Bentz v. Maryland Bible Society

Fowler, J., delivered the opinion of the Court. This appeal brings before us for construction the will of the late Elizabeth Henderson, of Baltimore City. She devised and bequeathed all the rest and residue of her estate as follows: “All the rest, residue and remainder of my estate and property of every kind, nature and description whatsoever, whether in possession at the time of my death or in expectancy, remainder or reversion, I give, devise and bequeath to the Safe Deposit and Trust Company of Baltimore City in trust, to hold the same for ten years after my death, safely and profitably invested, and to pay the income, as it is received, in equal shares to John Henderson Bentz and Richard L. R. Bentz, grandsons of my sister Caroline Jane Bentz, and at the expiration of said ten years to pay over the whole of the said rest, residue and remainder of my estate and property, in equal shares to the said John Henderson Bentz and Richard L. R. Bentz absolutely, free and discharged of all trusts, to them and to their children, after their death, the children to take among them equally the share of their father.” “ And it is further my will that if the said John Henderson Bentz and Richard L. R. Bentz, or either or them, shall die leaving no child or descendant them or him surviving, then in that event, whatever of my estate thus given shall remain in their or his possession at the time of so dying, shall go to and become the property of the Maryland Bible Society, and I hereby give, devise and bequeath the same to the said society to be used in its work of distributing the Holy Scriptures.” The controversy here arises out of the several contentions as to the meaning and proper construction of the foregoing clauses. The trustee, the Safe Deposit and Trust Company of Baltimore City, filed the bill to obtain the aid of the — 113 — Court in making distribution in accordance with the will of the testatrix as properly construed. Ten years have elapsed since the death of the testatrix, and both of the legatees first named in the residuary clause, John Henderson Bentz and Richard L. R. Bentz are still living, each of them having several infant children, who, as well as the Maryland Bible Society, are parties to this proceeding. It was held by the Circuit Court that Richard and John each take only a life-estate in half of the residuary estate, the share of each to go at his death to his children then living, per stirpes, and in default of such to the Bible Society. The trustee was directed to invest the net funds of the estate and pay the income therefrom to Richard and John for life, and the principal after their respective deaths to the above mentioned legatees in remainder. From this decree the two grand-nephews of the testatrix have appealed, their contention being that they are entitled to the whole residuary estate absolutely, while the appellees contend that the appellants take only a life-estate and that the remainder goes as directed by the decree. It appears to us upon a careful reading and consideration of the language of the testatrix that her intention was to give to John and Richard, her grand-nephews, each one-half of her residuary estate absolutely, if they should be alive at the expiration of ten years after her death. We will briefly state the grouuds of this conclusion. The most cursory reading of the residuary clause shows that the trustee at the end of ten years after the death of testatrix, was to pay over the whole trust estate absolutely, free and discharged of all trusts. Now, to whom was this payment directed to be made? To John and Richard “absolutely, free and discharged of all trusts to them and to their children after their death, the children to take among them equally the share of their father.” We think the meaning of the testatrix is quite apparent, when we remember that the payment was to be made whether to the fathers or their children by the same trustee at the end of ten years — 114 — after her death. And this being so we cannot suppose that in the same breath the testatrix intended to provide for the continuance of the trust during the joint lives of the fathers. The trust was to end at the time named by the testatrix, and if John and Richard should be living at that time, they are to take absolutely. But if either of them should die before the period for distribution, that is, within ten years after the death of the testatrix, then the share of the one so dying is to be paid absolutely to his children. In view of the language limiting the duration of the trust, it seems to us impossible to discover from the residuary clause any other intention. And although we do not consider it necessary to cite authorities to sustain this conclusion, based as it is upon the particular will before us, yet there are some general rules which seem to apply here with more than usual force. Thus one of these is mentioned in Theobald on Wills, 452, where it is said, “If the fund is vested in trustees who are directed to distribute it at a certain time, so that the trusts then determine, and the legatees who are to take upon the death of the prior legatees without issue are contemplated as taking through the medium of the same trustees there is prima facie reason for restricting the death without issue to death without issue before the period of distribution.” This rule is also quoted in 29 Am. & Engl. Encyl. of Law, 506, with a number of authorities to sustain it, to which, many have been added on the brief of the appellant. But we need not extend this opinion by a discussion of them, for the same general principle has been approved by this Court in the cases of Hammett v. Hammett, 43 Md. 307, and Fairfax et al. v. Brown, 60 Md. 61. In the first case just mentioned the testator gave half his property to his widow during her widowhood and further provided if she should marry again, as follows : “ I devise the same to my two children equally, and should one of them die the property to go to the survivor.” The widow married and the two sons survived her marriage, and it was held that the estate vested in the children on the marriage — 115 — of their mother, and that the words “ should one of them die,” should be construed to mean “ should one of them die before the marriage of their mother.” (Decided June 23rd, 1897.) But when we consider the remaining paragraph of the residuary clause there would seem to be but little room for doubt as to the intention of the testatrix to give her grandnephews an absolute estate with full power of disposition. She declares that if John and Richard or either of them shall die leaving no child or descendant surviving then whatever of her residuary estate should remain in their or either of their hands, should go to the Bbile Society. In the first place it is apparent from this language that the testatrix intended that they should have the estate in their possession, and should also have the power of disposition over the whole of it; for it was only what should remain that was to go to the Bible Society. Having thus full power of disposition and having also full possession, and as we have said there being no express language creating a life-estate they take the residuary estate absolutely. And to this effect is Benesch v. Clark, &c., 49 Md. 497. See also Foos v. Scarf, 55 Md. 310; Mines v. Gambrill, 71 Md. 34; Roberts v. Lewis, 153 U. S. 367. Inasmuch as the decree appealed from continues the trust during the lives of John and Richard, while the testatrix, as we construe her will, intended it should end in ten years from her death, and inasmuch as said decree gives to the appellants only a life-estate while our conclusion is that they take an absolute estate, we must reverse it. Decree reversed and cause remanded. Costs to be paid by the trustee out of the trust finds in its hands.