40 A.2d 231 | Md. | 1944
Alfred J. Ulman, of Baltimore City, died testate on October 13, 1906, survived by his widow, Clementine H. Ulman; a son, Jacob Ulman, and four daughters, Bertha U. Walter, Valerie H. Arnold, Alberta Ulman Sabit, and Nanine H. Sabit.
By his will executed on February 26, 1891, he devised and bequeathed his estate to his wife for life, she to receive four-ninths of the income and each child to receive one-ninth. The remainder after his wife's death was devised *26 and bequeathed to his five children equally with a provision that the shares of any of his children who might be under thirty-five years of age and unmarried be held in trust.
By the first and only codicil to the will executed on April 12, 1904, the disposition of his estate after his widow's death was revoked, and under the first, second, and third items of the codicil, after his wife's death, a one-fifth share was left absolutely to his daughter, Bertha Ulman Walter; a one-fifth share absolutely to his daughter, Valerie H. Arnold, and a one-fifth share absolutely to his son, Jacob A. Ulman. Clementine H. Ulman, the widow, died on February 8, 1927, and three-fifths of the estate was distributed absolutely to these three children who are now deceased and survived by issue. Two-fifths of the estate was held in trust under the terms of the codicil for the daughters, Alberta U. Sabit and Nanine U. Sabit.
The Safe Deposit Trust Company of Baltimore, succeeding trustee under the will of the testator, being unable to determine the provisions of the fourth clause of the codicil, filed a bill of complaint in the Circuit Court for Baltimore City against all parties thought to have a possible interest in the estate, asking the Court to assume general jurisdiction of the trust and to construe the fourth clause of the codicil of the will. The parties were brought in either by summons, acceptance of service, order of publication, answers filed by counsel, or by service of process on the Alien Property Custodian at Washington as some of the interested parties are enemy aliens.
For a proper interpretation of the fourth clause of the codicil, it is necessary to quote it in full as follows:
"In trust to invest and to hold another fifth part and to collect the income therefrom arising and to pay the net amount thereof to my daughter, Alberta Ulman Sabit, wife of Aziz Sabit, for and during the term of her natural life, and from and afterher death to divide the corpus of her fifth part into as manyshares as she may leave children living at the time of her death,and to hold and *27 to invest one each of such shares for each of her said childrenthen living, in trust, as follows: In trust to collect the income from the share of each of her children, who may be living at the time of my death and to apply the net amount thereof, or so much thereof as the said trustees or the survivor may deem proper, to its maintenance, education and support until it shall have attained the age of twenty-one years and then to pay over to it any previously accrued income that may not have been so applied, and thereafter to collect and pay over to it the net income of its share for and during the term of its natural life, and from and after its death to convey transfer and pay over the corpus of its share to the then living child, or children, and the then living descendants of any then deceased child, of such child, per stirpes and not per capita, share and share alike. And in trust to collect the income from the share of each of her children, who may be born after my death and living at the time of her death and to apply the net amount thereof, or so much thereof as the said trustees or the survivor may think proper to its maintenance, education, and support until it shall have attained the age of twenty-one years, and then to convey, transfer and pay over the corpus of its share, with any undisposed of income to such child absolutely.
"Should my said daughter, Alberta, die without leaving a child or children or descendants, then living, then I give, devise and bequeath her said one-fifth part to her sisters and brother then living and to the then living descendants of any of her then deceased sisters or brother per stirpes and not per capita share and share alike — the share thereof of my daughter, Nanine, or her child, children or descendants to be held by the said trustees upon the same trusts and subject to the same limitations as the fifth part hereinafter devised and bequeathed in trust for her. Should any child of said daughter, Alberta, living at the time of my death die without leaving any child, or children or descendants living at the time of its death, I give, devise and bequeath the share of such child so dying to the said trustees and the survivor and the heirs, *28 executors, administrators and assigns of the survivor, in trust for such child's surviving sisters and brothers, and the then living descendants of any then deceased brother or sister, upon the same trusts and subject to the same limitations as the share by this paragraph originally devised and bequeathed to them respectively, and should any such child die without leaving any child, children or descendants then living, then I give, devise and bequeath its share to my then surviving child or children, and the then living descendants of any of my then deceased children, per stirpes and not per capita share and share alike. Should any of the children of my daughter, Alberta, born after my death die before attaining the age of twenty-one years, without leaving a child or descendant, I give, devise and bequeath its share to the said trustees and the survivor and the heirs, executors, administrators and assigns of the survivor in trust for its surviving brothers and sisters and the then living descendants of any then deceased brother or sister per stirpes and not per capita, share and share alike. And should any such child of my said daughter Alberta, born after my death die before attaining the age of twenty-one years, without leaving surviving any brothers or sisters or descendants of a brother or sister, then I give, devise and bequeath its share to my then surviving child or children and the then living descendants of any of my then deceased children per stirpes and not per capita, share and share alike." (Italics supplied here.)
Testimony was taken in the case. It is shown that at the time of the execution of the original will in 1891, the testator's daughters, Alberta and Nanine, were unmarried and under thirty-five years of age. The daughter, Nanine, between the time of the execution of the will and that of the codicil, married Faid Sabit, an Egyptian. She died on May 24, 1940, without issue. In accordance with the provision of the fifth item of the codicil, as to which there is no dispute, the corpus of the share held in trust for Nanine's benefit was divided and distributed. A one-fourth part became a part of the corpus of the share *29 held in trust for her sister, Alberta Ulman Sabit, under the fourth clause of the codicil of the will aforesaid.
It also develops that between the dates of the execution of the original will and the codicil, the daughter, Alberta, married Aziz Sabit, an Egyptian. By that marriage she had three children: A daughter, Aziza, who married a German national, Max von Scheidt; a son, Halil Sabit, and a daughter, Alya Sabit. Halil and Aziza were born before the death of the testator. The date of birth of Alya is not shown. She predeceased her mother, dying without issue. Aziza von Scheidt, born about 1894, died about the year 1931, leaving surviving her two children, infants now under the age of twenty-one years, Halil Aziz von Scheidt, now about seventeen years of age, and Omar von Scheidt, now about fifteen years of age, German nationals, born after the death of the testator Halil Sabit, born about 1904, is now living, married with no children, and claims to be the sole beneficiary of the trust created for his mother, Alberta Ulman Sabit.
At the hearing held by the Chancellor, the claim of Halil Sabit to an interest for life in all of the trust created for Alberta Ulman Sabit was presented by his counsel, and the conflicting claim of Halil Aziz von Scheidt and Omar von Scheidt to one-half the trust created for Alberta Ulman Sabit was presented by counsel appointed for them by the Court. The Chancellor decreed in effect that the trustee divide the residuary estate held in trust for Alberta Ulman Sabit into two equal parts, one part to be held in trust for Halil Sabit during his life under the provisions of the codicil and that the other of said two equal parts be held in trust by the plaintiff to transfer and convey the same, together with all net income therefrom, to the children of Aziza Sabit von Scheidt, deceased, daughter of Alberta Ulman Sabit, namely, the infant defendants, Halil Aziza von Scheidt and Omar von Scheidt, their heirs, executors, administrators and assigns or to such person or persons as may be legally entitled to receive the same under the Trading with the Enemy Act,
Alberta Ulman Sabit, at the time of her death, was therefore survived by one son, Halil Sabit, and two grandsons, Halil Aziz von Scheidt and Omar von Scheidt, great grandchildren of the testator. The whole question in this case turns upon the provision in the codicil in which, after devising and bequeathing an equitable life estate to his daughter, Alberta Ulman Sabit, the testator directs the trustee: "And from and after her death to divide the corpus of her fifth part into as many shares as she may leave children living at the time of her death." (Italics supplied here.) It is apparent and admitted by appellees that as Alberta left only one child living at the time of her death, viz., Halil Sabit, he is entitled to the whole for life (he having been born before the testator's death), and the two infant children of his sister, Aziza Sabit von Scheidt, who predeceased her mother, Alberta, would take nothing, if these words are literally construed. Appellees, however, contend that the words "living at the time of her death" mean, by what is known as stirpital construction, "living either personally or by representation through issue."
The doctrine of stirpital survivorship has been adopted in a number of cases by the English Courts and as far as we have been able to determine and from the excellent briefs submitted by the appellant and appellees, by only one Court in this country, that being in Kentucky in the case of Birney v. Richardson, 1837, 5 Dana 424,
It is further urged that because there is in the fourth clause a later provision reading: "Should my said daughter, Alberta, die without leaving a child or children or descendants, then living, then I give, devise and bequeath her said one-fifth part to her sisters and brother then living and to the then living descendants of any of her then deceased sisters or brother per stirpes and not per capita share and share alike * * *" there is a limitation over in default of issue, and therefore that a gift to issue is implied. Thus where property is settled upon A (Alberta) for life, with a gift over in case A (Alberta) should die without issue, there is an implied gift to A's (Alberta's) issue, if any. 3 Restatement, Law of Property, Sec. 272. We fail to see how this rule can be invoked here to imply a gift to issue, as in the case now before us the testator *33
has made a disposition in the event that Alberta dies with issue. The case of R.S. Construction Co. v. Nihiser,
Some stress has been laid upon the provisions in the fourth clause of the codicil following the provision under dispute heretofore set out, where the testator provides: "In trust to collect the income from the share of each of her children who may be living at the time of my death * * *" and later, "* * * each of her children, who may be born after my death and living at the time of her death." (Italics supplied here.) However, the words "at the time of my death" were evidently used to avoid a violation of the Rule against Perpetuities as stated in Gray onPerpetuities, 4th Ed., p. 191, for with respect to the share of each of her children "living at the time of my death," the trust is to continue throughout the life of the child and then the corpus of its share is distributed to the then living descendants of any then deceased child. With respect *34
to the share of each of her children "born after my death," the trust is to continue only until that child attains the age of twenty-one years, the limit of time permitted under the Rule against Perpetuities. Perkins et al. v. Iglehart,
In the case of Turner v. Withers,
A similar ruling was made in the case of Burden v. Burden,
In the case of Stahl v. Emery,
In the case of Billingsley v. Bradley,
In the case of Phillips v. Heilengenstadt,
From the authorities above set forth, it appears clear that the words here must be given their literal construction unless the will shows a contrary intention on the part of the testator. The sole purpose, of course, in construing a will is to determine the intention of the testator. This has been stated so many times that as said in Estate of Childs v. Hoagland,
The testator, when he executed the original will in 1891, provided for exact equality among his children with the exception that the share of his unmarried daughters should be held in trust until they married or became thirty-five years of age. At that time the two daughters, Alberta and Nanine, were unmarried and under the age of thirty-five years. After the execution of the will, Alberta and Nanine married aliens. After this event in 1904, he executed a codicil in which he left the share of his other children, Bertha, Valerie, and Jacob, to them absolutely after their mother's death, but provided that the share of his daughters, Alberta and Nanine, who had married aliens, be held in trust without giving them the privilege of disposing of any of the corpus of their share. Under the will, upon marriage, Alberta and Nanine would have received their share outright. It therefore appears that on account of the marriage of these two daughters to the husbands they married, the testator desired their money held in trust. As three of his children received their shares outright, there was certainly no intention for equality among testator's grandchildren and therefore, of course, less indication of intention of equality among his great grandchildren. His intent, therefore, seems to have been that his two daughters should be amply provided for during their lives, they having married alien husbands who might dissipate their inheritance. The words used are clear and plain. *39 It is reasonable, of course, to conclude that he was also interested in seeing that his grandchildren, the children of Alberta, some of whom at least were born at the time of the execution of the codicil, were provided for during their lifetime.
We cannot conclude from the words of the will and codicil and all other circumstances of the case that the testator intended that his great grandchildren, the appellees in this case, who were not born at the time of his death, should take half of their grandmother's share over Halil Sabit, the son of Alberta. To construe this will because of humanitarian considerations to provide for these two great grandchildren who might be expected to share in the estate would not be a construction of the will but the making of a new will for the testator. Stahl v. Emery,
supra,
Decree reversed and case remanded for the passage of a decreeto conform with the opinion herein expressed. Costs to be paidfrom the corpus of the trust created for Alberta Ulman Sabit. *40