Roberts v. Roberts

62 A. 161 | Md. | 1905

There are two appeals in this record — one of which was taken by Margaret L. Roberts from that portion of a decretal order of the Court below, which determined that her interest in her father's estate passed to Messrs. Roberts and Reindollar, trustees, under a deed of trust made by her and her husband, and the other by Margaret A. Landon and Clymer White, administrator, which involves the construction of the will of Augustus Shriver. The property of the testator having been converted into cash, the questions arising were presented by exceptions to audits. We will first consider the appeal last mentioned.

1. Augustus Shriver was married twice, and died on the 28th of July, 1872, leaving surviving him a widow, two children by his first wife and eleven by his second. After bequeathing one hundred dollars to each of the two children by his first wife and providing for payment of his debts and funeral expenses, he devised and bequeathed all the rest and residue of his estate to his wife "for and during the term of her natural life, in trust for the use and benefit of herself and our children" — expressing his confidence that she would manage it as would be most advantageous to herself and children. He then authorized his wife to sell any part of the real estate which she thought proper — "the proceeds of such sale or sales to be invested upon the trusts of this will" — and also to lease the real estate. He further gave her authority to use so much of the principal as may be required, "if it shall be necessary for the support of herself and our children, or for their education or advancement in life (all of which I confide to her discretion)," but recommended that she should not sell the farm on which he resided unless absolutely necessary. Then follows this clause, "I devise and bequeath all my estate, real and personal, remaining at the death of my said wife, to my children by my said wife, share and share alike, absolutely in fee-simple, the child or children of a deceased child shall stand in its or their parents place and stead, and receive and have the share and interest its and their parent would have been entitled to if living." He appointed his wife guardian of their children until they were twenty-one years of age, and sole executrix of his will.

Mrs. Shriver, the widow, died May 1st, 1902, having disposed of a part of the corpus of the estate, in pursuance of the power conferred upon her. Two of the eleven children died after their father and before their mother — Alice E., who married George R. Gehr and left four children, and Carrie, who married Edwin Reese, leaving her husband and twin boys surviving her. Those twins died a few days after their mother. Edwin Reese, the husband of Carrie, married Margaret A. Adams after the death of his two children, and died November 22d 1887, leaving all his property of every character and description to his wife, Margaret. She afterwards married Thomas D. Landon. Letters of administration were granted to Clymer Whyte on the estates of the two Reese children. The statement of these facts will suggest the claim of Mrs. Landon, that is to say; that the two Reese children took their mother's interest in the estate of Augustus Shriver, and having died intestate their interest went to Edwin Reese, their fatheir as heir-at-law and next of kin, who by his last will and testament left them to his widow, who is now Mrs. Landon, one of the appellants — the children of the testator according to Mrs. Landon's contention, having taken vested remainders in his estate.

It will be observed that the testator left his entire estate (after payment of debts, funeral expenses and legacies) to his wife "for and during the term of her natural life in trust for the use and benefit of herself and our children." The legal title was therefore vested in her and she and their children were thecestuis que trustent. The widow and eleven children held the equitable estate and were the beneficial owners during the widow's life. If the testator had simply left his estate to his widow and their eleven children, during the life of the former, and at her death to the eleven children, there could be no doubt that the children would have taken vested, not contingent, remainders in the estate. It is thoroughly settled in this State that "it makes no difference, as to the vesting, whether the legal estate be devised to trustees who are required to convey according to the directions of the will, or whether the interest is provided to take effect without the intervention of trustees, nor that the trust provides for the accumulation of income until the period of payment or distribution arrives." Tayloe v.Mosher, 29 Md. 451; Ellicott v. Ellicott, 90 Md. 329.

The power given Mrs. Shriver to sell the real estate and invest the proceeds upon the trusts of the will was certainly not sufficient to show an intention to create a contingent instead of a vested remainder, nor was the power to lease it. Nor can it be said that the power to use so much of the principal as was necessary for the support of herself and children or for their education or advancement in life necessarily made these contingent remainders. Although that power was expressly confided to her discretion, he did not give the estate to her to do what she chose with it, for her own benefit, but she could only use it for the purposes named, that is to say, for the support of herself and the remaindermen, or for the education or advancement in life of the latter. In Benesch v. Clark, 49 Md. 497, it was said that where an estate is given to a person generally or indefinitely with the power of disposition, such gift carries the entire estate, and the devisee or legatee takes the property absolutely, but when the property is given to one expressly forlife, and there be annexed to such gift a power of disposition of the remainder, the rule is different and the first taker takes only an estate for life, with the power annexed. That has been approved in Foos v. Scarf, 55 Md. 310; Russell v. Werntz,88 Md. 214, and other cases. It is clear from those decisions, and authorities cited in them, that there may be a valid devise to one for life with a power of disposition which will not affect the remainder over, unless the power is exercised as authorized, and as to any part of the estate upon which the power is not exercised the remainder is unaffected.

It is equally clear that the clause in the will last quoted does not of itself make these remainders contingent. The testator, having given his widow a power of disposition, naturally and properly spoke of his estate "remaining at the death of my said wife," but that would not convert what would otherwise have been a vested into a contingent remainder. The remainder may vest subject to the power, and the uncertainty as to whether the power will be exercised as to all or part of the estate does not make it a contingent remainder. As was well said in Ducker v. Burnham, 146 Ill. 10: "If the remainder is contingent because it may consist of what remains after the exercise of the power of sale and use conferred upon the life tenant, then, in case the life tenant should fail to sell any of the estate or to exhaust for her own use any of the principal thereof, the remainder would still be contingent because it would consist of what remains after paying off the charges created upon the property by the directions to pay the debts and the bequests. To hold that a remainder is contingent, because it cannot be known how much will be left until the debts and funeral expenses and other charges are paid, would make every remainder given by will a contingent one. But it is well settled that a devise to a person after the payment of debts and legacies is not contingent until such debts and legacies are paid, but confers an immediately vested estate. (Scofield v. Olcott, supra.) In such cases the remainder vests subject to the payment of debts and legacies and subject to the exercise of the power to use and sell, but liable to be divested as to so much of the estate as may be disposed of for the payment of debts and legacies, and by the execution of the power. The remainder is not made contingent by uncertainty as to the amount of the estate remaining undisposed of at the expiration of the life estate, but by uncertainty as to the persons who are to take." See alsoHeilman v. Heilman, 129 Ind. 59; Woodman v. Woodman,89 Me. 128; Burleigh v. Clough, 52 N.H. 267, and other cases cited in 24 Am. Eng. Ency. of Law, 389.

It is not necessary to go beyond our own decisions to find authorities on the subject, but the above quotation from Ducker v. Burnham, seems to be very apt. In Tayloe v. Mosher,supra, the testator, after making certain devises, bequests, and dispositions in favor of his wife and servants, devised his estate not otherwise specifically disposed of to trustees. He directed them to pay certain annuities, and then to invest "the clear income of my estate, if anything remain after the application annually or otherwise of the several sums of money hereinbefore charged thereon," and provided: "Upon the death of my son William, I will and desire that a distribution of my estate be made among all my grandchildren, towit: The children of my late son James Mosher, and the children of my aforesaid son William, provided any child he shall leave. All my said grandchildren to take per capita." The Court said: "It is doing no violence to this language or to any rule of law to hold that the children of James, who were inesse at the date of the will and of the testator's death, took vested interests, liable to be divested pro tanto for the purpose of letting in for a share any child that William, who then had none, might, by possibility, have and leave surviving him. The fact that an estate is liable to be divested in wholeor in part upon a contingency, does not make it a contingentestate." See also Dulany v. Middleton, 72 Md. 67, for a similar decision. It would seem, then, to be clear that the reference to the estate "remaining at the death of my said wife" did not make the remainder contingent.

But it is argued, and was so held by the learned Judge below, that the rest of this clause shows that the interests left to the children were contingent — that their right to participate in the distribution of his estate was contingent upon their surviving the testator's wife. But we cannot see how that clause indicates an intention on the part of the testator to create contingent remainders. The wife might in her lifetime have given one child more than she gave another, and that child might have survived her mother, while the other who received very little might have died, without issue, before her mother. It would seem to be more in accordance with the intention of the testator, and more natural for him, to vest the remainder in his children at his death. We have seen what confidence he had in his wife's judgment and sense of justice, and he was willing for her to decide what was necessary to be expended for the support of herself and children, and for their education or advancement in life. He did not direct that any charge should be made against them for sums thus advanced in excess of what was given others, and, even if the remainder be treated as contingent, those thus favored might survive their mother and receive a share of the remaining property. The equality of distribution does not in any way depend upon whether the remainders were contingent or vested. It is a familiar but important rule that the law favors the early vesting of estates, and it is likewise a well-recognized rule of construction that in doubtful cases the interest should be deemed to be vested in the first instance, rather than contingent, unless the instrument under consideration does not admit of such construction. It cannot be doubted that Mr. Shriver did not intend to die intestate as to any part of his estate — he prefaced his will with the statement "subject to the payment of my debts and funeral expenses I dispose of all my estate in manner and form following." Yet it was quite possible, although not probable, that all of the children by his second wife might have died without leaving issue before his wife died, and in that event there would have been an intestacy as to the remainder, if it must be regarded as contingent. The children provided for during the lifetime of his wife — "our children," that is those of his second wife and himself — were the same who were referred to in the clause under consideration — "my children by my said wife." Mrs. Reese was one of those children and left two children who would admittedly have been entitled to their mother's share if they had survived their grandmother. The testator did not leave the remainder to such of his children as survived his wife, or to such children and grandchildren (children of a deceased child) as survived her. He did make provision in that clause for the share and interest of a deceased child who had died leaving a child or children, but made none as to the share of a deceased child who died without leaving issue. The provision that "the child or children of a deceased child shall stand in its or their parent's place and stead and receive and have the share and interest its and their parent would have been entitled to if living" is not of controlling effect on this question by reason of the use of the words "receive and have." That was speaking of the period of distribution, and whether vested or contingent, the remaindermen were not entitled to "receive and have" their shares until that time arrived. The trustee was to receive, have and hold the estate until then, excepting such part as she previously disposed of under the other provisions of the will. Without further discussion of this clause it is sufficient to say that we do not find anything in it which necessarily indicates an intention on the part of the testator to create contingent remainders, and it will be well to now see what this Court has said about the effect of similar or analogous provisions in other wills.

In Meyer v. Eisler, 29 Md. 28, the testator after making certain bequests and legacies, gave all the rest of his estate to his wife and another in trust, to hold the same with the surplus or unappropriated revenue or income arising from the same, etc. He then authorized them to receive all rents, issues, interest and profits arising or growing out of the property, and from the amounts so received to pay insurance, taxes, and repairs, and out of the residue to pay his wife for her use and benefit one-third part, and directed the balance of the income to be invested in Baltimore City stock to be held in trust with the other property, until the end of twenty years after his death, or until his youngest child should arrive at the age of twenty years, and then the whole, including principal and interest, to be divided and paid over as follows: To his wife one-third part "and the other two-third parts to all my children, share and share alike * * *; and in the event of the death of either of my said children, leaving lawful issue, such issue to have and receive the share or proportion that the deceased would have been entitled to if living." He then provided for a similar distribution of the third left to his wife in case she "shall be dead at the time of such division." Elizabeth, one of the children, after the testator's death, married John Rose, and subsequently died before the time had arrived for a division of the estate, intestate and without issue. The widow also died before that time. This Court held that the children took a vested interest in the property devised to them, and that John Rose, as husband of Elizabeth, was entitled under the statute then in force to a life estate in her share of the realty, and absolutely to her share of the personalty. That case is strikingly similar to the one under consideration, and has been fully approved inTayloe v. Mosher, supra; Small v. Small, 90 Md. 568, andDaughters v. Lynch, 93 Md. 305, and other cases.

In Cox v. Handy, 78 Md. 108, the testator left certain real and personal property to his wife for life, and his will contained this clause: "It is my will that after the death of my wife, Mary Ann Handy, all the property devised to her for life * * * shall be sold if necessary for equal partition, or if the same can be accomplished without a sale, shall be divided amongst my children, share and share alike, the child or children of any deceased child to take the portion to which the parent, if living, would have been entitled." This Court held, "that a share of the property vested in each of the children of Wm. W. Handy, who survived him, but if any such child should leave children at his death, his share was divested in favor of his children; and that it was not divested by the death of the child in the lifetime of the tenant for life without leaving children," and in the opinion delivered after a motion for reargument it was said "A share of the property vested in each of the children who were living at the time of his death, and if any child died before the period of distribution, leaving children, they were substituted in his place; his share however was not divested if he left no children, but it went to his representatives." That case has been recently approved in Hoover v. Smith, 96 Md. 393, and In reRogers' Trust Estate, 97 Md. 674.

The cases we have cited would seem to conclusively show that these remainders were vested and not contingent. This opinion has already reached such length as to make it undesirable to attempt to discuss in detail the authorities relied on by the appellees — such as Demill v. Reid, 71 Md. 175; Larmour v. Rich, Ib. 369; Small v. Small, 90 Md. 550. In the latter JUDGE FOWLER referred to Larmour v. Rich, and said: "The distinction is clearly drawn between that class of cases where the estate or interest vests at the death of a testator, because of an absence of any expressed intention that it vest later, and those where the testator by his will fixes a more distant period for the vesting." It is sufficient to say that in our opinion the testator did not by his will express or indicate an intention that the remainder of his estate should not vest until after his wife's death. In the very recent case of Ridgely v. Ridgely,100 Md. 230, many of the cases affecting this question are cited.Engel v. Geiger, 65 Md. 539; Small v. Small, andLarmour v. Rich, are there included in the class of cases where gifts were made for life and then over to survivors — in which cases the period of survivorship is generally referred to the period of distribution and not the death of the testator. There is no reference to survivorship in this will. InDaughters v. Lynch, supra, we repeated what had been said inTayloe v. Mosher, that, "estates will be held to be vested wherever it can fairly be done without doing violence to the language of the will, and to make them contingent there must be plain expressions to that effect, or such intent must be so plainly inferrible from the terms used as to leave no room for construction." We are therefore of the opinion that the Court erred in rejecting the claims of Margaret A. Landon and Clymer Whyte, administrator, for the shares claimed by them respectively — the one being for this interest in the real property, and the other for that in the personalty distributed.

2. This brings us to the consideration of the appeal of Margaret L. Roberts. Having held that the children of Mr. and Mrs. Shriver took vested estates, it will not be necessary to determine whether a deed of trust such as that made by Mr. and Mrs. Roberts to Messrs. Reindollar and Roberts, trustees, would include a contingent remainder. The appellant contends that the deed of trust did not pass the interest of Mrs. Roberts for several reasons which we will briefly refer to.

(a) It is claimed for her that it does not contain a description of the real estate sufficient to identify it with reasonable certainty, as provided in sec. 9 of Art. 21 of the Code. The description in the deed of trust is "all and singular the real and personal estate, wheresoever situate, * * * and all other property of every nature, kind and description and wheresoever situate (except so much thereof as is exempt from execution) of us the said" William and Margaret. It is difficult to understand how it would be possible to identify property intended to be conveyed more thoroughly than is done by that description. The intention manifested on the face of the deed was to convey and assign all of their property of everynature, kind and description. If they had undertaken to specify it, some might have been omitted and to show on the face of the deed that they intended to make an assignment of all property, it would have been necessary to have added some such clause as the one that was inserted. This Court decided in Maughlin v.Tyler, 47 Md. 545, and other cases, that a deed of trust for the benefit of creditors, creating preferences and exacting releases, is void unless it appears on its face to convey all the property of the debtor. It is true this deed does not create preferences or exact releases, but if the position of the appellant be correct as to the effect of this statute, it would be difficult to ever comply with the requirements of the law as announced in Maughlin v. Tyler. If a grantor intends to convey part of his property, of course he must describe it specifically, but if he intends to convey all of it and uses such language as is in this deed, who could be misled or in doubt as to what he conveyed? The object of sec. 9 is to require sufficient notice to the public and certainty as to what is conveyed. As well might it be required of a testator to specify his property in detail in a residuary clause in his will as to require a debtor making an assignment for the benefit of his creditors to do so. This statute has never been construed to require a schedule or list of the grantor's property to be set out in such a deed, and so far as we are aware it is the universal custom throughout the State to use terms similar to those in this deed, when it is intended to make a general assignment of all the debtor's property. In Carey's Forms efPrecedents, p. 371, a very similar description of property is given for such a deed of trust and there have been many cases in this Court where such descriptions were given, and never questioned. The case of Farquharson v. Eichelberger,15 Md. 63, is conclusive of the question. It is said by the appellant that as it was decided prior to the Act of 1856, ch. 154, sec. 24, which is now the section of the Code above mentioned, the effect of the statute was to change that decision. But that was "An Act to simplify and abridge the rules and forms of conveyances," and if such a description was valid before the rules and forms were simplified, surely it is now. In our opinion the statute does not in any wise invalidate this instrument.

(b) It is further contended on behalf of Mrs. Roberts that the deed of trust only conveyed the joint estates of her husband and herself — that she united in the deed simply to convey her potential right of dower. We find nothing in the deed that sustains that contention. It recites that they are "indebted unto sundry persons and corporations in several sums of money, and being unable to pay the same in full have proposed and agreed toassign all our property * * * in trust for the benefit of our creditors, as hereinafter mentioned." It then assigns the property as we have stated, and after giving the trustees authority to convert it into money and providing for costs, etc., directs them to apply the residue of said moneys in payment of the several debts due to the creditors aforesaid of us, the said William Jesse Roberts and Margaret L. Roberts, his wife,pari passu, and without any preference or priority of payment" and after the payment of debts, costs, expenses and commissions, "then in trust to apply the surplus (if any), unto the said William Jesse Roberts and Margaret L. Roberts," etc. It seems clear to us, therefore, that Mr. and Mrs. Roberts not only conveyed and assigned any property owned by them jointly, but all they owned individually. Whether or not she owed any individual debts which are entitled to be paid we have no means of knowing, and we do not intend to determine how the money realized from her father's estate is to be distributed by the trustees. That can be disposed of in the proceeding in which they make distribution.

(c) After having determined that the interests of the children of Mr. Shriver under his will were vested remainders, we do not deem it necessary to discuss at length the question as to whether Mrs. Roberts' interest passed by the deed of trust as we think it did. A vested remainder can be devised, mortgaged or conveyed. It also is liable to execution by a judgment creditor. Armiger v. Reitz, 91 Md. 334. We are of the opinion, therefore, that Mrs. Roberts' interest should be distributed to the trustees named in the deed of trust, and it can then be determined what creditors are entitled to it. As the Court below so decided, although on a different ground, as to Mrs. Roberts' interest, that part of the decretal order will be affirmed, but as we do not agree with the Court as to the interest that would have gone to Carrie Reese, and is now claimed by Margaret A. Landon and Clymer Whyte, administrator of Augustus Shriver Reese, and of William Reigart Reese, the portion of the order appealed from by them will be reversed. Of course we do not mean to disturb the portions of the decretal order not appealed from.

Decretal order affirmed in part and reversed in part — the costs in No. 18 (office docket) to be paid by the appellant in that case, including one-half of the cost of transmitting and printing the record, and the costs in No. 19 (office docket) to be paid out of the estate of Augustus Shriver, including the other half of cost of transmitting and printing the record (one-half by the trustees and the other by the receiver) — and cause remanded for further proceedings in accordance with this opinion.

(Decided November 16th, 1905.)