Patchell v. Groom

I concur in the result, viz., that descendants of living ancestors do not share in distribution among "all of my descendants then living per stirpes and not per capita." but I do not agree that the grandchildren of the testator constitute the stirpes or stocks of descent, in this case.

The majority opinion construes "equally among all of my descendants then living per stirpes and not per capita" as meaning "equally among my grandchildren then living per capita and the then living descendants of deceased grandchildren perstirpes." As the only grandchildren are two children of a son and two of a daughter, this construction does not affect the result. But it does violence, I think, to (1) the intention of the testator, (2) the plain meaning of the words, and (3) in effect, to the Maryland intestacy laws, as reflected in the testamentary plan and the words of the will.

Under Item 3 of the will the testator gave the residue of his estate to his sons, in trust, to pay one-fifth of the net income to each of his five children, for their respective lives, and from and after the death of each respectively, to pay one-fifth of the net income "to the child or children and descendants of such my deceased child per stirpes and not per capita" and in the event of failure of issue of "any one of my said children" at or before the termination of the trust, then the one-fifth of the net income "shall be divided among and paid over to my other children and their descendants per stirpes in the manner hereinbefore limited for their several parts." Item 5 provides that upon the termination of the trust all of the corpus "shall be divided equally among all of my descendants then living perstirpes and not per capita, to them, their heirs, personal representatives and assigns absolutely." In short, throughout the continuance of the trust, the income from time to time is to be divided equally among all of my descendants then living perstirpes and not per capita, and upon the termination of the trust, the corpus is to be divided in accordance with these very words, which exactly describe every previous division of income.

In Item 2 of the will the testator, out of his own estate, equalized the provisions of his wife's will (which sudden death prevented her from changing) "both as to income and principal," among their "children and descendants," "to the end and intent that all of our said children and their children and descendants shall share equally the estates and property of their parents." Equality among "all of our children and their children and descendants," i.e., equality among our children and among their children and descendants as representing our deceased children, is the stirpital equality established under the Maryland intestacy laws.

Standing alone, the words "equally among all of my descendants" might be taken to connote a per capita distribution. The mere fact that income is distributed per stirpes would not necessarily be controlling as to the distribution of corpus. When corpus is distributed upon the termination of life estates, that is naturally the occasion for making any change from perstirpes distribution of income among children, to per capita distribution of corpus among their descendants. Requardt v. SafeDeposit Trust Co., 143 Md. 431, 436, 122 A. 526; Lycett v.Thomas, 153 Md. 443, 138 A. 225; Re Stone [1895] 2 Ch. 196. But this court has said (quoting Jarman) that "a very faint glimpse of a different intention in the context" will require that words ordinarily indicating per capita distribution be otherwise construed. Slingluff v. Johns, 87 Md. 273, 283,39 A. 872. The fact that income is distributed per stirpes may be a decisive circumstance showing such an intention as to corpus,Levering v. Levering, 14 Md. 30, 38, 39; In Re Campbell'sTrusts, 33 Ch. D. 98, especially when the corpus is distributed to the same persons as have already been receiving the income.Brett v. Horton, 4 Beav. 239. In the present case there is no distribution of corpus, and no change in distribution of income, upon the death of all the children. The distribution of corpus is compelled by the Rule against Perpetuities, and has no relation to any other feature of the testamentary plan.

In the case at bar we need not depend upon the general scheme of the will, the provision for a per stirpes distribution of income, or the stirpital provision in Item 2. The words "equally among all my descendants then living," are expressly qualified by the words "per stirpes and not per capita." By the use of this precise phrase, the testator indicated that his descendants should take by representation or substitution and effectively negatived any implication that any of the testator's descendants should take per capita. Compare Rotmanskey v. Heiss,86 Md. 633, 39 A. 415, and Plummer v. Shepherd, 94 Md. 466, 51 A. 173.

The case of Mazziotte v. Safe Deposit Trust Co.,180 Md. 48, 23 A.2d 4, illustrates the point. In that case the expression was "issue of my said four daughters, living at the termination of the trust per capita." The court said: "The word `issue' * * * in Maryland * * * has usually been found equivalent to heirs of the body or those who would take in case of intestacy, thus rendering gifts to remoter descendants only substitutional, in place of gifts to deceased ancestors. * * * 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." 180 Md. at page 50, 23 A.2d at page 5. Conversely, in the will before us, the words "per stirpes and not per capita" exclude the possibility that the descendants should take in their own right and not by representation.

In the Restatement, Property, Sec. 303, it is said that when a "class gift" is made to the "descendants of B" (or "issue of B"), ordinarily distribution is made to such members of the class as would take, and in such shares as they would receive, under the applicable law of intestate succession.

In comment f to Sec. 303, it is said: "When a limitation is made to the `issue of B,' or to the descendants of `B,' and all of B's children are dead, but grandchildren of B are alive, a problem arises as to whether these grandchildren of B take equal shares or take as representatives of their respective parents. This is determined in any state in the same manner as the similar problem of intestate succession is determined in that same state. Commonly statutes provide that remote issue of the intestate, when all of the same degree, takeper capita. Where such a statute exists, the distribution of a class gift of the sort described in this comment would be regulated thereby unless a `contrary intent of the conveyor is found from additional language or circumstances.'"

Comment h to Sec. 303 states: "Limitations which come within the rule stated in this section frequently contain language or have circumstances tending to corroborate the conclusions that the term `issue' or `descendants' has been used as substantially the equivalent of `heirs of the body' and hence that distribution should be made in accordance with the law of intestate succession * * *. Illustrative of these corroborative factors are the following: (1) the conveyance specifically provides for a perstirpes distribution; (2) the conveyance refers to the law of intestate succession or uses the word `heirs' or `inherit' or other similar word, in a manner justifying the inference that the conveyor thought of the class as having shares dependent upon their differing degrees of relationship to a single person; and (3) the conveyance embodies a general plan of the conveyor which can be best effectuated by a stirpital distribution."

In so far as the Restatement requires distribution perstirpes of a gift to "descendants" or "issue," without more, this reflects a change from the early English authorities, as to "issue," and from a dictum of Mr. Jarman in his first edition, as to "descendants," quoted by this Court in Levering v. Orrick,97 Md. 139, 145, 54 A. 620, and by the majority opinion in the case at bar. The rule of the Restatement was, however, adopted by this court in Mazziotte v. Safe Deposit Trust Co., supra. But regardless of the implication from "descendants," standing alone, the English and American authorities are entirely in accord on the point that distribution perstirpes means distribution to those who would take, by representation, under the intestacy laws.

The Maryland Statute of Distributions, Sec. 127 et seq., Art. 93 of the Code 1939, (adopted by reference in Sec. 1 of Art. 46 of the Code, subtitle "Descents") does not provide for an equal division among grandchildren where the children of the intestate are dead. See McComas v. Amos, 29 Md. 120 and Iglehart v.Holt, 12 App. D.C. 68. Nor does the English Statute of Distributions, 22 and 23 Car.II, c. 10 (In re Natt, 37 Ch. D. 517, 520-524), or the present Act of 1925, 10 Halsbury's Laws ofEngland, Sec. 848, p. 587. The statutes in most of the other states are to the contrary. In re Samson's Will, 257 N.Y. 358,178 N.E. 557; Matter of Strohmer's Estate, 149 Misc. 219,266 NYS. 886; See cases noted in 140 A.L.R. 1141. See also 4Kent's Commentaries (14 Ed.) 375, 391, 392; 5 Thompson, RealProperty (Permanent Ed.), Sec. 2408; Tiffany, Real Property, (3d Ed.), Sec. 1124; 11 Notre Dame Lawyer, 14, 142 et seq. In Maryland, as in England, by virtue of the Statute of Distributions grandchildren take as the representatives of their respective parents, even where those parents are dead, in cases of intestacy — and in analogous cases under wills. Lobe v.Goldheim, 153 Md. 248, 138 A. 5; In re Natt, supra. In the latter case North, J., not only pointed out that by Justinian's law, upon which the English Statute of Distributions was based, distribution to grandchildren was per stirpes, even when they were the only claimants, but he said: "it may be doubted, whether our Courts of Equity would be easily induced thus to extend this restrictive construction of the distribution per stirpes to descendants. It was once indeed attempted before Lord Chancellor Hardwicke. But, after hearing the point discussed, he discouraged the idea of a distribution per capita, and gave an opinion against it."

In the case at bar we not only have a limitation to the descendants of the testator, which seems to refer the determination of the proportions in which the grandchildren take to the Statute of Distributions, but all of the corroborative factors stressed in the Restatement are present. There is nothing in the will which permits a per capita division at any time. No authority has been cited, and none has been found, which suggests doubt as to the meaning of "my descendants per stirpes" or "the descendants of B perstirpes." "My descendants per stirpes" or "the descendants of B per stirpes" are my children or B's children, as the case may be. Lycett v. Thomas, supra, and the English cases therein cited, belong to a narrow class of gifts to "the descendants of A and B per stirpes," i.e., independent gifts to the descendants of any one of two or more persons, unconnected with previous gifts of income to the same descendants or the specified ancestors. In such cases, the question arises as to the intended point of reference, a question that cannot arise where the testator speaks of his own descendants, who necessarily begin with his children. In 3 Jarman on Wills (7th Ed.), p. 1561, it is pointed out that "if the gifts were to the descendants of one person per stirpes," the conflict between Lord Romilly's construction and Lord Westbury's could not occur.

In Maryland, as in England, distribution among my descendants then living per stirpes, would seem to establish my children as the stocks and to fix the proportions in which my surviving grandchildren take. Lobe v. Goldheim, supra (decided two days before Lycett v. Thomas), In re Natt, supra. The contrary statement in the majority opinion is not necessary to the decision in this case.

COLLINS and MARKELL, JJ., concur.