Waters v. Waters

| Md. | Jan 27, 1866

Weisel, J.,

delivered the opinion of this Court.

The question in this case arises upon the will of Ereeborn Gr. Waters, and on that clause which disposes of the surplus income of his estates, during the life of his widow, viz : whether the share of an adult child in this surplus income, continues and is transmissible after his death, during the widow’s lifetime, or whether it ceases at such death.

The testator provided, by means of a trust, for the annual support of his widow during life, and also during the life of his widow, for the support of his daughter Martha and the support, maintenance and education of his minor children, out of the rents, dividends, income and profits of his estate, real and personal, which he devised to two of his sons, their heirs, &c., upon the trusts and for the uses and purposes limited in the will. As to any surplus of said income, rents and profits that might remain after the application of the necessary portion to the support of his wife, his daughter Martha and minor children, as he had provided, he devised as follows :

‘ ‘ In trust that the whole of said surplus be equally divided annually amongst all my children who may be of the age of twenty-one years, or who may be married,” with a further direction in regard to an annuity to his daughter Martha in a certain event, as set out in the will.

The will was made in June, 1857, and the testator died in July, 1858, leaving eight children ; all over twenty-one years of age at the time of the execution of the will, except two. One of these became of age before the death of the testator, the other afterwards. Four were married when the will was made.

In the summer of 1859, one of the sons, John Summer-field Waters, died, leaving a widow and several children.

In August, 1863, Andrew G. Waters, another son, and one of the trustees and executors, died, leaving a widow and four children ; the widow having been appointed his executrix by his will, and having qualified as such.

A considerable surplus income arose every year since the death of the testator, Freeborn G. Waters, for distribution. And a large surplus was in the hands of the surviving trustee for the year preceding the filing of the bill in this case in September, 1865.

These are the material allegations of the bill of complaint.

The suit is by the executrix of Andrew G. Waters, to prevent by injunction such a distribution of the surplus income in the hands of the trustee, as would exclude the estate of her husband from a participation in the fund.

It will be observed that the distribution by the will is an annual one ; words of futurity are used ; and the objects to take are children of the testator, of full age or married ; without any words limiting a share to the representatives or descendants of any child who might die during this course of annual distribution. It is this feature that produces the difficulty in the case. On the one hand it is contended that only those of the children take every year, who are at the time of the distribution in existence and answer the description in the will; whilst on the other it is insisted, as the true construction, that the interests in this portion of the income vested in the persons described, and were transmissible in the case of any one who might die during the lifetime of the widow.

The intention of the testator is of course the matter to be inquired into, and, as in all cases of doubt or difficulty, we must avail ourselves of settled rules of construction that are applicable and will aid in the examination.

The first and main inquiry is, whether the shares of the surplus income became vested in the children described at the time of the testator’s death, or.when they fell within the class indicated in the will. The subject of the bequests, it is true, is not a part of the integral estate— not the residue of an estate, after other bequests made. It is the surplus or residue of an annually accruing fund from rents and profits of the entire estate, in the hands of trustees collected by them, and held annually for distribution, after providing for the support of the widow and minor children and his daughter Martha, during the widow’s life. There can be no doubt that in the case of a residue of personalty, or in the case of an annuity during the life of another, the legacy would vest and survive to the personal representative in the event of the death of the legatee before the time of payment, unless a different intention was expressed or conveyed by the will. So if the fund were directed to accumulate and to be distributed and paid at a future day or upon a certain event, and the legatee should die before that time. The rules of construction favoring the vesting of estates, and to prevent intestacy in the case of residuary bequests, would apply in those cases according to all the authorities. And the Court cannot perceive why the same rules should not govern the construction in this case. The same reasons apply ; the same motive to do equal justice to all the objects of the testator’s bounty ; and no intention of the testator to the contrary is contravened by the application of the rules. The rule for favoring the vesting of estates is iaid down by Mr. Jarman in his excellent treatise on wills, in language so precise and yet so full, as clearly to embrace the bequests under consideration. It is this : “ The law is said to favor the vesting of estates, the effect of which principle seems to be, that property which is the subject of any disposition, whether testamentary or otherwise, will belong to the object of the gift, immediately on the instrument taking effect, or so soon afterwards as such object comes into existence or the terms thereof will permit." As, therefore, a will takes effect at the death of the testator, it follows that any devise or bequest in favor of a person in esse simply, (i. e. without any intimation of desire to suspend or postpone its operation,) confers an immediate vested interest.

If words of futurity are introduced into the gift, the question arises, whether the expressions are inserted for the purpose of protracting the period of vesting, or point merely to the deferred possession or enjoyment. 1 Jarm. on Wills, 726. See also, Gifford vs. Goldsey, 2 Vern., 35. Eales vs. Earl of Cardigan, 9 Sim., 384. Webb vs. Kelly, same, 469. Leeming vs. Sherratt, 2 Hare., 23.

This construction is in harmony with the other provisions of the will and the general intent of the testator as shown on its face. His declared purpose was that his estate, as it existed at the time of his decease should remain unimpaired during the life of his wife. This he devised in trust, directing the annual income, rents and profits from it should be first applied every year to the support of his wife and minor children, and his daughter Martha, during the life of his widow, with a provision for an equal annual distribution of the surplus among his adult or married children. The alternate provision for his daughter Martha of five hundred dollars per annum out of said rents and profits, in case she ceased to live with, her mother, and the direction that in the division of the surplus this allowance or annuity should be taken and computed as part of her portion of said surplus, manifest a clear intention that these bequests to the adult children should vest. She was one of that class, and the legacy of five hundred dollars per annum to her is clearly a vested legacy, and yet it constitutes a part of the surplus income to which she as one of the children of full age is entitled. If a part be vested, the whole is in that condition ; and if one takes a vested interest out of the surplus, the others of the same class taking equal shares out of the sarne fund and in the same clause, take vested interests likewise. At the death of the wife the estate, real and personal, is to be equally divided among all his children then living, and the children and descendants of any deceased child, they taking the share of the deceased parent. These and all the other provisions in the will, together with his knowledge of the condition and wants of his family, the near approach to full age of his only two minor children, the marriage of four of his children, the vicissitudes of life exposing their offspring to orphanage and dependence, if not to want, lead to the conclusion that the testator did .not intend that these bequests of the surplus income should be contingent, and dependent, as to any of the described legatees, upon his continuance in being during the life of the widow.

We are therefore of opinion that the children of Ereeborn G-. Waters, who were twenty-one years of age or married at the time of his death, took vested interests in their shares of the surplus income from his estates from that time; and that the shares of those who attained twenty-one years or married after his death, became vested at the happening of either of those events ; and that the share of Andrew G. Waters who has died, survives to his personal representatives.

(Decided January 27th, 1866.)

The order of the Court below refusing the injunction prayed for will he reversed, and the cause and original papers remanded with instructions to the Circuit Court of Baltimore City to grant an injunction in conformity with this opinion and decision.

Order reversed and cause remanded.