Hooper v. Smith

Page, J., delivered the opinion of the Court. The questions in this appeal arise upon the construction of the second clause of the will of the late W. E. Hooper. Mr. Hooper died in the year 1885, leaving children and eighteen granddaughters. Among the latter were Catherine B. Smith, Georgiana I. Smith and Mary H. Smith, children of his daughter, Mary E. Smith. Catharine died in January, 1880, aged about two years. Georgiana died in January, 1898, over twenty-one years of age. Mary is still living and under twenty years of age. The second clause of his will is as follows: “ 2nd. I give and bequeath unto my four sons, William J. Plooper, Theodore Hooper, James Edward Hooper and Alcaeus Hooper, and the survivors and survivor of them and the executors or administrators of the survivor, all other my stocks, whether city, State, national, bank, or of whatever kind or description such stocks shall be, of or to which I shall die possessed or entitled, upon trust for the sole and separate use and benefit, per capita for their natural lives only, of all my granddaughters living at the time of my decease, who shall reach the full age of twenty-one years, and of the surviving issue, if such there be, absolutely, of any one or more of my said granddaughters who shall die in my lifetime or subsequently, but under said age of twenty-one years, such issue, however, to take the share or shares only to which their parent, or respective parents, would have been entitled, had she or they survived me and attained to said age. Upon the decease of such my respective granddaughters, then in trust, as to the share in said stocks of each so dying, to the surviving [582] child or children, and surviving issue of any then deceased child or children of such my granddaughters so dying, absolutely, per stirpes. And in default of any such surviving child or issue then upon trust to and for the surviving- sister or sisters, and the surviving issue of any deceased sister or sisters of such granddaughter so dying, absolutely, per stirpes; and in default of any such surviving sister or issue of a deceased sister then upon trust for all my then surviving granddaughters, and surviving issue if any of my then deceased granddaughters absolutely; such granddaughter? taking equally, per capita, and such surviving issue of deceased ones representing their mothers and taking what would have fallen to them had they survived. “ And to the income accruing upon such stocks on the contingent or presumptive share or shares of such of my respective granddaughters as shall be under the aforesaid age of twenty-one years the whole or any part thereof may be appropriated by the trustees for her or their maintenance and education; and so much of said income as shall not be so applied shall be accumulated and added to the principal of the respective shares and disposed of ultimately in the same manner as the principal.” The purpose of the testator in this clause was to provide for his granddaughters by giving them the income of their respective shares, during life, and by securing the principal fund to their issue after their deaths. It cannot be successfully contended, we think, that he intended to give them an absolute estate in any part of the fund, except such as might devolve upon them under the operation of the limitations subsequently expressed in another part of the clause. The words of the testator are unmistakable — the trustees are to hold in trust for the separate use and benefit of the granddaughters, for “ their natural lives only.” But these words cannot apply to the “ surviving issue ” referred to in the first paragraph of the clause, because as will appear later on, the testator has employed such definite and clear terms as to them that such a construction is not possible. The [583] testator has declared that the trust was created for the sole use and benefit of his granddaughters living at the time of his death and of the surviving issue of “ any one or more ” of his “ said granddaughters ” who shall die in his lifetime or subsequently, and no one who does not come within the classes thus described can be entitled to a share of the funds. Therefore, granddaughters born since the death of the testator cannot take, either as first takers or by way of remainder. The, testator in the latter part of the clause, in referring to the shares of such of his granddaughters “ as shall be under the aforesaid age of twenty-one years,” calls them “ the contingent or presumptive shares ”; and he directs that the income on these shares “ may be appropriated by the trustees for her or their maintenance and education.” So much of the said income as shall not be so applied, is to be “ added to the principal of the respective shares and disposed of ultimately in the same manner as the principal.” Now, bearing in mind the words in the earlier part of the clause — “ for the sole and separate use and benefit per capita for their natural lives only, of all my granddaughters living at the time of my decease ” — it is clear that he intended that a granddaughter under age should be entitled while under the age of twenty one years only to have the income on her share appropriated to her maintenance and education; and that she should be entitled to receive the entire income on her share and on the accumulated income (that had not been applied to her support and education) only after she had passed that age. There is also an intent to be gathered from the clause that the trust should continue only during the life of the granddaughter. The first paragraph declares that the trust is for the benefit of granddaughters and “ surviving ” issue. But the latter are to take, “ absolutely,” and if that is so, the trustees would have no longer any active duty to discharge and the trust would cease. Hooper v. Feigner, 80 Md. 272. It is also apparent that the testator intended that the share of each granddaughter should devolve upon the [584] children or issue of' the taker of the life interest. It is provided that upon the decease of any one of his granddaughters her share shall , pass, absolutely, ist to her surviving child or children per stirpes, and the surviving issue of any then deceased; and if there be none, then 2nd to her sister or sisters and the surviving issue of any deceased sister of such granddaughter, per stirpes. The share is to be kept in the branch of the family to which the deceased granddaughter belonged, if at the period of her death any of those mentioned survive. If, however, there survive no child or children or issue thereof, no sister or sisters or issue thereof, then it devolves equally, per capita, absolutely upon all his then surviving granddaughters and the surviving issue of any of his then deceased granddaughters, such surviving issue of deceased granddaughters “ representing their mothers and taking what would have fallen to them had they survived.” Now let us apply these results of our examination of the clause to the existing facts, ist. It is clear that upon the death of Catharine, the one-eighteenth part held in trust for her, devolves upon her two sisters, Georgiana and Mary, “ absolutely ” and clear of the trust. 2nd. Georgiana at her death held, therefore, one-eighteenth part of the trust funds for life subject to the limitations of the will; also the one-half of Catharine’s share, or one thirty-sixth of the entire fund, absolutely and clear of the trust, and this is now vested in her administrator clear of the trust created by the will. 3rd. Mary, who now survives, is entitled to her'share of one-eighteenth part, which is subject to the trust; the one thirty-sixth part that came to her on the death of Catharine, and two thirty-sixths part on the death of Georgiana, and the two last items she holds absolutely free, clear and discharged of the trusts of the will. The accumulated income must be added to the principal and distributed in like manner. The trustees should therefore be required to pay over to the administrator of Georgiana the one thirty-sixth part of the trust funds with the accumulated funds, and [585] to the guardian of Mary three thirty-sixths part, with accumulated interest, and retain the one-eighteenth part with its proportions of accumulated interest, to be administered by them according to the provisions of the will, as herein stated. (Decided December 20th, 1898.) Inasmuch as the decree does not require this to be done, it must be reversed and the cause remanded for a new decree in accordance with the views herein expressed. Decree reversed and cause remanded, costs to be paid out of the fund.