This appeal brings before us for construction the will of the late Peter B. Small of Washington County in this State.
The particular paragraph on which the present controversy hinges is as follows: "I hereby give, devise and bequeath to my sons, Albert Small, Peter B. Small and Harry D. Small * * * all and every, my estates and property, personal and mixed, c., * * * in trust to take and hold the same, and to control and manage in their discretion all and every part thereof and to sell and dispose of the same and to reinvest the proceeds thereof for the sole use and maintenance, after the payment of my debts, of my wife, Sarah B. Small, for and during her life * * * * and after the death of my said wife, to divide and distribute the same * * * equally among my children, Albert Small, Charles A. Small, Mary A. Small, Peter B. Small and Harry D. Small, or the survivors of them, and the heirs of any of them who may meanwhile have died,
the children of any one of them taking under this devise the parent's portion." * * * * * The testator left surviving him a widow, Sarah B. Small, and five children named in his will. The widow died in March 1899, and three of the children, Albert, Charles A, and Harry D. all predeceased her. She left surviving her only two children, namely, Mary A. and Peter B. Albert Small died intestate leaving surviving him two children. Charles Small died intestate and unmarried and Harry D. Small
died unmarried but testate. All the facts necessary to raise the question presented by this appeal have been either admitted or are contained in the agreed statement of facts, but it will not be necessary further to rehearse them, except to say that Albert Small conveyed and released to his co-trustees, all his interest in his and their father's estate to secure the payment of a large indebtedness to that estate, for the benefit of the heirs at law and devisees of his father other than himself, and that Harry D. Small by his will devised and bequeathed all his estate to his sister, Mary A. Small. The bill was filed by the administratorscum testamento annexo of Peter B. Small, Sr., the testator. Their contention is that the assignment of Albert as well as the will of Harry D. is effective to convey their respective interests in their father's estate under his will, upon the theory that the respective shares devised and bequeathed by their father's will vested upon the death of the testator, while the contention of the defendants who are the children of Albert Small is that under a proper construction of the will the respective shares of Albert and Harry never vested in them for the reason that they both died before the death of their mother the life-tenant. The question, therefore, and the only one we have to consider, is, when did the estate or interest devised and bequeathed by the will of Peter B. Small vest in his children? If such interest vested upon his death, then Albert had such a vested estate as passed under his deed, and Harry had such a vested estate as passed by his will to his sister Mary B. Small, and the result would be that the estate of the testator, Peter B. Small, Sr., now in the hands of the plaintiffs, would be divided between the two surviving children Mary A. and Peter B. Small, Jr., and the children of Albert Small — the latter, however, taking the share of their father, subject to their father's liabilities, and Mary A. taking Harry D.'s share under his will in addition to her own share as a child of the testator. But if the other view be correct, namely, that by the true construction of the will the estate devised to
the children was contingent upon their surviving to the period of distribution, that is to say, the death of the life-tenant, the same parties would share in the distribution of the estate in equal proportions. The one-fifth shares which would have gone respectively to Charles and Harry if they had survived the life-tenant, or to their respective children if they had left any surviving her, go into and form part of the estate or common fund to be divided, and the children of Albert take his share free from his liabilities. The Court below passed a pro forma decree adopting the latter construction and thereby held that the devises and bequests to the five children of the testator were contingent upon their surviving the death of the life-tenant, which is made the period of distribution. We have thus fully stated the contentions of the respective parties and the facts upon which they depend, and we will proceed to consider the law applicable to them.
But before discussing the question involved, in the light of adjudicated cases, which, of course, when compared to the language of the testator used in his will are of only secondary importance in discovering his true intention, let us examine the provisions of the will itself. As we have already seen, the testator devised to trustees the whole of his residuary estate "to take and hold," "to control and manage in their discretion," and "to sell and reinvest the proceeds thereof for the sole use and maintenance of" his wife during her life. So long, therefore, as she should live his whole estate was to remain in the hands of the trustees for the sole purpose of maintaining her, and in order the better to promote that object he gave to his trustees such powers as necessarily vested in them the legal estate until the period of distribution should arrive and have been completed.Long v. Long, 62 Md. 65, and cases there cited; 2 Jarman onWills, p 1138, 1155; Ware v. Richardson, 3 Md. 505. Having thus provided for his wife during her life, he declares that his estate upon her death shall be divided and distributed equally among his
children, naming them, and the heirs of any of them who may meanwhile have died, the children of any one of them taking the parent's portion. He thus provides for two methods of distribution, one to be applicable to the contingency of all his children living to the time of distribution, and the other which is applicable to the contingency which really happened, that is to say, the death of some of his children before the period of distribution. It is with the method applicable to the latter contingency alone that we are interested. How was it, therefore, according to the testator's directions to be made? He says to his trustees: "You are to divide and distribute my estate equally among those of my children who survive my wife and the heirs of any of them who may meanwhile have died, the children of any one of them taking * * * the parent's portion." It seems to us that the plain meaning and intention of the testator to be drawn from his language is that his surviving children, and the children of his deceased children, shall share equally in the distribution of his estate — the only condition being that the grand-children, if any, should take per stirpes and not per capita — or, in other words, as contended by the defendants, the children of Albert Small, the children of deceased children stand in the place of and are to be taken as substituted for their respective parents. The only safe and practicable method to effect this, as we have said, plain intention, is to postpone the period of vesting to the time of distribution, and to hold that the estates vest in the original and substituted legatees at the same time. Otherwise, as illustrated in this case, some of the substituted legatees, so far from getting, as the testator declares they shall get "the parent's portion" they would get a small part of it, and if the liabilities of the parent had been equal to his portion, they would take nothing. This result certainly could not have been contemplated by the testator — otherwise he would not have been so careful to designate the persons who were to take in the event of the death of any of his children — for if
the estate vested in his children upon his death, they could have sold and conveyed it or disposed of it by will, and if they had done neither, their respective shares would have gone, as provided by the laws of descent or distribution, and such a provision as we find in the will before us would have been altogether unnecessary and inapplicable. But, again, the testator expressly directs his trustees after the death of his wife "to divide and distribute" his estate "making all such sales as may be required." That is to say in addition to the power of sale,c., given to the trustees to be exercised during the life of his wife, power is also given them to make all such sales after the death of his wife, as may be required to effect the distribution provided by his will. Such power, it seems to us, is clearly inconsistent with the construction giving the children a vested interest before the death of the life-tenant, their mother. As we have said the powers of management, sale and investment clearly given to the trustees to exercise during the life of the wife show, beyond question, that the legal title was, during that period, in them in order that they might effectually perform the duties imposed on them by the testator, and we think it equally clear that it continued so vested in them for the purpose required by the distribution. But it is evident if there was an equitable or beneficial interest vested in the children under the will, the estate might have been disposed of long before the period of distribution, and the power of sale given would have been nugatory. It appears also to us that the words "may meanwhile have died" necessarily refer and can only refer to the time which elapsed between the death of the testator and the death of his wife. The most cursory reading of the will makes this apparent. And to the same point of time is to be referred the words "survivors of them," for it is evident from the whole context that the survivors who are to participate in the distribution are and can only be those who survive the life-tenant, because it is only then, that is, after her death, that the distribution can be made.
In order, therefore, to obey the express wish of the testator "after the death" of his wife to divide and distribute his estate between his children "and the survivors of them" — the latter words must mean those who survive his wife.
We think, however, that the conclusion we have reached by an examination of the will itself is also fully justified by the principles which have been adopted by this Court in a number of adjudicated cases. In the case of Engel et al. v. State, c.,65 Md. 544, where as here the question was to what period do the words "may have died" refer; "As a general rule" said ALVEY, former Chief Judge of this Court, "it is certainly true that in the case of an immediate gift, with a bequest over in the event of the death of the first or preceding legatee, the event of death is referable to the lifetime of the testator. But it is explicitly laid down as text-law that this construction is only made ex necessitate rei, from the absence of any other period to which the words denoting the event of death can be referred." But as was held in that case, if there is a bequest to take effect in possession after a life-estate, as in the case before us, the words may be considered as extending to the event of the legatee dying in the interval between the testator's death and the period of distribution. Again quoting from the language of CHIEF JUDGE ALVEY, which is strikingly apposite to the present case: "It is unmistakably clear that the testator intended to substitute the child or children of the legatee who might die, in the place of the parent; and we are of the opinion that the words in question ("may have died") do confine the happening of the death of the legatee to the life-time of the testator; and as the daughter survived her father, but died in the life-time of the widow * * * before distribution made, her child became substituted legatee under the will." In Straus v. Rost,67 Md. 465, the same rule was again adopted and enforced as applicable to a provision like this, the Court saying, MILLER, J., delivering the opinion of the Court. "The case is clearly covered by the reasoning and decision in Engel v. State,
which was
decided after full consideration and by a very full Court." And finally in Larmour v. Rich, 71 Md. 369, this rule is applied, explained and enforced by the present Chief Justice, and the distinction is clearly drawn between that class of cases where the estate or interest vests at the death of the 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. Among the class of cases first mentioned are cited Meyer v. Eisler, 29 Md. 28; Tayloe v.Mosher, 29 Md. 451 and Crisp, Trustee, v. Crisp,61 Md. 149, all of which were relied on by the plaintiffs. And among the latter class are cited Engel v. State, use of Geiger,65 Md. 544, and some other cases relied on by the defendants to support their contention.
We conclude, therefore, that it is clear both from the face of the will, as well as from the authority of adjudicated cases in this State, that the legacies to the children of the testator did not vest until the death of the life-tenant, the period of distribution, and that, therefore, the children of Albert Small took his share free from any of his liabilities.
And for the reasons given, and upon the authorities already cited, it must also follow that if Harry D. Small had no vested interest in the legacy, because he died during the life of the life-tenant, it also follows that Mary A. Small takes no part of it under his will, and it forms a part of the fund to be distributed.
The pro forma decree which divides the estate of P.B. Small equally between his surviving children and the children of Albert Small — the latter taking the share of their father — must be affirmed.
Decree affirmed. Costs above and below to be paid out of theestate of P.B. Small.
(Decided January 11th 1900).