2) That if it could, the language used by him in his will was not adequate to transmit this interest. If the views of the appellants are correct, the fund will go to the children of Richard D. Fisher, while if those of the appellees prevail, one-half will go to him and the other half to the children of Mrs. Wagner. The latter are the appellees — the Court below having determined by its decree: "That no interest in the contingent remainder limited in the will of James I. Fisher upon the death of Aminta E. Green, passed under the will of Robert A. Fisher, and that he died intestate threeof, and the same vested in the next of kin of said Robert A. Fisher living at the death of said Aminta E. Green."
The answer of the appellees admits the facts alleged in the petition, but the inferences sought to be drawn from those alleged in paragraphs four and five and the argument based thereon they leave to the judgment of the Court. It is proper to say that the proceeding is entirely friendly and the respective parties seem to be wholly free from those feelings which so often exist, and are sometimes made manifest by the record, in cases involving controversies over estates, although the arguments of counsel were exceptionally able, and the rights of the parties under the law fully and thoroughly presented according to their respective contentions.
As there was no appeal from the decree of August 3rd, 1908, declaring that Stanley K. Green has not "by virtue of being the adopted son of Aminta E. Green, any right, title *247 or interest as one of the next of kin or heirs at law of Robert A. Fisher, brother of the said Aminta E. Green, in or to any part of the property now held" by the trustees, we are not called upon to pass on that, but would add that as the Act of 1892, which provided for the adoption of children in Maryland and giving such adopted children certain rights, was passed some years after the death of James I. Fisher, there would seem to be no doubt that Stanley K. Green was correctly adviised, as he in effect stated in his answer, that he was not entitled to any interest in the fund in controversy.
1. As Mrs. Green died without leaving any issue, if Robert A. Fisher had survived her, he would undoubtedly have taken a share in the remainder left Mrs. Green, under the clause of his father's will above quoted, but the question is whether he had such an estate, right or interest in that share as he could dispose of by will. The contingency attached to his taking it did not in any way relate to his capacity to take, and there was no contingency as to who was to take, but Robert A. Fisher was distinctly named as the one. The learned counsel for the appellees argued that the distinction made by some authorities between the case of a person designated to take a remainder upon the happening of a future contingency and that of persons who belong to a class which is to take in the same event is highly artificial. Such distinction, however, has not only been recognized in this State, but it seems to us to be a logical one. If a testator names a person who is to take upon the happening of a contingency, it is altogether different from naming aclass of persons who are to take. If, for example, he names A. as the object of his bounty, on the happening of a certain contingency, it is known who is to so take, but if he leaves his estate, upon the happening of a contingency, to the survivor of B., C. and D., or to such of the children of A. as may then be living, it cannot be said in advance who will take, if the contingency happens.
It does not seem to be altogether logical to say that Robert A. Fisher had no interest because he died before the happening *248 of the contingency, but that his heirs or next of kin, as such, can take. Independent of statute, if a legatee or devisee named in a will dies before the testator, his heirs or next of kin would not take, and the devise or the legacy would lapse, because he did not live until the time when such devise or legacy would be effective, and so it would seem to be logical that if he took nothing because he died before the contingency happened, that the heirs or next of kin ought not to take. In 1 Roper on Legacies, ch. 10, sec. 4, page 596, after stating that if the substituted legatee dies before the contingency happens, upon which he is to succeed to a legacy, his representative will be entitled to it so soon as the event takes place, it is said: "Suppose, then, a bequest be made to A., but if A. died under twenty-one, or without leaving issue or children, to B., although B. happened to die before A., B.'s personal representative would be entitled to receive the legacy upon the happening of the contingency, on theground of its being vested in right in B. previously to his decease," and there are many other authorities to the same effect.
But as the counsel for the respective parties differ as to the construction of some of the decisions of this Court, and as there may be some apparent, although not, in our judgment, real, conflict between some of those decisions, it will be well to review them at some length. In Snively v. Beavans,
In Hambleton v. Darrington,
In Buck v. Lantz,
It is contended by the appellees that this is one of the cases which overruled Hambleton v. Darrington, supra, but we do not so understand it. It is true the Court said: "If Mary Harwood had outlived Margaret Buck, the younger, there is no doubt that the contingent remainder, thus limited, would have become an absolute estate vested in her, immediately upon Margaret's death without issue living at that time. But Mary Harwood having died during the lifetime of the tenant for life, so that the estate could not vest in her, it is contended that her heirs have no title to the estate." But the Court went on to quote from 4 Kent's Com. 262, that "Contingent and executory, as well as vested interests, pass to the real and personal representatives according to the nature of the interest, *251 and entitle the representatives to them, when the contingency happens;" and again from Barnitz Lessee v. Casey, 7 Cranch, 469, that: "It is very clear that contingent remainders and executory devises at common law are transmissible to the heirs of the party to whom they are limited, if he chance to die before the contingency happens." It was not necessary in that case to determine whether they were devisable, for Mary Harwood had made no will, but the Court did not say, or intimate, that such estates as are transmissible are not devisable, as had been held in Hambleton v. Darrington. Our testamentary laws provide that any lands, etc., which can be conveyed, or descend to or devolve upon heirs, or other representatives, and all personal property which might pass by deed, etc., can be disposed of by will, and hence it might be argued from them that an estate which is transmisible is devisable.
In discussing the question who were the heirs of Mary Harwood entitled to the estate, the Court said: "It is clear that those only can take who were in esse at the time when thecontingency happened and the estate fell into possession. That did not occur until after the death of Margaret Buck. She could not, therefore, be heir, or take or transmit any interest in the estate by will or otherwise." But that does not reach the question in this case. The rule is, that only the heirs of the contingent remainderman who are in esse when the contingency happens and the estate falls into possession can take, and as Margaret Buck was not then in esse, she was not an heir, and, of course, she could not take, or transmit any interest in the estate by will or otherwise, but that does not affect the other rule that an estate which is transmissible is devisable. That clearly means devisable by the designated remainderman, and it does not mean that it is devisable after the contingency happens, for then it is no longer a remainder, but has become the absolute property of the remainderman — unless, of course, there be some other provision in the instrument creating it which may affect it. JUDGE GRASON delivered the opinion in Buck v. Lantz, and sat in Hambleton v. *252 Darrington, and JUDGES BARTOL, MILLER and ALVEY sat in both cases. Surely, if they had intended to overrule Hambleton v.Darrington, they would have said so.
In Demill v. Reid,
The testator died in 1860, the grandson died in 1866, without leaving issue, and the son had died in 1887. The son had six children three of whom were living at the time the case was heard, one died in 1875, intestate and leaving no descendants, another died in the lifetime of her father, leaving an only child who also died in the lifetime of the father leaving no issue, and the other died in 1874 leaving four daughters who were still living. The question was whether those four daughters took the interest which their mother would have taken had she survived the life tenant, or did it all go to the three children of the son who did survive the life tenant? The Court said: "As a general rule, a contingent remainder of inheritance is transmissible to the heirs of the person to whom it is limited, if such person chance to die before the contingency happens," referring toFearne, 364. JUDGE MILLER then quoted from 4 Kent's Com.,
261, that "it is settled that all contingent estates of inheritance, as well as springing and executory uses, and possibilities coupled with an interest, "where the person to take is certain, are transmissible by descent, and are devisable and assignable." The Court referred to the fact that the doctrine was vigorously *253
criticised by Mr. Bingham in his book on descents, but said it had been recognized by this Court in several cases by which the Court felt bound, and added: "The rule by its terms applies where the person to take is certain; that is, where an individual is named or definitely described as the party to take when the contingency happens; and of this the case of Hambleton v.Darrington,
The case of Larmour v. Rich,
Great reliance is placed by the appellees on Lee v.O'Donnell,
There is another part of the will that strongly sustains the conclusion reached. It is that part which provided that in the event of the death of any of the three grandchildren under twenty-one years of age, and without issue, the "share of him or her or them so dying shall go to and become the property of the survivors or survivor of them absolutely," etc., and in case all three of them died under twenty-one and *256 without leaving issue, then the will provided that the said share "shall go to and become the estate and property of all my other children then living and all the descendants or descendant then living of such of them as may be then dead," etc. It was therefore impossible to tell until the death of the life tenant who was to take — consequently the person to take was not certain, and hence the rule as announced in Hambleton v.Darrington, and followed in Demill v. Reid, and other cases did not apply. That was sufficient to prevent the widow and administratrix from being entitled to share in the interest which would have gone to Louis Courtney O'Donnell, if he had been living at the death of the life tenant. Then again, Louis Courtney O'Donnell did not make a will and hence, as decided inBuck v. Lantz, only such as were his heirs in esse at the time of the happening of the contingency could take. His daughter, Louisa Courtney O'Donnell, was his only heir, and, as such, she did take what her father would have taken if he had survived Oliver O'Donnell.
There is certainly nothing in Reilly v. Bristow,
We have thus at such great length reviewed many of our own decisions because there seemed to be some misapprehension as to the law on the subject before us in this State. Our conclusions are that Hambleton v. Darrington, has not been overruled by this Court, and that Robert A. Fisher took a transmissible and devisable estate under the will of his father, as the person totake was certain, and there was nothing in the will of James I. Fisher which indicated his intention that such interest or right as a contingent remainderman may have, before the happening of the contingency, should be postponed until the death of the life tenant. It is proper to add *257 that the whole will is not before us, but we assume that if there had been anything in it affecting the question it would have been inserted in the record.
We will not further discuss authorities outside of the State, but will cite some not already mentioned, which more or less reflect upon the questions before us. 2 Wash. on Real Prop. (6th Ed.), section 1557; 2 Minor's Inst., 361; 2 Williams onExecutors, 888, 889; Pinbury v. Elkin, 1 P. Williams, 564;Peck v. Parrot, 1 Ves. Sr. 236; Robertson v. Fleming,
(2) The next question is whether the language used in the will of Robert A. Fisher was sufficient to, and did include, this remainder. After giving to his wife certain household furniture and plate he made this bequest: "I give, devise and bequeath unto my brother, Richard D. Fisher, all the rest and residue of my estate, real, personal and mixed, of which I may die possessed, in trust," etc. That expression was certainly broad enough to include all that he could devise and bequeath, unless the words "of which I may die possessed," so qualify the rest of the clause as to prevent this remainder from passing. There is nothing else in the will, or circumstances surrounding it, which would indicate an intention on the part of the testator to die intestate as to any property he could devise or bequeath, but the contrary is manifested. It was said in Barnum v. Barnum,
A number of cases reflecting upon the meaning of the term "of which I may die possessed" can be found in the books. In Thomas
v. Blair,
We are, then, of the opinion that the expression "of which I may die possessed" did not limit the broad language of the testator used in that clause. Nor do we think that the rest of the will indicates an intention not to include such an interest as this. Several years before his death the testator had reason to believe that he would get the benefit of Mrs. Green's share, as he was presumably familiar with the terms of his father's will, and as he was making provisions for his wife and any child or children that he might leave, there is every reason to believe he intended to include everything he could dispose of by will. The mere authority given the trustee to "invest" his property, with power to change said investments, cannot be held to mean that he intended to exclude this remainder, because that could not in its then condition be invested by the trustee. The trust might have lasted years after the contingency happened.
We will reverse the decree, but will order the costs above and below to be paid out of the fund, as both sides have requested that to be done, whatever our conclusion might be.
Decree reversed, and cause remanded in order that a decree maybe passed in accordance with this opinion, the costs, above andbelow, to be paid out of the fund remaining in the hands of theSafe Deposit and Trust Company of Baltimore, substitutedTrustee. *260