Shotts v. Poe, 47 Md. 513

Shotts v. Poe

47 Md. 513 | Md. | 1878

Alvey, J.,

delivered the opinion of the Court.

Lewis Shotts, by his will, dated 30th of June, 1869, devised and bequeathed to his son, John Lewis Shotts, all his property, real, personal and mixed, absolutely; and appointed his son sole executor. Afterwards, on the 12th of June, 1874, the testator, by an instrument in the form of a conveyance, or declaration of trust, set forth that, in consideration of the natural love and affection which he bore to the children of John Lewis Shotts, he did thereby appoint the said John Lewis Shotts trustee “ for the following property for their use, and until they arrive to the age of eighteen years ; fifteen hundred dollars in Baltimore City Stock, and one note of Christian Wheisample, for five thousand dollars, to take effect at my death; and when each child arrives at age, the said property to go to my son, John Lewis Shotts.”

The testator died in August, 1875, and both instruments were admitted to probate in the Orphans’ Court, as *518testamentary papers. John Lewis Shotts, the son and devisee, had, at the date of the declaration of trust recited, and at the death of his father, only two children, both infants of tender age, and both of whom still survive ; and, so far as the record discloses, they are the only two children of their father. John Lewis Shotts renounced -the executorship, and John P. Poe was appointed administrator, with the will annexed; and he files the present bill, suggesting doubts and difficulties in the construction of the instrument of the 12th of June, 1874, and asks for a construction of the two papers, and direction as to the manner of distribution of the estate.

John Lewis Shotts, in his answer, admits the facts alleged in the bill, but insists that the trust declared in favor of his children, 'by the instrument of the 12th of June, 1874, is void for uncertainty; but he prays that the true meaning and construction of the instrument may be declared, and his rights in the premises determined.

1. As to the supposed uncertainty or inconsistency in the instrument, we can perceive none to affect the validity of the trúst declared. The trust for the benefit of the children must be taken as a qualification of, or an exception to, the preceding absolute bequest to the son of the testator. And as each child attains the age of eighteen years, his or her part of the fund will cease to be held in trust, and will fall into the general fund for the benefit of the son, John Lewis Shotts, the general legatee. The age of eighteen, being the limit of the trust, must be taken to be the age upon which the fund was designed to go absolutely to John Lewis Shotts, the son.

2. The only other question is, whether the term “ children,” used in the declaration of trust, includes children of the son that may be born after the death of the testator? And upon this question there can be no doubt whatever. If there be any question that may be regarded as incontrovertibly settled, in the _ construction of wills or testa*519mentary papers, it is, that an immediate gift to children, simpliciter, without additional description, means a gift to the children in existence at the death of the testator; provided there be children then in existence to take. In Powell on Devises, Vol. 2, p. 302, the rule, as deduced from all the cases, is stated thus : “ That an immediate gift to children, (i. e., immediate in point of enjoyment,) whether of a person living or dead; and whether it be to the children simply, or to all the children; and whether there be a gift over or not, comprehends the children living at the testator’s death, (if any,) and those o?dy; notwithstanding some of the early cases, which make the time of the making the will the period of ascertaining the objects.” To the same effect is the rule as stated by Redfield on Wills, pt. 2, p. 330 ; and in 1 Roper on Legacies, 48, 49 ; and the decided cases fully support the proposition thus laid down by the text writers. Viner vs. Francis, 2 Cox, 190 ; Radcliffe vs. Buckley, 10 Ves., 195 ; Davidson vs. Dallas, 14 Ves., 576; DeWitt vs. DeWitt, 11 Sim., 41; Mann vs. Thompson, Kay, 638. And in this State, the late Chancellor Johnson fully adopted and applied this rule of construction, as being perfectly well settled, in the case of Benson vs. Wright & Marfield, 4 Md. Ch. Dec., 278; and there is nothing in the case before us to exclude the application of the rule.

(Decided February 20th, 1878.)

The decree of the Court below being in accordance with this view of the subject, it follows that it should be affirmed.

Decree affirmed, and cause remanded.