McIntosh v. Rieman , 160 Md. 368 ( 1931 )

The bill of complaint in this case was filed by the trustees named in the will of Joseph H. Rieman for a construction of the will. All parties in interest, in esse, were made defendants. The question is: Did the trust created by the testator for his five children terminate as to the share of Perlee Lowe Rieman, one of the children, upon his death intestate and without issue; or does it continue until the death of the last surviving child? The trial court held that the trust ceased as to the share of Perlee at his death, and that the corpus of the share should be immediately distributed to the surviving children of the testator. This appeal is from a decree directing such distribution; and is taken in behalf of the infant defendants. We concur in the conclusion of the trial court.

In the seventh item of his will the testator devised and bequeathed the rest and residue of his estate to trustees upon the following trusts:

"A. In trust to suffer and permit my beloved wife to occupy my ``Country Seat' and my City residence as a home, for herself and our children, in summer and in winter, so long as she may live or remain my widow, (when I say my wife may occupy my ``Country Seat' I intend that the garden, gardener's house, lawns, stable and other things, immediately connected therewith, as now used by us, shall go with and be considered as parts of her summer residence) free of rent and free of taxes, insurance, and expenses for repairs. And in further trust as to one-third part of the net annual income of and from my ``trust estate' (in addition to the use and occupancy of my City residence and ``Country Seat') for the sole and separate use and benefit of my said wife, for and during the term of her natural life, to be paid over half yearly, accounting the same from my death, and I declare, and say that the provisions I herein make for her, shall be in lieu of dower in my real estate, and her distributive share in my personal property. And in further trust as to the rest or balance of my ``trust estate' (including therein and therewith my ``City Residence' and my ``Country Seat' after the death or marriage of my said wife, whichever shall first occur; as also including therewith the net annual income from my ``trust estate' given her, after her death, but not before) for the use and benefit of my five children now living, to wit, Perlee Lowe Rieman, Mary Isabel Thom, Carlton Alexander Rieman, Charles Elet Rieman and Charlotte Lowe Rieman, and any others, that may hereafter be borne to me, share and share alike, and to the survivors and survivor of them, and upon the death of the survivor, then for the use and benefit of and unto such persons or person, as may at that time, be my right heirs, share and share alike, per stirpes and not per capita.

"B. Provided, however, that if any or every of my children, shall die, leaving issue of his or her body, living at the time of his or her death, then and in that event, shall the part or share of him or her so dying, of or in my ``trust estate' not pass or belong to my surviving children, child or my right heirs, as above provided for, but shall go to and become the absolute property of such issue, share and share alike, per stirpes and not per capita."

The question here presented arises under paragraph A of Item 7. It is contended, in effect, by appellants, that the words, "to the survivors and survivor of them," referring to the income from the trust estate, created an equitable joint tenancy in the undivided income among the five children. That argument would have much force if the single paragraph were to be considered. But when the whole will is read together it becomes apparent that testator did not contemplate that the trust property should be administered as a whole, and that the income therefrom should be divided into five parts. By item 9 he directs his trustees, as soon as practicable after administration in the orphans' court:

"* * * to make an equal partition of my personal estate (not including my real or leasehold property) among the cestui que trusts into as many parts as there are persons to take under this my will, and when such partition shall have been made, to pay, transfer and deliver unto each of my sons, Carlton Alexander, and Charles Elet, if they be living, then, one-half of each of their shares, in said personal estate so partitioned and as they may severally arrive at the age of thirty years, the other half thereof; and as they shall severally receive their respective shares thereof, my trustees shall charge them severally therewith, and when so charged, shall be taken into consideration in making the final division of the rest and residue of my estate hereunder; and my said trustees shall hold the other shares of my said personal estate, so partitioned for the cestui que trusts, under my will."

And in item 11 he directs:

"* * * That all sums of money that may at the time of my death, stand charged to any of my children on my books, shall be taken and considered as an advancement to said child or children, and shall with the interest thereon at the rate of three per centum per annum from the time of my death be deducted from his or her share of my ``trust estate' at the final division of the same among the cestui que trust, which division shall not, however, take place, nor shall there be any partition made of my ``trust estate' except as hereinbefore provided amongst the cestui que trust, before the year nineteen hundred (A.D. 1900). It being my will that all of my trust property shall be kept together as one estate, until the expiration of the present century, except, however, in so far as it may be necessary to do otherwise in the execution of the trusts, I have hereby conferred upon my trustees.

"And I hereby authorize and empower my trustees in the year nineteen hundred to make a just and fair division and partition of my ``trust estate' amongst my cestui que trust. Should, however, a full division and partition of my entire ``trust estate' be at that time, in the opinion of my trustees, impracticable or unwise by reason of certain parts thereof or properties belonging thereto being of greater value than proper for any one child to take, then shall my trustees have the right and the power is hereby given to them to keep the same as trust property or to sell and convey such properties for the purposes of partition, and to divide the proceeds amongst the cestui que trust. If, however, the time of making the division and partition as I have authorized, should in the judgment of those authorized to make the partition, be an inopportune season or time for selling the property, they may, if they shall see proper, postpone the further partition and shall keep these properties in trust, until a more favorable opportunity for selling shall present itself, so that my trustees shall own and hold my trust estate after the partition shall have been made as before; except in so far as the same may have been affected by division into parts instead of whole."

It seems obvious from the foregoing provisions that it was the intention of the testator that his entire trust estate (other than the personal property, which was to be divided at once), as soon as practicable after the year 1900, should be divided into five equal parts and one part held for each of his children, thus destroying the unity of interest without which a joint tenancy cannot exist. There is no gift over of the entire trust property.

Even where the gift in remainder is in terms of the whole fund, if a tenancy in common is more consistent with the general context of the will, it should be so construed; and there should not be a postponement of the distribution of every part until the death of the surviving tenant for life, unless an intention so to do is clearly indicated. Jarman on Wills, (5th Am. Ed.), vol. 3, p. 16. Especially is this so in view of section 13 of article 50 of the Code: "No deed, devise or other instrument of writing shall be construed to create an estate in joint tenancy, unless in such deed, devise or other instrument of writing it is expressly provided that the property thereby conveyed is to be held in joint tenancy." See also Henderson v. Henderson,64 Md. 185, 1 A. 72; Preston v. Clabaugh, 90 Md. 707, 45 A. 887.

If we had any doubt as to the proper construction of the will, it would be removed by paragraph B of item 7, in which there is an interpretation by the testator himself of what he meant in paragraph A of said item by "survivors and survivor of them, and upon the death of the survivor." He says, in effect, those words mean "surviving children," with reference to the death of each of the first three to die; and "surviving child," with reference to the death of the fourth.

"In ascertaining the intention of a testator, courts must consider all the circumstances properly before them, and must not place such construction upon the provisions of the will as will do injustice to any of the parties, or would be contrary to what a reasonable man would likely intend, unless the terms of the will be so clear as to admit of no doubt as to what the testator did intend." These words from the opinion of the court, written by Judge Boyd, in Wethered v. SafeDeposit Co., 79 Md. 153, 28 A. 812, 813, are appropriate to the facts of the present case as they are disclosed by the record, and as they were known or could reasonably have been foreseen by the testator. It is significant that appellants and appellees agree that the decision of the chancellor was in accord with the best interests of all parties.

Decree affirmed, costs to be paid out of the corpus to bedistributed.