Mercer v. Hopkins

Fowler, J., delivered the opinion of the Court. This appeal brings before us for construction several clauses of the will of the late Johns Hopkins of Baltimore City. Neither the validity of the will nor of any part of it is assailed. But it is alleged that doubts have been suggested as to its true construction in so far as it relates to that portion of the testator’s estate devised to the trustees in trust for James Monro.e Mercer, and the children of Samuel Hopkins, a deceased brother of the testator, and their issue. The testator devised to the trustees valuable property in the city of Baltimore in the following terms: “ In trust nevertheless for the children . of my deceased brother, Samuel Hopkins,, and for the benefit of James Monroe Mercer, the husband of my niece, Ella W. Mercer, in manner and form following, that is to say, In trust to collect the rents, issues and profits thereof, and to apply the same in the first place to the payment — 307 — of all charges and taxes upon or repairs of the said property, or any of it, and afterwards to pay semi-annually three-eighths parts of the clear rents,” etc., “ thereof to my niece, Ella W. Mercer ... for the period of her natural life, and after the death of the said lilla W. Mercer, to apply so much of the three-eighths parts of the clear rents,” etc., “ as may be necessary to the education and reasonable maintenance of any child or children of the said Ella W. Mercer, who may be living at her death until the expiration of the period of twenty years after the death of the said Ella W. Mercer, at which period of time three-eighths parts of the property so devised in trust, for the children of my said deceased brother Samuel Hopkins, and for James Monroe Mercer, together with any surplus of income or property proportionably arising therefrom, shall vest absolutely in the child or children of the said Ella W. Mercer as tenants in common — if there be more than one child the issue - of deceased children taking by substitution as tenants in common the respective shares which their respective parents would have taken.” A similar provision, except as to amount, is made by the testator for each of the three sons and their children; and for James M. Mercer, the husband of Ella W. Mercer, who was a child of Samuel Hopkins, a like provision was made with the additional exception that from the death of said Mercer the trustees are to hold the share of the estate devised for his own use until the expiration of twenty years after the death of his wife, when it is to vest as provided in respect to the other shares. In a later part of the will provision is thus made for the contingency of any child or children of Samuel Hopkins dying without leaving any child or children and for other contingencies. “ If any of the children of my deceased brother, Samuel Hopkins . . . should die without leaving any child, or children, or if any child, or children, of any one of the children of my said deceased brother . . . shall depart this life after the death of his, her, or their parent (such parent being a child of my said deceased — 308 — brother . . .), and before the expiration of the period of twenty years after the death of his, her, or their parent (such parent being as aforesaid, a child of my said deceased brother . . .), then, and in such event, it is my will that the share, part or interest of the child,'or children, of my said deceased brother, ... so dying, and of the grandchild, or grandchildren, of my said . . . brother . . . so dying, shall be held by my said trustees and by the survivors of them, in trust, as to the realty, for the heirs at law of such deceased child, or grandchild,' or children, or grandchildren of my said brother . . . and in trust, as to the personalty, for such person, or persons, as under the laws of this State would be entitled to be the distributees of the personal estate of such deceased child, or grandchild, children, or grandchildren, subject, however, in all respects, to the other limitations appointed by this, my last will and testament, in reference to the shares of the children of my said deceased brother, ... in so far as such limitations are applicable.” The three sons of Samuel Hopkins died leaving no issue. Arundel died in the lifetime of the testator, March 17th, 1873; John J. on July 22nd,. 1875; and Mahlon on the 26th of August, 1879. Samuel Hopkins’ only daughter, Ella W. Mercer, died April 12th, 1879, and her husband, James M. Mercer, June 22nd, 1878. Four children survived them, namely, George D., Samuel E., and Mary M., who is the wife of Charles H. Harding, and Margaret W., who is the wife of Salo Shapiro. George D. and Samuel H. Mercer both died without leaving issue, the former May 15th, 1887, and the latter January 27th, 1897, but the two daughters, Mrs. Shapiro and Mrs. Harding, are both living, and are the only surviving grandchildren of Samuel Hopkins. They with their husbands were defendants below and are appellees in this Court. Mrs. Shapiro has two children — both infants, who are also defendants in this suit. At the time of filing the bill of complaint twenty years had elapsed since the death of Arundel and John J. Hopkins, two of the children of Samuel. — 309 — It must be also stated that Mahlon and John J. Hopkins, and George D. and Samuel H. Mercer each left a will; Samuel H. Mercer also made a deed of trust. The bill asks that the Court shall also declare what, if any effect, these wills and the deed of trust had upon the property in question or any part of it. The Court below, after hearing the testimony and arguments of counsel, adopted by its decree the construction of the clauses we are to consider, set forth in the bill, and so ably supported in their argument before this Court by counsel representing the appellees. From this decree four separate appeals have been taken — that of Mrs. William T. Howard, the widow of John J. Flop-kins; Mrs. Jennie M. Mercer, the widow of George D. Mercer and executrix under his will; the Johns Hopkins Hospital claiming as residuary devisee and legatee, and Mrs. Henrietta Mercer, the widow of Samuel M. Mercer and as devisee under his will. While it might be interesting and perhaps instructive to consider the several, and to a large extent, conflicting views or theories of the appellants, perhaps both brevity and clearness will be promoted if we proceed at once to the consideration of the controlling questions presented by these appeals. In the first place, then, it would seem to be too clear for controversy that in the several clauses of his will providing for the children of his brother, Samuel Flop-kins, the testator intended to devise and did devise to each of such children an equitable life estate, during the continuance of which the legal title was vested in the trustees whose duty it was to pay the net income of his or her share to each of the beneficiaries. Some of the appellants earnestly contend that under the Rule in Shelley’s case this life estate becomes an absolute estate, and some of them deny this proposition with quite as much earnestness. We may as well dispose of this question here. It is well settled that in order to coalesce and form one absolute estate under this rule, the two estates must be of the same quality — both must be equitable or both legal. Ware v. Richardson, — 310 — 3 Md. 505; Handy v. McKim, 64 Md. 569. In order to make this rule apply to the devises under consideration, it would be necessary to cast aside the express language used by the testator by which he declared that the legal estate should be held by the trustees in trust for the life tenant, and from the expiration of the equitable life tenancy in trust for the period of twenty years, when the estate was to vest absolutely in the children or descendants of such life tenant, if any, and in default of any such issue living at that time, then in the persons who should answer to the description of heirs at law of such life tenant. Here we have the equitable life estate, and a subsequent fee simple or absolute estate. Under such circumstances it is settled the Rule in Shelley’s case cannot be invoked. Assuming, then, that there is an equitable life estate given to Samuel Hopkins’ children, what is the next succeeding estate created by the will? The will provides that after the death of the equitable life tenant, the trustee shall hold the estate in trust to apply so much -of the income ... as may be necessary to the education and maintenance ... of any child or children of ■such life tenant who may be living at the death of such life tenant until the expiration of twenty years after the •death of such tenant. At the end of this period of twenty years after the death of the life tenant, the trust as to his -or her share of the trust estate ceases, and the share, together with any surplus of income or property proportionably arising therefrom, vests absolutely in the child •or children of such life tenant, as tenants in common. .'So far there would seem to be little room to raise a 'question as to the meaning of the language of the will apart from its application to the share of Arundel who •died during the life of the testator, and apart from what is called in the bill the elliptical and obscure language by which the testator subjected or attempted to subject the •devises made in case any of Samuel Hopkins’ children ■should die without leaving any child or children, to the other limitations which he had made in case any of them should die leaving a child or children, in so far as the — 311 — limitations made in respect to the latter conting-ency are applicable to the former. In the clause just referred to applying to the case of a child of Samuel Hopkins dying without child or children, it is provided that if any of the above mentioned children of Samuel Hopkins should die without leaving child or children, or if any child or children of the said children of Samuel Hopkins should die after the death of his, her or their parents, and before the expiration of twenty years after the death of such parent, that then and in such event the share of such descendant shall be held by the trustees in trust as to the realty for the heirs at law of such descendant, and as to the personalty for his distributees. The learned counsel who so ably presented the appeal of Mrs. Howard conceded that up to this point the will was free from ambiguity, and they contended, as do some of the other appellants, that the heirs and distributees who are to take in default of child or grandchild surviving within the twenty year period, are to take the estate absólutely, upon such default, without waiting for the expiration of such twenty year period. To this view we cannot assent. For, however obscure the so-called elliptical clause may be, it is evident that the testator intended to make the estate devised to the heirs and distributees subject to the same limitations which are provided for the estates devised to the children and grandchildren of his brother Samuel, so far as they are applicable. The two marked limitations appointed in reference to the latter are first, the twenty year period, and second, the absolute vesting of the estate at the end of that period. How, then, can we, in the face of this express direction of the testator, say that he intended the “ heirs ” and “ distributees ” to take an absolute estate during and before the end of the twenty years? The provision as to the time of vesting is as applicable in the one case as in the other — and it follows therefore that the estate given to the heirs and distributees must vest, not during the twenty year period, but at the end thereof. It also necessarily follows that only those can take who at that time answer to the description of the — 312 — class that is then to take. But this conclusion is sustained by authority, as well as by the necessary construction of the clause itself. In the case of Demill v. Reed, 71 Md. 187, it was held that where an estate is given upon a contingency to persons described as a class, only those can take who answer to the description at the time when the estate is to come into possession. “ It seems to us,” said Miller, J., delivering the opinion in the case just cited, “ to be clear law, as well as good sense, that in a case like this, where there is an ultimate limitation upon a contingency to a class of persons plainly described and there are persons answering to the description in esse when the contingency happens, they alone can take.” It may be that the persons who enjoy the income under the terms of the will, as we have construed it, have’ been and will be a fluctuating body. These changes and fluctuations have been pointed out in the exhaustive brief by counsel for the hospital, but these results and others which have been suggested with much ingenuity by the same counsel are not sufficient to convince us that the testator did not fully mean what he' said, namely, that the two limitations, the twenty year period and the absolute vesting at the end thereof, should apply to heirs and distributees. Nor does the fact that under the construction we have adopted some of the persons who would enjoy the income might be too far advanced in life to be “ educated and reasonably maintained ” in the ordinary meaning of those terms. If the income were not needed for these or either of these purposes in the case of any heir or distributee who in the ordinary meaning of the word is already “ educated,” or if maintenance was not necessary, it would accumulate in the hands of the trustee until the time when the trust estate is to vest, that is at the end of the twenty year period. In other words the direction to devote income to education and maintenance would not be applicable and need not, therefore, be applied in the case supposed. For an application of the rule which determines who takes the absolute estate in cases like this, see Buck v. Lantz, 49 Md. 439; Barnitz v. Casey, 7 Cranch 456. — 313 — 2. It was contended on the part of Marie Henrietta Mercer that her husband Samuel H. Mercer took an absolute estate under his deed of trust to Lavinia Hopkins by the operation of the Rule in Shelley’s' case. But we think, for the same reason and upon the same authority (Ware v. Richardson, supra), that we held the rule did not apply to the estates devised by the will of Johns Hopkins to the children of his brother, Samuel Hopkins, it is not applicable here; the two estates are not of the same quality, one being equitable and the other legal. It will appear from an examination of the case of Brown v. Renshaw, 57 Md. 67, relied on by the appellant, that it is distinguishable from the case of Ware v. Richardson, , and from the case now before us. Without prolonging this opinion by a discussion of the fruitful subject of the Rule in Shelley’s case, we are of opinion that the deed of trust under consideration from Mercer to Lavinia Hopkins, which empowered the trustee to collect and receive the income of the trust estate and to pay it over to the life tenant (Mercer) with re-^ mainder to his right heirs, contains every essential feature of the deed construed in Ware v. Richardson, and must therefore be governed by the opinion in that case. This being so, the first taker here, as in the deed in Ware v. Richardson, took an equitable life estate, and the heirs a legal estate — thus making it impossible to apply the rule. Nor can we adopt the view that Samuel Mercer took under this deed by way of resulting trust — for, as we have said under its provisions, an estate in fee vested in his right heirs. 3. It will be remembered that wills were made by John J. Hopkins and Mahlon Hopkins. But it is evident that, as they took only equitable life estates, no interest in the trust estate passed by these wills. Lavinia Hopkins claimed only as devisee under them, and, therefore, her will can have no effect upon said trust estates under Johns Hopkins’ will. Nor did the will of George D. Mercer affect it in any way, because he died in 1887 before the expiration of twenty years after the death of any child of Samuel Hopkins, before which — 314 — period we have said he could not have had a vested .or devisable estate. 4. It only remains to discuss briefly the claim of the Johns Hopkins Hospital, based upon the contention that the devise of the share of the trust estate created by the. will of Johns Hopkins to Arundel, one of the children of Samuel Hopkins failed to take effect or lapsed because the devisee, Arundel, died without child or children before the death of the testator. There is a general provision in the will that in case any devise or legacy shall fail to take effect, the property therein mentioned shall go to the Johns Hopkins Hospital, but the testator also made provision for the case of any devisee or legatee who should dispute the validity of his will, declaring that “ all dispositions ... in favor of such person or persons shall cease and be void,” and that such forfeited devises shall go to the hospital for its corporate uses. There is also a general residuary clause in the first codicil in favor of the hospital and the university. It is upon the “ fail to take effect clause,” applied to the fact of Arundel’s death without child or children during the lifetime of the testator that the hospital bases its claim to one-eighth of the trust estate. It is to be observed that Arundel’s estate was only a life estate,' and, therefore, so far as his interest is concerned, it matters not whether he died before or after the death of the testator. If, as is the fact, he died before the testator, his life estate never commenced, the will taking effect only from and after the testator’s death. Therefore, inasmuch as Arundel took nothing under the will, neither the hospital nor the university can take any thing through or from him. Nor do we understand that such is the claim; but the contention is that because Arundel died during the life of the testator without child, etc., the devise over contained in the will, providing for the case of any child of Samuel Hopkins so dying does not apply to Arundel. It must be conceded, of course, that the provision of the Code, Art. 93, sec. 313, relating to lapsed legacies, has no applica — 315 — tion to this question, because Arundel’s estate being for life only, necessarily ended at his death, and cannot, therefore, be transferred by operation of the statute. But we think it is equally clear that the true construction of this provision of the will relating to a child of Samuel Hopkins dying without child, etc., requires us to decide this question against the view so earnestly and forcibly presented on the part of the two corporations founded by the testator. Indeed, it must follow, if the conclusion we have reached in the former part of this opinion be correct, that the claims of these corporations cannot be maintained, for we have said that the share of a child of Samuel Hopkins dying without child, etc., must, according to the true construction of the will, go to the heirs and distributees of such child. It was urged, however, that after Arundel’s death, the testator living, it was impossible, properly, to speak of Arundel as one of the children of Samuel who might die without leaving a child, because that contingency had already happened before the will began to speak, and that therefore the language of the testator has no application to the share devised to Arundel and then over. But while it is true Arundel was dead when the will took effect, he was living and was one of the children of Samuel who might die without child or children when the will was written and executed. In other words, the will speaks as of the time and must be construed according to the situation of the parties and the circumstances existing when it was written, although it does not take effect until the death of the testator. Now when the will was executed Arundel was living, and, of course, the provision under consideration then applied, and was intended by the testator to apply to him as to all the other children of Samuel. However, while Arundel took nothing under the will, and left no child or children who could take, why should not his heirs and distributees take under the clause providing’ for them in default of Arundel dying without issue? The estate devised to them in remainder, as we have construed the will, was separate from and independent of the equitable — 316 — life estate devised to Arundel, and therefore the failure of the latter to take effect cannot destroy the devise of the former. There was no time when the whole estate was not vested either in the testator, or in the trustees and the cestuis que trustent. After Arundel’s death, the testator until his own death held both the legal and equitable titles. After his death the legal estate vested in the trustees, and the equitable title in the heirs and distributees of Arundel. So> that there does not appear to be any occasion for the application either of the general law of lapsed legacies and devises or of the special provisions of the will for the case of a devise, etc., failing to take effect. The only effect the death of Arundel can have upon the estates in remainder devised and bequeathed to his heirs and distributees is to hasten the time when they are, under the true construction of the will, entitled to the possession of and enjoy the estate itself. In a word, we have here an illustration of what is called the acceleration of estates in remainder. I Jarman on Wills 536; Jull v. Jacobs, L. R. 3 Ch. Div. 709; Emory v. Young, 2 M. & K. 780; Randall v. Randall, 85 Md. 430; 20 Am. & Eng. Ency. 938. But again, it seems to us that this contention ignores the necessary result and effect of the second codicil, which was executed .nearly a year after the death of Arundel. What was, the effect of this codicil on the devises and legacies to the children of his brother Samuel? We must, as was urged by counsel for the, hospital, assume that the testator knew his nephew Arundel was dead when the second codicil was executed. If so, the testator deliberately, and doubtless with this knowledge of his nephew’s, death, advisedly confirmed his will. He then and there substantially declared: “ I know that my nephew Arundel died without issue, but I confirm my will. It is true neither he nor any child of his can take anything under my will, but his heirs and distributees will get what I intended for him and his children, and after all, those who will get Arundel’s share are the very persons I have been so careful to provide for, namely the children and grandchildren of my brother Samuel or their heirs and distributees.” — 317 — (Decided June 30th, 1898.) What we have said disposes of the controlling questions presented by these four appeals now before us. It follows, without further discussion of the many questions presented and numerous authorities cited, that the decree appealed from must be affirmed, and that the several estates and interest are vested in the parties to this suit as particularly set forth in the several provisions of that decree. The cause will be remanded in order that accounts may be stated and proceedings had in accordance with the views expressed in this opinion. Decree, affirmed and cause remanded, costs in this Court and in the Court below to be paid by the trustees out of the trust estate.