77 A. 321 | Md. | 1910
Joseph Zane, of Boston, Massachusetts, died leaving a last will and testament and codicil, which were duly admitted to probate in the Probate Court of Suffolk County, Massachusetts, and in the Orphans' Court of Baltimore City. The will, which was executed the 31st of March, 1896, disposes of a large estate to his wife, brother and sister, nieces and nephews, grandnieces and grandnephews, and certain nieces of his wife. Among the numerous devises and bequests is the following provision for his nephew, Joseph Zane, of Baltimore City, and said nephew's daughter and her children: *130
"I give, devise and bequeath to John Grace Suman, of Baltimore, Md., my real estate corner of Baltimore and Carey streets, in said Baltimore, containing about fifteen hundred square feet of land, and the buildings thereon, and the sum of twenty thousand dollars, in trust nevertheless for the uses and purposes following, to wit: The annual income of said real estate and of said twenty thousand dollars shall be paid by said trustee quarterly to my nephew, Joseph Zane, of said Baltimore, for the full term of his natural life, and after his decease, the remainder of said real estate and said twenty thousand dollars shall go to Sarah Clarinda Zane, daughter of said Joseph Zane (my grandniece) during the term of her natural life, and to her children in fee simple, if she leaves issue; but if she dies without issue, at her decease said real estate and said twenty thousand shall go to my heirs at law, discharged of all trusts."
The residuary clause of the will is as follows: "All the rest and residue of my estate, real, personal and mixed, of which I shall die seized, and possessed or to which I shall be entitled at my decease, I give, devise and bequeath to my heirs at law and their heirs by right of representation, in fee simple," etc.
In March, 1899, the testator executed a codicil, in which he confirms his said will, "so far as this codicil is consistent therewith," and after a nnumber of devises and bequests therein, disposes of the entire remainder of his estate as follows:
"All the rest and residue of my estate, real, personal and mixed, wheresoever it may be found and of whatsoever it may consist, I desire it to be divided into three equal parts, and disposed of as follows:
"To my nephew, Joseph Zane, one part subject to the same trusteeship and conditions as stated in my will of March 31, 1896.
"To my niece, Ellen Amelia Zane Clairage, one part. To my niece, Georgianna Kelley, one part." *131
John Grace Suman declined to accept the trust created by the above provisions of the will and codicil, and William J. O'Brien, Jr., of Baltimore City, was by the Probate Court of Suffolk County, Massachusetts, appointed trustee in his place, and the entire trust estate created by said provisions of the will and codicil, consisting, as now invested, of Baltimore City ground rents and mortgages on property in Maryland, and amounting to about sixty-five thousand dollars, was in possession of said substituted trustee at the time of the filing of the bill in this case, and until he was, by an order of the Court below in this case, appointed receiver to take and hold the same until the further order of said Court.
Sarah Clarinda Zane, the daughter of Joseph Zane of Baltimore City, referred to in the above paragraph of the testator's will, who survived the testator, married Pinckney T. Payne, had one child, Pinckney T. Payne, Jr., and died on the 15th day of July, 1905, leaving her said child, an infant, and her husband surviving. Pinkney T. Payne, Jr., the infant, also died in the lifetime of Joseph Zane, of Baltimore, leaving surviving him his said father, Pinkney T. Payne. Joseph Zane, of Baltimore, is now dead, and after his death the trustee of one of the heirs at law of the testator filed the bill in this case against the testator's other heirs at law, William J. O'Brien, as trustee and as executor of a deceased heir at law, and Pinkney T. Payne, alleging, among others, the facts we have stated; claiming the property devised and bequeathed to Joseph Zane by the will and codicil, and asking for a construction of said will and codicil; the appointment of a receiver to take charge of the property, and for a partition of the same among those entitled thereto. Pinkney T. Payne demurred to the bill, and the three appeals in the record in this case are by different defendants from the decree of the Court below sustaining the demurrer and dismissing the bill.
The contention of the appellants, in respect to the property mentioned in the above paragraph of the will, is that Pinckney T. Payne, Jr., the infant child of Sarah Clarinda *132 Payne, having died before the expiration of the equitable life estate of Joseph Zane, of Baltimore, the estate he would have taken had he survived his grandfather, passed by the terms of the will to the heirs at law of the testator; and in respect to property devised and bequeathed to Joseph Zane, of Baltimore, by the codicil, that the testator did not intend that, after the death of Joseph Zane, it should go to said nephew's daughter and her children, according to the provisions of the will relative to the property therein given to said nephew.
It is insisted that Pinckney T. Payne, Jr., did not, at the time of his death, have a vested interest in the property, but in this we think the appellants are clearly wrong. The will gave alternative contingent remainders; first to the children of Sarah Clarinda Zane, if she left any, and if she died without leaving issue, then to the testator's heirs at law. During the life of his mother the interest of Pinckney T. Payne, Jr., was contingent, depending for its vesting upon his surviving her, and the remainder in favor of the testator's heirs at law was contingent upon Sarah Clarinda Payne's dying without issue. Upon the death of Mrs. Payne leaving a child, the only contingency upon which the remainder in favor of her children depended by the terms of the will had happened, and her child took a vested remainder, thereby destroying all possibility of a future interest in the heirs at law of the testator, whose remainder was limited to take effect only upon the death of Mrs. Payne without issue. It is said in 24 Am. Eng. Ency. of Law, (2nd ed.) 417, that, "The rule that a remainder cannot be limited after a fee simple does not forbid the limitation of two or more remainders in fee simple as substitutes or alternatives the one for the other, that is, on such contingencies that only one of the remainders can possibly vest. Such limitations are variously called contingencies with a double aspect, or gifts on a double contingency, or gifts or devises on two alternative contingencies. Each of such fees is a remainder in regard to the particular estate, but none is a remainder in regard to any other of them." The same rule is stated in 2 Washburn on RealProperty, (6th *133 ed.), sec. 1575, as follows: "Notwithstanding a remainder limited after a remainder in fee would be void, yet two remainders may be so limited, though each a fee, as to be good, provided this is so done that only one is to take effect, the one being a substitute for, and not subsequent to, the other. The consequence is, that, if the first takes effect and becomes vested, the other at once becomes void. Such limitation is said to be of a fee with adouble aspect."
In the case of Demill v. Reid,
Demill v. Reid is so conclusive as to the character of the estates with which we are dealing in this case, and has been so frequently cited and relied on in this State, that it is not necessary to do more than refer to some of the cases. Larmour
v. Rich.,
It is claimed, however, that these cases do not apply because of the outstanding life estate of Joseph Zane of Baltimore, and that the remainder in favor of the child and of Mrs. Payne could not become vested until after the death of the first life tenant. But that view is not warranted by any reasonable construction of the will. By its terms it was to be determined at the death ofMrs. Payne which of the alternative remainders was to take effect. If she left issue they were to take to the exclusion of the heirs at law of the testator. No other time was appointed, and the remainder to her children was not dependent upon anyother contingency. It could not, of course, vest in possession until after the death of Joseph Zane of Baltimore, but theright of Pinckney T. Payne, Jr., to the possession of the estate after the death of the life tenant, became a certain and vested right upon the death of his mother. The fact that his possession of the property had to await the determination of the preceding life estate did not make the remainder a contingent remainder. It is said in 24 Am. Eng. Ency. of Law, (2nd ed.) 389, that, "The true criterion of a vested remainder is the existence in an ascertained person of a present fixed right of future enjoyment of the estate limited in remainder, which right will take effect in possession immediately on the determination of the precedent estate, irrespective *135
of any collateral event, provided the estate in remainder does not determine before the precedent estate." In Cox v. Handy,
Applying the rule as stated to the remainder of Pinckney T. Payne, Jr., if the preceding life estate had determined any time after his mother's death and before his death, he would have come into possession of the estate, and his remainder after his mother's death was, therefore, a vested remainder, and being in fee, upon his death before the expiration of the life estate of Joseph Zane, it passed, so far as it is real estate, to his heirs at law, and to the extent that it is personal property, to his personal representative, subject to said life estate. Cox v.Handy; In re Roger's Estate,
In respect to the one-third of the residue of the estate devised and bequeathed by the codicil to Joseph Zane "subject to the same trusteeship and conditions as stated in my will of March 31, 1896," it is claimed by the appellants that these words do not mean that Joseph Zane's daughter and her children were to have the property after his death according to the terms of the devise and bequest to them in the will, but we think they are also wrong in this contention. By his will the testator gave all the rest and residue of his estate to his heirs at law. This provision of his will was, as was said in O'Brien v. Clark,
The appellants rely mainly on the case of Buchanan v.Lloyd,
It is apparent that there is a marked difference in the words employed in the two wills. Following the construction adopted by JUDGE ALVEY, if the testator in this case had said, subject to the same trusteeship as stated in my will of March 31, 1896, it would have been interpreted to mean that the property was to be held in trust for the life of Joseph Zane. But that is not what the testator said. The gift to his nephew was not subject to the same trusteeship as stated in the will, but subject to the same trusteeship and conditions *139
as stated in the will. If subject to the same trusteeship as stated in the will would have meant that his nephew was only to have an equitable life estate, what significance is to be given to the additional qualification that it was to be subject also to the same conditions as stated in the will? It can only mean that the devise and bequest was to be subject to all the terms and provisions contained in the will relating to the property there given to his nephew. Morever, in the case referred to the effect of the claim of Mrs. Winder's children would have been to withdraw the $5,000.00 from the operation of the residuary clause of the will, by which the testator bequeathed the residue of his personal estate to his sons, and it was that feature of the case that largely controlled the Court in reaching its conclusion. Here the effect of the contention of the appellants would be, not only to withdraw the fee in the third given to Joseph Zane from the operation of the residuary clause of the codicil, but to also defeat the obvious purpose of the testator to dispose of his entire estate. So if we adopt the reasoning of the Court inBuchanan v. Lloyd, it furnishes ample authority for withholding our assent to the claim of the appellants in this case, and in the later case of Buchanan v. Lloyd,
After carefully considering all the provisions of the will and codicil in this case, we can reach no other conclusion than that Pinckney T. Payne, Jr., the infant child of Sarah Clarinda Payne, took, at his mother's death, a vested remainder in the property devised and bequeathed by the will and codicil in trust for Joseph Zane, of Baltimore City, for life, etc., and that the heirs at law of the testator have no interest in this property. The decree of the Court below, sustaining the demurrer of the appellee and dismissing the bill, must, therefore, be affirmed.
Decree affirmed with costs, in each appeal. *140