Webb v. Webb , 92 Md. 101 ( 1900 )

This is an appeal from an order allowing a counsel fee out of the income from certain legacies held by the appellants in trust for the infant appellees. The reasonableness of the amount of the fee is admitted, but the appellants deny that they have any funds out of which to pay it, and thus raise for determination the main issue in the case which is, from what time do the legacies bear interest?

William P. Webb, the grandfather of the infant appellees, who are the children of his deceased son, George P. Webb, in his will gave to his two sons, William R. and Armstead M., all of his estate of every kind other than that described in the following clause, i.e., "excepting only the ten shares of the stock of the Lorraine Cemetery Company, of Baltimore City, and the ten lots in the said cemetery which were formerly the property of my deceased son, George Prescott Webb, and which became mine upon the death of my sister, Eliza Ann Webb, to whom they had been transferred, to my grandsons, or the survivors or survivor of them, the sons of my deceased son, George Prescott Webb, to whom, or to the survivors or survivor of them. I also desire my executors hereinafter named to give at such time or times as they may find convenient and — accordance with their best judgment not earlier, however, than they or either of them shall reach the age of twenty-one years, the sum of ten thousand dollars each." The two living sons, William R. and Armstead M., who are the appellants, were named as executors in the will.

The testator, by a codicil to his will, provided as follows: "Whereas, in said will, in the clauses succeeding the one beginning ``and excepting only, c.,'" there is an omission that renders said clauses ambiguous, and it is my purpose and intention by this codicil to correct said ambiguity and also to make certain other changes in my will aforesaid:

"Now, therefore, I will and bequeath as follows: That the ten (10) shares of the stock of the Lorraine Cemetery Company, of Baltimore City, and the ten (10) lots in the said cemetery, formerly the property of my deceased son, George Prescott Webb, which became mine on the death of my sister, Eliza Ann Webb, to whom they had been transferred, be given to my grandsons (or to the survivors or survivor of them), the sons of my deceased son, George Prescott Webb, at such time or time as my executors hereinbefore named may find convenient, and in accordance with their best judgment, but in no case before they or either of them shall have reached the age of twenty-one years; to whom (or to the survivors or survivor of them.)

"I also desire my executors to give, under the above limitations as to age and time or times, the sum of five thousand dollars ($5,000.00) each."

The testator's widow, Anna Eliza Webb, by her will made provision for the appellees as follows:

"After the payment of all my just debts and funeral expenses. * * *

"I give, devise and bequeath to each of my grandsons, the sons of my deceased son, George Prescott Webb, who may live to reach the age of twenty-one years, the sum of one thousand dollars; I give, devise, grant and bequeath all the residue of my estate, real, personal and mixed of every description and wherever situated to my two sons, the Reverend William Rollins Webb and Armstead Moore Webb, or the survivor of them, absolutely." She also made the appellants her executors.

Wm. P. Webb died on December 23, 1895, and his wife died on November 22, 1898. The wills of both were admitted to probate and the appellants qualified as executors of each will.

The equitable appellees were infants of tender years at the death of their father, George Prescott Webb, who left them entirely without means of support. They were taken to the residence of their aunt, the legal appellee, who is a seamstress, depending upon her own labor for her maintenance. The grandfather, Wm. P. Webb, paid to the aunt the weekly sum of five dollars as long as he lived for the board, or toward the support of the infant orphans. After his death, his wife continued to make the same weekly payment until she died, and after that the appellants made the weekly payment for account of the legacies until the institution of this suit.

The bill of complaint was filed by the appellees, who are still infants, by their aunt, who had been appointed their guardian, setting forth the facts already stated, and averring that the appellants had ample assets to pay the legacies of both wills in full. It prayed that the legacies under each will to the appellees might be treated as trust funds in the hands of the appellants, and that the Court would assume jurisdiction of the trusts and supervise their administration for the support and education of the appellees, and for general relief.

The appellants did not assume a hostile attitude to the proceeding nor object to the joinder of the two trusts in one case, which had been made for the purpose of economy. They answered the bill admitting most of its allegations of fact including the possession by them of assets sufficient to pay the legacies, and expressing their willingness to pass over the amount of the legacies from themselves as executors to themselves as testamentary trustees, and to give bond for the faithful performance of the trusts of the two wills pertaining to the respective legacies. They, however, in their answer contended that the appellees were not entitled to any interest on their legacies until after they reached twenty-one years of age, and that in case of the death of either of them before arriving at that age, his legacy would lapse into the estate of the testator.

After testimony had been taken establishing the facts of the case, an order of Court was passed by consent on June 23, 1899, describing the appellants as trustees, having in charge the legacies devised to the infant appellees and directing them to pay to the guardian of the appellees the monthly sum of $32.50, until the further order of the Court in the premises, and providing that such payments as well as the like payments theretofore made "be a charge and credit upon the respective legacies." The appellants then filed a duly approved bond for the faithful discharge of the trust reposed in them respecting the legacies to the appellees under the wills of their grandfather and grandmother, or by the order already passed or such orders or decrees as might be thereafter passed in the case. The Court did not by its order formally assume jurisdiction of the trusts of the wills in respect to the legacies to the appellees, or direct them to be thereafter executed under its supervision, but that was the practical result of the order, as it gave directions in reference to the performance of the trusts, and declared that the order should be operative only until the further order of the Court, thus plainly indicating a purpose to retain the bill for further action thereon. The appellants were not designated trustees in either of the wills, but the duties imposed upon them in reference to the custody of the legacies for an indefinite period were more appropriate to the office of trustee than that of executor, and they by their answer filed in this case, expressed their willingness to turn over the legacies from themselves as executors to themselves as trustees, and give bond in the latter capacity, which they have since done, and the order of Court of June 23, 1899, passed with their assent, treated and described them as trustees. They cannot now retrace their steps and elect to act as executors.State v. Cheston, 51 Md. 352.

About three months after the date of the order last referred to, the appellees filed a petition in the case asking for an accounting under the Court's direction of the moneys paid to them or for their account or benefit by the appellants since the deaths of the testator and testatrix. Upon this petition an order was passed referring the case to the auditor to state an account. After the case went to the auditor the counsel for the appellees filed a petition asking to be allowed a counsel fee for their professional services in the case. Annexed to this petition was the certificate of several reputable members of the bar, suggesting $250 as a fair and reasonable fee. An ex-parte order was passed by the Court, allowing the fee as prayed. The appellants then filed two successive petitions in which they prayed that the order referring the case to the auditor to state an account, and also the order allowing the counsel fee, might be vacated, because the order of June 23, 1899, was an adjudication of the matters at issue between the parties, and that the petitioners had no estate in their hands that was being administered under the direction of the Court, and that therefore the Court had no jurisdiction to pass the orders.

The parties were then heard in argument by the Court which passed the order appealed from, determining that the legacies to the appellees were in the hands of the appellants as trustees, and that the petitioning counsel were entitled to compensation for their professional services and fixing the fee at $250, the reasonableness of that amount not being objected to by counsel for the trustees, and directing it to be paid out of the income of the trust estate.

The order appealed from did not in terms pass upon the position asserted by the appellants, that the order of June 23, 1899, was a final adjudication of the matters at issue between the parties, but it is evident from the face of the order of June 23rd, that it was not intended to be final, as it was by its own terms to be operative only until the further order of the Court. The case is still open for the determination of the issues raised by the bill of complaint, which contained a distinct prayer that the Court would assume jurisdiction over the legacies as a trust fund and supervise and direct the administration of the trust. All questions arising incidentally to such administration may be heard and determined in this proceeding.

We think that the devise and legacies given to the equitable appellees by the will of their grandfather were vested, and that the direction as to the time of their payment related to the enjoyment and not to the vesting. This Court has in a long line of decisions announced and reiterated the doctrine that the law favors the early vesting of estates. Even in the case of devises and legacies in remainder, of which the devisee or legatee does not come into possession until after the expiration of a life estate, it has uniformly been held that the postponement of the time of enjoyment will not defer the vesting of the gift which will be held to be vested whenever it can fairly be done without doing violence to the language of the will. Spence v. Robins, 6 G. J. 507; Lark v. Linstead, 2 Md. 420; Tayloe v.Mosher, 29 Md. 443; Fairfax v. Brown, 60 Md. 50; Crisp v.Crisp, 61 Md. 149; Von der Horst v. Von der Horst,88 Md. 129, 130. "The general rule is, that any devise or bequest to a person or persons in esse, unless there be some clearly expressed desire or manifest reason for suspending or deferring the time of vesting, confers an immediately vested interest, although the time of enjoyment may be postponed." Dulaney v.Middleton, 72 Md. 75.

In the case before us, the devise and legacy are made directly to persons in esse named in the will, without the intervention of any intermediate estate. It is true the executors are directed to pay over the legacies at such times as they may find convenient and in accordance with their best judgment and not before the legatees shall have reached the age of twenty-one years; but these directions relate merely to the time of enjoyment and are not of the substance of the gift. The expression, "the survivors or survivor of them," used in connection with the gift to the grandchildren, is in our judgment to be referred to the date of the death of the testator, as their presence in the will in the connection in which they are used does not manifest anything like a clear intention on the part of the testator to postpone the time of vesting of his gifts to his grandchildren.

Ordinarily, a legacy bears interest only from the time at which it is by the terms of the will made payable, but it is well settled that where the testator stands in loco parentis to the legatee, and the latter is otherwise unprovided for, interest will be allowed upon the legacy from the death of the testator, notwithstanding the fact that a future time is fixed for its payment. Budd v. Garrison, 45 Md. 420; Von der Horst's case,supra.

One who stands in loco parentis is defined by this Court inVon der Horst's case as a person, "who means to put himself in the situation of the lawful father of the child with reference to the father's office and duty of making provision for the child." Evidence of the intention on the part of a testator to stand in this relation to his legatee may be found upon the face of the will, from the nature of its provisions, or in the conduct of the testator and in the circumstances surrounding him and the beneficiary. Von der Horst v. Von der Horst, supra, and cases there cited.

In Rogers v. Soutten, 2 Keen, 598, a testator in his lifetime voluntarily became bound to the parish for the support of an illegitimate child of his son and made weekly payments of three shillings for that purpose, with a few exceptions, as long as he lived. It was held by LANGDALE, Master of the Rolls, that the testator had placed himself in loco parentis to his grandchild, and that interest was payable from his death on a legacy given by him to the child, although by the terms of his will the legacy was made payable on the child's attaining twenty-one years of age.

In the present case the legatees had for some time prior to the testator's death been infant orphans of tender years and absolutely without means of support. They were, as we have already said, taken charge of by an aunt who is a single woman, earning her living by sewing, and the testator paid to her five dollars per week for their board or for the expense of their maintenance. The aunt testified that this weekly sum, together with occasional gifts of clothing and a donation of $30, constituted the sole income or means of support of the legatees until recently, when some of them have at times been able to earn small wages. The weekly sum paid by the testator for the board or support of his legatees, who were his infant grandchildren, was not a large one, but in view of his blood relation to them and the fact that they were without other support, we are justified in reaching the conclusion from his conduct and the surrounding circumstances that he intended to put himself in loco parentis to them. Such being the case, it follows that the appellees are entitled to interest on their pecuniary legacies from the death of the testator, and upon the same ground are entitled to the income, if any, produced since the death by the property specifically bequeathed to them.

The legacies of $1,000 each, given to the appellees by the will of their grandmother, are of a different character. They were given "to each of my (her) grandsons, the sons of my deceased son, George Prescott Webb, who may live to reach the age of twenty-one years." These legacies were given upon the plain condition that each legatee must arrive at a given age to entitle him to take at all, and they are, therefore, not vested but contingent legacies, and do not begin to bear interest until the title to them vests by the happening of the condition upon which they are predicated.

It follows from what we have said that the order appealed from must be affirmed and the case remanded for the further administration of the trusts of the legacies under the supervision of the Circuit Court.

Order affirmed and cause remanded.

(Decided December 7, 1900.)