DocketNumber: [No. 32, October Term, 1941.]
Citation Numbers: 23 A.2d 4, 180 Md. 48, 1941 Md. LEXIS 190
Judges: Bond, Delaplaine, Collins, Forsythe, Marbury
Filed Date: 12/3/1941
Status: Precedential
Modified Date: 11/10/2024
The case has arisen upon a petition filed in equity by a substituted trustee under a will, for construction of a gift of remainders after termination of the trust. The question raised is whether a gift over to the issue of daughters of the testator living upon their death, per capita, is a gift to all living descendants of the daughters in all generations, in equal shares, allowing remoter descendants to share with their living parents, or is a gift to the parents excluding their children. The chancellor below held that the living grandchildren took to the exclusion of their own children, and the guardian of those children has appealed.
William H. Lohmeyer, by the third clause of his will dated June 1, 1903, and admitted to probate February 24, 1911, devised two parcels of real estate in trust for payment to each of four daughters of a two-ninths part of the income, and to pay a son the remaining one-ninth. And a fourth paragraph provided that upon the death of all the daughters, "then the trust hereby created shall cease and eight-ninths of the trust property shall be paid conveyed and delivered to the issue of my said four daughters, living at the termination of the trust per capita." The four daughters have all died, and they left surviving them six children altogether, one daughter having left one, another two and a third three. The fourth daughter left no issue of any generation surviving her. *Page 50 Three of the six children of these daughters, all of whom are now living, had living at the termination of the trust six children of their own, similarly distributed, one child having one, another two, and a third three. There were living, then, at the termination of the trust, and arrival of the time for distribution, six grandchildren of the testator, and six great grandchildren in all, to three of the grandchildren.
The word "issue" in the disputed clause is clearly one of purchase. Miller, Construction of Wills, Sec. 77. And standing alone, the meaning of it has been a subject of difference of opinion. Miller, supra, secs. 89 and 90; Notes 2 A.L.R. 930; 5 A.L.R. 195; 78 A.L.R. 1385, 1398; 117 A.L.R. 691. Primarily, it embraces all lineal descendants. Goldsborough v.Martin,
But the word does not stand alone. The takers are to be the issue per capita, and the qualification seems to dispose of the question of interpretation. A gift to issue per capita means that all beneficiaries who may come within the classification of issue of the four daughters are to take in their own right from the testator directly, *Page 51
and not from their parents or in representation of them.McPherson v. Snowden,
The words per capita added here were used with knowledge of their meaning, and we must assume they represent the testator's intention. Stein v. Safe Deposit Co.,
There is no escape from the conclusion that the draftsman of the will had clearly in mind the distinction between per capita and words which would make substitutional gifts, and that he chose the result of his words. Counsel are able to point out possible omissions, on either interpretation, of relatives of seemingly equal standing with those to be included in the testator's bounty, but these facts are not found sufficient to alter the interpretation. The direction is explicit, beyond the aid of inferences from that source. Some omission was intended in confining the gift in remainder to those living at the termination of the trust.
This court therefore finds itself unable to concur in the interpretation accepted by the chancellor below, and the instructions given, and must remand the cause in order that the trust property be ordered distributed to all the issue of the deceased daughters of the testator, great-grandchildren to share equally with the grandchildren, including the parents of the great-grandchildren.
Decree reversed and cause remanded in order that a decree maybe passed in conformity with the opinion, costs to be paid out ofthe trust fund. *Page 53
In Re the Accounting of the Farmers' Loan & Trust Co. , 213 N.Y. 168 ( 1914 )
Travers v. Wallace , 93 Md. 507 ( 1901 )
Horwitz v. Safe Deposit & Trust Co. , 172 Md. 437 ( 1937 )
Vestry of Emmanuel Church v. Safe Deposit & Trust Co. , 169 Md. 28 ( 1935 )
Stein v. Safe D. T. Co. , 127 Md. 206 ( 1915 )
Patchell v. Groom , 185 Md. 10 ( 1945 )
Gideon v. Fleischmann , 193 Md. 203 ( 1949 )
In Re Clarke's Will , 198 Md. 266 ( 1951 )
Ballenger v. McMillan , 205 Md. 94 ( 1954 )
Clarke v. CLARKE, TRUSTEE , 222 Md. 153 ( 1960 )
Safe Deposit & Trust Co. v. Sanford , 181 Md. 271 ( 1943 )
Kelly v. MERC.-SAFE DEP. & TR. CO. , 262 Md. 626 ( 1971 )
Robinson v. Mercantile-Safe Deposit & Trust Co. , 214 Md. 30 ( 1957 )
Weller v. Sokol , 271 Md. 420 ( 1974 )