89 A. 1094 | Md. | 1914
By the will of Dr. Thomas Edmondson, of Baltimore City, who died in 1856, a trust was created, as to a stated share of his residuary estate, for the benefit of each of his daughters during her life, and after her death "for such uses, intents and purposes" as she might by her last will direct and appoint. It was provided that if any of the daughters should die intestate, after marriage or attaining the age of twenty-one years, her share of the estate should go to her heirs under the laws of Maryland. The testator's daughter, Emma, was married in 1869 to Gabriel D. Clark, Jr., and died in 1872, survived by her husband and a daughter and leaving a will whose sole object, as indicated by its terms, was to exercise the power of testamentary disposition given her by the will of her father as to the estate of which he had made her the life beneficiary. The will of Mrs. Clark, after making certain pecuniary bequests, disposed of the residue of the estate as follows:
"All the rest and residue of my estate, real, personal or mixed, I give, devise and bequeath to my dear husband, Gabriel D. Clark, Jr., for and during his natural life; and from and immediately after his death I give, devise and bequeath my said estate to my daughter, Gabrielle Edmondson Clark, for and during her natural life, with power and authority to my said daughter, upon her arriving at the age of eighteen years, or upon her marriage, to dispose of said estate by last will and testament to such person or persons as she may think proper; but in case of the death of my said daughter without leaving a will, then the estate is to go to the child or children of my said daughter, their heirs or assigns, to be equally distributed *567 between them, if more than one, per stripes and not per capita. But in the event of the death of my said daughter without leaving children, and without leaving a will, then I give and bequeath the said estate to such person or persons as may under the Laws of the State of Maryland be entitled to take an estate in fee from me."
The testatrix appointed her husband as the executor of her will and conferred upon him power and authority to sell all or any part of the estate and to reinvest the proceeds. The estate now consists of certain real and leasehold properties in Baltimore City, of considerable value, and securities worth about $35,000.00. Mr. Clark upon the death of his wife came into possession of the estate, and held it as life tenant until his death in 1910. He was survived by his daughter, named in the will, who was married to Chauncey Gambrill in 1892. They have one child, a daughter, now about nine years of age. In this amicable proceeding, the inquiry is as to the nature and extent of the interest vested in Mrs. Gambrill under the wills to which we have referred. The theory of the bill is that the attempted exercise by Mrs. Clark of the power of appointment given by her father's will was in violation of the rule against perpetuities and therefore totally ineffective and void, and that the devolution of the estate is consequently governed by the provision, in Dr. Edmondson's will, that upon the death of any of his daughters intestate her share should pass to her heirs. The result of this construction would be to vest the estate in Mrs. Gambrill absolutely, as she was Mrs. Clark's only child and heir at law. This view was not accepted by the Court below, but its conclusion was that the execution of the power of appointment was valid to the extent of the successive life estates it created for the benefit of the husband and daughter of the testatrix, and that it was void only in so far as it sought to subject the estate to a second power of testamentary disposition. It was accordingly decreed that Mrs. Gambrill was entitled to an estate *568 for life only, and that at her death the property would belong to the heirs of Mrs. Clark upon the theory that she died intestate as to the remainder and that the title passed as provided by the will of her father in reference to such a contingency.
For the purposes of the present inquiry the dispositions made by the will of Mrs. Clark under the power conferred by her father's will must be treated as if they had been made by the testator from whom the authority emanated. It is a settled rule that in order to test the validity of such appointments they must be construed as if they were inserted in the instrument creating the power. Levenson v. Manly,
The question we have to decide is to what extent, if at all, this disposition of the estate contravenes the rule against perpetuities. The object of the rule is to prevent the limitation of estates for future vesting upon contingencies which are not certain to happen within the period of a life or lives in being, when the instrument making the disposition takes effect and twenty-one years beyond, with an additional allowance of time for the possible birth of a posthumous child. Dallam v. Dallam, 7 H. J. 220; Newton v. Griffith, 1 H. G. 111; Biscoe v.Biscoe, 6 G. J. 232; Barnum v. Barnum,
In the present case the final limitation is to the appointees of a life tenant who was not in being when the will to which the power of appointment is to be referred became operative, or to the children of the life tenant in the event of her failure to exercise the power. This alternative limitation is plainly in conflict with the rule against perpetuities. It provides for a future estate whose vesting is dependent upon a contingency which will not be determined until the expiration of a life which came into existence after the death of the original testator. Upon no possible theory can it be said that the remainder thus limited was certain to vest within the period prescribed by the rule.
It does not result, however, from this conclusion that the life estate given Mrs. Gambrill under the first power of appointment must be held invalid. On the contrary, the rule is that "Where an interest or estate is given by deed or will with a limitation over on a specified contingency, such limitation, if it violates the rule against perpetuities, is, for the purpose of determining the effect on the prior disposition of the property, to be considered as stricken out, leaving the prior disposition to operate as if a limitation over had never been made." Graham v.Whitridge; Heald v. Heald, Supra; Goldsborough v. Martin,
In the case of Heald v. Heald, supra, there was a devise in trust for the testator's son, Charles, for life, and after his death for the use and benefit of his children living at his death, in equal shares, for their lives. Upon the question as to whether this limitation for the lives of grandchildren who might be born after the testator's death was in conflict with the rule against perpetuities this Court said: "The life estate thus given to the children of Charles, who survive him, must take effect immediately on his death, or within the period allowed by law thereafter — that is, it must take effect immediately upon the termination of a life in being at the time of the death of the testator. It is well settled that a devise for life to the unborn child of a person who is living at the death of a testator is valid. Stewart v. Cockerill, 7 L.R. Eq. 366; Avern v.Lloyd, 5 L.R. Eq. 383; Smith's Ed. of Fearn on Cont. Rem., Vol. 1. p. 502 marg.; Vol. 2, sec. 536a. If a limitation be good within the rule against perpetuities, it matters not whether the estate given be a fee or absolute property, or of a less or partial interest, as for life or otherwise. Lewis onPerpetuities; 52 Law Lib., 172 marg.; 1 Jarman on Wills, 261 marg."
In Graham v. Whitridge, supra, a life estate had been created by the will of George Brown in favor of his daughter, Mrs. Greenway, and it was provided that in the event of her death without issue the estate should be held in trust for such of the testator's other children or descendants and in such proportions and for such estates as his daughter might by will appoint. In the exercise of this power, Mrs. Greenway disposed of the estate in part to certain great-grandchildren of the original testator for life and in remainder to their descendants. After holding that the ultimate *572 limitations in remainder were void for remoteness, the Court next proceeded to consider whether the preceding life estates were valid. None of the great-grandchildren to whom these estates were given had been born when Mr. Brown died, but they were all living at the time of the death of Mrs. Greenway, the life tenant, and as she was in being when her father's will took effect, it was held that the life estates were bound to vest "within the period of a life in being and twenty-one years beyond." "If," said JUDGE McSHERRY, "we read into the will of George Brown, the donor, the dispositions made in the second and fifth clauses of Mrs. Greenway's will, it is perceived at once that though the beneficiaries of the life estate were not in esse at the time of the donor's decease, the life estates created for them by Mrs. Greenway are precisely such as would have been created had the donor, instead of giving Mrs. Greenway the power of appointment, inserted in its place a bequest of life estates to his great-grandchildren without naming them, but describing them as the grandchildren of his son, Alexander Brown, and his daughter, Isabella Graham, living at the time of the death of the donee of the power. Read in that way, there can be no question that the life estates do not violate the rule against perpetuities because instantly upon the death of Mrs. Greenway they vested in these great-grandchildren who were then all in being."
The cases of Reed v. McIlvain and Thomas v. Gregg,supra, have been cited as sustaining the view that the limitation we are now considering is invalid. In the latter case a disposition was made by the will of John Gregg in trust for the use of his daughter, Annie G. Thomas, for life, and after her death for her issue then living, equally per stirpes. The will also empowered the daughter to dispose of the trust estate to "some" of Mr. Gregg's grandchildren or descendants. Mrs. Thomas exercised this power by devising and bequeathing the property in trust for her children then living, and those thereafter born, during their respective lives. There *573 were three children to whom this description applied, one of whom had been born after Mr. Gregg's death. The question to be determined was whether the disposition made by the will of Mrs. Thomas, when read as a part of her father's will, was a valid exercise of the power of appointment. The limitation as thus read was for the lives of children who might be born to her after the death of the donor of the power. This was held to violate the rule against perpetuities.
In Reed v. McIlvain, the will of James Beatty had created a trust for the benefit of his daughter, Sarah E. McKim (who afterwards married Donald McIlvain) for the term of her natural life and after her death "for the use of such person or persons or for such uses and purposes," as she might appoint by her last will and testament. In the execution of this power Mrs. McIlvain left a will by which she gave part of the estate to trustees for the benefit of her four children during their respective lives. Three of these were living at the time of the death of their grandfather, James Beatty, and one was born subsequently. The limitation in question, being read into Mr. Beatty's will, provided a life estate for children of his daughter who might be born to her after his death, and for this reason it was held to be in conflict with the rule.
The decision in Reed v. McIlvain followed by distinct reference the ruling in Thomas v. Gregg, and that case appears to have been controlled by a statement quoted from the opinion in Barnum v. Barnum, supra, that: "If an estate be so limited as by possibility to extend beyond a life or lives in being at the time of its commencement, and twenty-one years and a fraction of a year (to cover the period of gestation) afterwards, during which time the property would be withdrawn from the market, or the power over the fee suspended, it is a perpetuity, and void as against the policy of the law which will not permit property to be inalienable for a longer period." In the Barnumcase the Court was passing upon the validity of a trust under which express power was conferred upon the trustees, and their heirs and successors, to *574 execute leases of the trust property so long as the testator's children or any children or descendants left by any of them at their death should live, any lease executed during the period thus described to be effective for its stipulated term notwithstanding the previous cessation of all the lives mentioned. The point decided was that the trust was void because it involved the execution of leasing powers beyond the period allowed by law. In Reed v. McIlvain and Thomas v. Gregg the principle of the Barnum case was construed and applied as confining the duration of a trust within a life or lives in being and twenty-one years thereafter, and not as merely restricting the future vesting of an estate within that period. This theory of the rule is not in accord with its purpose and effect, as defined in the earliest decisions of this Court on the subject, and in its statement of the rule in the recent cases ofLevenson v. Manly, supra, Starr v. Starr M.P. Church, supra,and Hollander v. Central Metal Co., supra, as well as in the cases of Heald v. Heald and Graham v. Whitridge to which we have more particularly referred. As we adhere to the principle of the rule as there expressed and find it controlling in the present case, we must hold that the limitation under the power of appointment in Dr. Edmondson's will for the life of Mrs. Gambrill, after the life estates provided for her parents, is not in violation of the rule against perpetuities and is a valid exercise of the power.
The will of Dr. Edmondson provided, as already noted, that upon the death of any of his daughters intestate, after marrying or becoming twenty-one years of age, her share of the estate should belong to her heirs under the laws of Maryland. Inasmuch as the attempted appointments by Mrs. Clark, after her daughter's life estate, were void under the rule against perpetuities, she must be held to have died intestate, within the meaning of her father's will, as to the estate in remainder, and that interest, therefore, passed under the latter will to Mrs. Gambrill as her mother's only heir at law. It thus develops that the appellant is entitled to both *575
the life estate and the remainder in the property involved in these proceedings, and as there is no intervening interest, a merger of these estates has occurred, by reason of the unity of her ownership, and she is consequently invested with a complete and unqualified title. 16 Cyc. 667; Starr v. Starr M.P.Church
Decree affirmed in part and reversed in part, and causeremanded to the end that the decree may be modified in accordancewith the opinion, the costs to be paid out of the estate. *576