Wahl v. Brewer , 80 Md. 237 ( 1894 )

Roberts, J.,

delivered the opinion of the Court.

The appeal in this case is taken from an order of the •Circuit Court for Baltimore City, sustaining exceptions of certain of the appellees to the ratification of Auditor’s Account A filed in this cause. The real question, however, which it is sought to have this Court determine, arises out of the proper construction of the fifth clause of the last will of John M. Wahl, Sr. This question is presented in the following manner: Richard Hentschell filed his bill of complaint in said Court against the appellant and appellees as defendants, to redeem a ground rent, he being the owner of the leasehold estate, the reversion being part of the-estate of John M. Wahl, Sr., deceased, which passed by" his said will. The answers to the bill admit the plaintiff’s', right to redeem, and the Court so decreed. In pursuance-of the decree the plaintiff paid into Court the sum of five hundred dollars and costs, in extinguishment of said ground, rent. The case being referred to the Auditor to state am account of the proceeds of sale, he allowed therein to John M. Wahl, Jr., a son of said testaor, the one-fifth of the one-sixth of- the balance remaining for distribution.

This allowance was excepted to on the ground that he was not entitled to the one-fifth of the one-sixth share of the net proceeds of the purchase money, because the same belonged to the heirs at law of the deceased son of Marie Brewer, who are the children by a former marriage of James R. Brewer, the surviving husband of the said Marie Brewer. This is the only question which the appellant seeks to have passed upon by this Court, and it is the same which the Court below refused to determine. To a proper understanding of the question, it will now be necessary to refer to that portion of the will of the testator in controversy, which is the fifth clause. By this provision the residue of the estate is given to his five children and his granddaughter, Marie Brewer, equally, the shares to the daughters and said granddaughter to be for their lives only, and then follows this language: “And, immediately after the cjeath of any of my said daughters or my said granddaughter, Marie, I give, devise and bequeath such share or shares to any child or children of such deceased daughter or daughters, or said granddaughter, Marie, or the descendant or descendants of such deceased daughter or daughters, or granddaughter, Marie. In the event of any my daughters or granddaughter, Marie, dying without leaving child or children, or descendants of child or children, then I give, devise and bequeath the share or shares of such daughter,'daughters or granddaughter, Marie, dying without issue, to my other children or their descendants, to take per stirpes and not per capita.”

The granddaughter survived the testator, and shortly thereafter dying, left surviving her a son, who survived his mother but a short while, and died when about fourteen months old.

Shortly after the filing by Hentschell of his bill to redeem, Annie R. Wahl, the widow of the testator and the ■ life-tenant, conveyed, to the appellant all her interest in her life estate.

We fully concur with the Court below in ratifying the audit, except as to the allowance to the appellant of the one-fifth of the one-sixth of the balance for distribution. The Court in its order says: “ The exceptions are sustained, ' but without prejudice to anyone, in raising this question at .the time of the death of the testator’s widow, as to the disposition of the share of said Marie, the time not having arrived for the determination of this question.” The only question open in this appeal, is whether the time has arrived when the disposition of the share of - said Marie ought to be declared.

• The appellant’s contention is, that the estate in remainder of Joseph Brewer, deceased son of the said granddaughter Marie, was contingent, depending upon his survivorship of the life-tenants, and so long as either of those life-estates existed, the contingency of his survivorship continued; and in that event the character of the remainder in him is determined by this collateral contingency, his survivorship, of the life-tenants, and his living át the time of the determination of his life-estate; that this determines the character of the estate in remainder in Joseph Brewer, the son of Marie, and makes it contingent.

(Decided December 18th, 1894.)

If the appellant’s theory be correct, that the character of the estate in remainder is contingent, whose rights will be concluded by any determination of the question at this time ? In so far as his rights are involved, the question is one of but small interest to him, whether it is determined now or at some future time, as it depends upon his being alive at the life-tenant’s death. It certainly is a purely speculative surmise which the future alone will reveal, as to who may be the proper parties in the proceeding to determine the question now sought to have passed upon. As said in the argument, “ we are contesting the question of vesting now, with the appellant, when, if he should be dead when the life-tenant dies, we may have to contest the same identical question with his descendants who are then living, and who would not be bound by any decree in this cause, as they are not parties herein.”'

It is well settled that a Court will never entertain a suit to give á construction or declare the rights of parties upon a state of facts which has not yet arisen, nor upon a matter which is future, contingent and uncertain. 3 Pomeroy's Eq Juris 2 ed. 1157; Minor v. Taylor, 129 Mass. 160; Powell v. Denning, 22 Hun. 235. This Court has announced the same doctrine in Heald v. Heald, 56 Md. 307; Devecmon v. Shaw and Devries, Exrs., 70 Md. 235; Woods v. Fuller, 61 Md. 460.

Under the construction given by this Court in Pennington v. Pennington, 70 Md. 430, to the provisions of the Act of 1888, ch. 478, now embraced in the Code as secs. 26-31 of Article 16, sub-title, “Declaratory Decrees,” we do not consider that this case can be properly considered as coming within the object sought to be accomplished by the passage of that Act. It follows that the decree below must be affirmed.

Decree affirmed with costs.