Albert v. Albert

12 A. 11, 68 Md. 352, 1888 Md. LEXIS 14

• Court: Court of Appeals of Maryland
• Decided: January 6, 1888
• Status: Published

Opinion

McSherry, J.,

delivered the opinion of the Court.

The will of Jacob Albert, bearing date the eleventh day of May, eighteen hundred and forty-six, was duly admitted to probate-by the Orphans’ Court of Baltimore City, on the ninth day of March, eighteen hundred and fifty-four. By it, after making provision for his wife, and after making a few minor bequests, the residuum of his estate was divided into five equal parts, and one of those parts was" given to each of his. children, subject to the conditions and limitations and upon the terms presently to he stated. After specifying in the third clause of his will certain portions of his property which he designed should constitute a part of the share of his son, Augustus James Albert, he .devised and bequeathed by that clause as follows: “The aforesaid three parcels of property, at the valuation specified, with forty-six thousand eight hundred and fifty dollars in stock of the corporation of the City of Baltimore, stock of the Commonwealth of Virginia, and bonds of the Baltimore and Ohio Railroad Company, in proportion to the amount of each of said stocks held by me, and standing in my name, I give, devise and bequeath to my beloved wife, Eliza Margaret Albert, and my son, William Julian, as trustees, the survivors or survivor of them, and the heirs, executors and administrators of such survivor, in special trust and confidence, nevertheless, for the use and benefit of my son, Augustus James, during the term of his natural life, to the end and intent that he, during that period, be permitted and suffered to have, use, occupy, possess and enjoy the same, and the rents, issues, profits, dividends and income arising therefrom, to take, receive and apply to his own use and benefit. And from and immediately after the decease of my said son, Augustus James, then in trust that the same shall descend, and I do hereby devise and bequeath the same to all and every lawful child or children the said Augustus James has, or may have hereafter, their heirs, executors, administrators and assigns, to be equally divided between them, share and share alike. And the balance of one-fifth part of the said rest, residue and remainder of my estate (after deducting therefrom the three parcels of property above devised, with forty-six thousand eight hundred and fifty dollars in stocks, in trust for my said son, Augustus James,) I give, devise and bequeath to my said son, Augustus J., his heirs, executors, administrators and assigns absolutely forever.” The other four shares of the residuum wore disposed of by other clauses for the benefit of his remaining children. In regard to the shares of his two daughters and one of his sons the trusts embrace the whole of their respective parts, and there is some difference in the language respecting the limitations over. Other clauses followed, some of which will be adverted to hereafter. The tenth clause, succeeding that already quoted and those alluded to, is in these words: ‘‘Item. And I do hereby authorize and empower my aforesaid five children, namely, Augustas James, William Julian, Jacob, Anna Margaret and Mary Schroder, should either or any of them who may arrive at lawful age, and have legal descendants, deem it expedient to avail themselves of the power hereby granted, they or either or any of them, may, by their last will and testament, devise and bequeath to their legal heirs,'executors and administrators, either in trust or absolutely, the property real and personal, left in trust for their use and benefit, as in their discretion and judgment they, or either of them, may deem proper and right in the division and distribution of the said property, real and personal. And in the event of my aforesaid named children, or any one of them, dying without making or executing a will or testament, then the said property, real and personal, devised to either or any of my aforesaid children, shall descend to their legal heirs, executors and administrators, under the restrictions and limitations aforesaid.”

Augustus James Albert died on the tenth of September, eighteen hundred and eighty-six, and his will was admitted to probate by the Orphans’ Court of Baltimore County later in the same month. The first clause of that will is as follows : "I, Augustus J. Albert, of Baltimore County, in the State of Maryland, do make this my last will and testament, which I do hereby declare to be executed with a view to affect and embrace all property, real, personal and mixed, of every kind and description whatsoever which shall belong to me at the time of my death, and all that over which I have or shall have the power of testamentary disposition by virtue of my father, Jacob Albert’s will, of record in the office of the Register of Wills, of Baltimore City, in Liber R. H., No. 26, folio 101, &c., or by any other paper instrument whatsoever.” The disposition made by him, under this will, of the settled property and of his own estate will- he stated further on in this opinion.

The executors of Augustus J. Albert’s will and some of 'the legatees filed a bill in the Circuit Court of Baltimore City, against others of the legatees and devisees, seeking a construction of the wills of Jacob and Augustus J. Albert; and a pro forma decree was passed, adjudging the last will and testament of Augustus J. Albert inoperative and without effect as to all the property and estates, real and personal, comprising and forming that part of the estate of Jacob Albert, deceased, which by the third clause of Jacob Albert’s will was devised and bequeathed, as hereinbefore set forth, to Augustus James for life; and further adjudging that the children of Augustus J. Albert are not put to election between the property they are entitled to take under the will of Jacob Albert and the benefits and gifts bestowed by the will of Augustus J. Albert.

From that decree this appeal has been taken, and we are consequently required to determine what effect the tenth clause in the will of Jacob Albert had upon the settled property embraced in the third clause ; and whether the will of Augustus J. Albert is a valid execution of the power of appointment contained, as stated, in the will of his father.

In interpreting the language used in Jacob Albert’s will, we must be governed, in a great measure, by general rules and principles of construction applicable alike to all similar instruments, rather than merely by adjudged cases seemingly analogous; because, as observed by Lord Wensleydale, in Grey vs. Peason, 6 H. L. C., 108, “when the decision is not upon some rule or principle of law, but upon the meaning of words in instruments which differ so much from each other, and when the proper construction is so varied by the peculiar circumstances of each case, it seldom happens that the words of one will are a sure guide for the construction of words resembling them in another.”

The intention of the testator as gathered from the four corners of the instrument is to prevail, if there be apt words used to effectuate it, unless it contravene some positive principle of law or be frustrated by some unbending rule of construction assigning an inflexible meaning to particular words. In discovering that intention all parts of the will are to be construed in 2’elation to each other, without regard to the order in which they occur, and so as, if possible, to form one consistent whole. , Even where technical words are used, though the testator will be ordinarily presumed to have used them in their legal sense, a different meaning will be given to them when the context clearly indicates that such technical import would defeat his manifest intention. Taylor vs. Watson, 35 Md., 519.

Now, it is perfectly obvious that the third clause of the will of Jacob Albert, standing alone, gave to his son, Augustus James, an „equitable life estate in the three parcels of real estate and in the forty-six thousand eight hundred and .fifty dollars of stocks mentioned therein; with remainder to the children of the said Augustus James absolutely ; and that it gave the residue of that one-fifth of the testator’s estate to Augustus J., “his heirs, executors, administrators and assigns, absolutely forever.” There is no controversy in regard to the latter part of this clause which relates to the absolute gift to Augustus J., and we have only to consider what effect the tenth clause has on the preceding part of the third clause and on the estate created thereby. By the tenth clause Jacob Albert authorized and empowered his five children if they arrived at lawful age and had “legal descendants” to “devise and bequeath” “to their legal heirs, executors and administrators either in trust or absolutely, the property, real and personal, left in trust for their use and benefit, as in their discretion and judgment” they might deem “proper and right in the division and distribution of the said property, real and personal;” and in the event of a failure to make such disposition “then the said property, real and personal, devised to either or any of my aforesaid children, shall descend to their legal heirs, executors and administrators,” &c.

We think it manifest from an examination of the whole will that the predominant intention of the testator was to create an equitable life estate for his son, Augustus J., in the particular property designated, with remainder to that sou’s children, and to give to Augustus J., under the tenth clause, power to designate by his last will and testament, whether that remainder thus given by the third clause, should vest in his children absolutely or be continued in trust for their benefit, and in what proportions it should so vest. The whole difficulty arises from the absence from the tenth clause of the word children before the words “their legal heirs,” &c. But though that word is omitted, we think, by a fair construction, the words which are used convey the same meaning, unless the language employed enlarges the estate given by the third clause into a fee simple in Augustus J. Albert, as contended for by the appellants. The word “heirs” is used in Jacob Albert’s will some thirty times with varying meanings. It is sometimes used as a word of limitation and frequently as synonymous with children. The will is inartificially drawn and it seems too plain for argument that the word has not been employed throughout the instrument strictly in its technical sense. In Carne vs. Roch, 4 Moore & Pay., 862, “heir-at-law” was held, by force of the context, to mean eldest son. The word “heirs” is flexible and should be so construed as to give effect to the manifest intention of the testator. Jones vs. Lloyd, 33 Ohio St., 572. It has been construed to mean children, 2 Jar. on Wills, 614, (5th Am. Ed.), note 15, and authorities there cited. This same construction has been applied to it in the case of a devise of real estate. Milroy vs. Milroy, 14 Sim., 48; Micklethwait vs. Micklethwait, 4 C. B. (N. S.), 790.

Now, in the will of Jacob Albert, in other clauses than the ones we are considering, the word “heirs” has been used as meaning children unmistakably. Thus, he says, “it is my will and desire that my real estate and personal property be divided among my heirs, as far as is practicable, without a sale,” &c., “but in case it becomes necessary in order to effect a division of the same/’ he directs a sale of that part “not herein before specifically devised or intended for any of my heirs.” In another clause he gives certain ground rents to one of his daughters during her natural life and after her death to her legal heirs of her body begotten. Again, in reference to his son, Jacob, he directs the trustees to invest that son’s share “for the use and benefit of my said son, Jacob, and his heirs, during his natural life.” It is apparent that in these clauses just alluded to the testator meant children when he said heirs. That he used the word heirs in the tenth, clause of his will as meaning children is evident, not only from the circumstance that such a construction will give full force and effect to both clauses and thus, prevent an irreconcilable repugnancy, but from a proper reading of the clause itself and the undoubted signification attached by him to that word elsewhere in the will, as already indicated. The power to make a testamentary appointment under this clause is a conditional one. The fight to exercise it is made to depend upon two contingencies, viz., that the child undertaking to do so shall have arrived at lawful age, and shall “have legal descendants.”

Those of his children who have no “legal- descendants” are not entitled to make this appointment, and upon their death, the property given in trust for them by other clauses of the will, is directed to be equally divided between the testator’s” surviving children or their descendants, then-heirs, executors and administrators.” But those of his children who do have “legal descendants”—who, therefore, do have children or the descendants of deceased children in whom, under the third clause, the remainder conditionally vested subject to be opened to let in after-born children, and subject likewise to be cut down to a mere life estate by a proper exercise of the power of appointment— were authorized by the tenth clause to make a testamentary disposition or appointment of the estate in remainder by directing the proportions in which it should bo divided amongst those children and by subjecting it or not to a trust for their benefit. It could scarcely have been the intention of the testator by the insertion of this clause to give to those of his children who should have “legal' descendants,” a fee simple estate in the trust property, by the use in this clause of the words “legal heirs, executors and administrators.” This construction (which has been contended for,) would enable those of the testator’s children who have “legal descendants” to strip those descendants by will or by conveyance of the very property which Jacob Albert seemed solicitous to make secure for their ultimate benefit; whilst those having no children and who, therefore, are not within the terms of the tenth clause, would he still restricted to a mere life estate, and wholly precluded from depriving their surviving brothers and sisters, and their descendants of the possession of the remainder limited over after the termination of the life estate.

Giving then to the word heirs in the tenth clause the meaning of children, which is fully sanctioned by the context, and which is in consonance with the authorities, the third and tenth clauses read together would, as far as the settled property is concerned, give to Augustus J. Albert an equitable life estate with remainder to his children, subject to the right on the part of the said Augustus J. to appoint by his will the respective amounts or proportions of his children’s shares of that remainder, and subject to his further right to subject that remainder to a trust for the benefit of all or any of his children. This seems to us to have been the manifest intention of Jacob ' Albert. This intention can be given effect by the construction we are discussing, and that construction appears to be warranted, if not by cases which exactly quadrate ■with this, at least, by the general principles and settled rules alluded to.

We are not unmindful in reaching this conclusion that' the word heirs is followed by-the words executors and administrators, and that it is claimed that whilst the former may sometimes mean children, the latter words never can. But like the word heirs, the words executors and administrators, legal representatives and personal representatives, when used in wills, are often held to mean quite another person than the one implied in their strict and literal acceptation. “It is settled that if an inference can he drawn from a will that a testator used the words personal or legal representatives to designate individuals answering-the description, though not in the strict legal sense of the terms, those persons will he entitled in preference to executors and administrators.” 1 Rop. on Leg., 128; Wm’s Ex., (6th Am. Ed.) 1217-1225. In Horsepool vs. Watson, 3 Ves., 383, "representatives” was construed “issue.” In Atherton vs. Crowther, 19 Beav., 448, where there was a residuary bequest to the testator’s wife for life, remainder to the children of A, living at A’s death, “but if any of the said children should die in A’s life-time, then to the personal representatives of such child or children to take per stirpes and not per capita,” and in another clause there was a gift “in case there should he no such children nor any representatives of such children living, at A’s death, then to the persons who should be the testator’s next of kin;” it was held by Sir J. Romilly, M. R., that the words personal representatives meant descendants. A devise to A and B, or their legal representatives, was construed to mean children taking by substitution. Abbott vs. Jenkins, 10 Serg. & R., 296; Stook’s Appeal, 20 Pa. St., 349. It follows then that the manifest intention of the testator, as we read it, should not be defeated by applying to the words we have just been considering, a technical meaning, when it is quite apparent that they were not. used in any such sense, and when they are regarded as flexible and as signifying, according to the context, a class of persons similar to those included under and often designated by the less strict interpretation of the word heirs.

Having reached this conclusion with respect to the construction of the third and tenth clauses of the will of Jacob Albert, it becomes necessary to inquire whether the will of Augustus J. Albert is a valid execution of the power contained in the tenth clause of the will of his father. This question is not free from difficulty. The reference to the power is amply sufficient. Augustus J. Albert blended the settled property with his own, and directed his executors to make eight equal shares of the whole. One of these shares he gave to trustees for the life of his daughter Anna R., with remainder absolutely, discharged of the trust, to her children and the descendants of deceased children, per stirpes. One other share he disposed of in like manner for the benefit of his other daughter, Mrs. G-ilmor. A third share he gave in the same manner to trustees for the benefit of his granddaughter, Mrs. Winchester, during her life, with remainder over, after her death, discharged of the trust, to her children, &c. For each of his four sons he provided that of their one-eighth shares, twenty thousand dollars should be placed in trust during their respective lives and the lives of their respective wives, with remainders, as to these sums of twenty thousand dollars, over to their respective children, &c.; whilst the residue of each of said son’s one-eighth share was given absolutely to the sons respectively. The remaining one-eighth share was directed to be divided into four equal parts, one of which parts was given to trustees for and during the life of his granddaughter, Dora; another for and during the life of his grand-daughter, Fannie, with remainders in each case to their children, &c., as in the case of his grand-daughter, Mrs. Winchester. The other two-fourths are given respectively to his grandsons, Joseph T. and Augustus J. Albert, upon their attaining respectively the age of twenty-one years, with cross' remainders among these four grandchildren in case of any of them dying, the females without issue, and the males under age and without issue, living at their death.

To test the validity of these appointments of this power it is necessary to read these gifts made by the will of Augustus J. Albert, as if they had been written in and formed part of the will of Jacob Albert, in the place of the power itself therein contained. This brings us to the consideration of the objection strenuously urged upon us, that the attempted execution, of the power is void because it tends to the creation of a perpetuity. “ If the trusts require in their execution, a longer period than that prescribed by the rule, viz., a life or lives in being at the time of its commencement, and twenty-one years, and a fraction of a year to cover the period of gestation, thereafter, and the property devised to the trustees is thereby rendered inalienable for such longer period, the law denounces the devise in trust as a perpetuity and declares it void.” Goldsborough vs. Martin, 41 Md., 501. The record discloses the fact that each of the six living children of Augustus J. Albert—his two daughters and four sons whom he names in his will, and for whom' he makes provision as' we have just stated—was living at 'the time of the death of Jacob Albert. Two other children of Augustus J.;—a son and a daughter—were also then living, but are now both dead, having died in the life-time of their father. The deceased daughter left surviving her one child, Mrs. Winchester; and the deceased son four children, Dora, Fannie, Joseph T. and Augustus J. All five of these grandchildren of Augustus J. Albert were born after the death of Jacob Albert. It has been therefore insisted that it is possible that these equitable life estates created for these grandchildren of Augustus J. and great-grandchildren of Jacob Albert, may not terminate during the lives of any of the children of Augustus J., who were living at the time of the death of Jacob Albert, and within twenty-one years and a fraction after the death of the last survivor of such children ; and that in consequence, as part of the settled property is embraced, they offend against the rule prohibiting perpetuities, and that the entire attempted execution of the power by Augustus J. Albert is therefore wholly void ; whereby under the third clause of Jacob Albert’s will the children and grandchildren of Augustus J. took a vested absolute estate in the settled property. It is undoubtedly true that where bequests are made to a class, and some of the class are in esse, and capable of taking without violating the rule, and some are not, the whole bequest must fail, for the very conclusive reasons given by'Sir Wm. Grant in Leake vs. Robinson, 2 Merivale, 390, quoted with approval in Goldsborough vs. Martin, supra. But where the bequests have been made to individuals, some of whom are capable of taking and seme of whom are not, a different consequence follows. Thus in Wilson vs. Wilson, 4 Jur., (N. S.,) 1076, the bequest was a sum of money upon trust to pay the income to the testator’s wife during her life, and after her death in trust for the then present and future children of J. L., who should be living at the death of the testator’s wife, and who should attain the age of twenty-one or marry, in equal shares, and the testator directed that the shares of each daughter should be settled upon trust for her life, and after her death for her children. Sir W. Wood decided that the trust in favor of a child of a daughter who was living at the death of the testator was valid. He said “I can conceive no ground why in respect of a child of J. L., in esse at the time of the testator’s decease, there should not be a direction that her share should be settled on her children. In Porter vs. Fox, 6 Sim., 485, and that class of cases, the difficulty arises from there being a gift to a class of persons some of whom can take whilst others cannot. lu these cases it cannot be ascertained what is the share of each, and hence the gift is held void as to all. Here, however, the children of each child of J. L. form a separate class, and the share of each class is separately ascertainable.” Now, we think it cannot be doubted that had Jacob Albert instead of creating the power to appoint, himself given by his will an equitable estate for life in the settled property to his son, Augustus J., and then a further similar life estate in the same property to each of Augustus J. Albert’s children in equal shares, living at Jacob’s death, with remainders in fee to their children respectively, upon the death of each child of Augustus J., leaving issue surviving, that the provision would have been perfectly valid and beyond question. The rule forbidding perpetuities would not have been infringed, for the trusts would have extended to a period of time covering only lives in being at the death of the testator. This is precisely the case now before us in so far as the two living daughters of Augustus J. Albert are concerned. The'trusts, as respects their shares of the estates, dp not extend beyond their lives, and they were both lives in being at the death of Jacob Albert. Hence the appointment of these two daughters’ shares of the settled property in trust during their lives is in no manner obnoxious to the objection that the period beyond which the trust could not lawfully extend has been exceeded. The same is true with regard to Joseph T.‘ and Augustus J. Albert, Jr., sons of Joseph Taylor Albert; because, though they were not born during the life-time of Jacob Albert, they were both horn during the life-time of Augus- . tus J'., and they must, of necessity, if they live, attain their majority (the time fixed for the indefeasible vesting of their shares), inside of the period of twenty-one years after the termination of the life estate of Augustus J. Albert; and hence their estates are not within the rule. In the event of their death before reaching twenty-one their interests will vest at once under the provision disposing of the cross-remainders, and the rule would not apply. In regard to the four living sons of Augustus J. Albert, so far as the trusts extend for their respective lives, the result would be the same ; but there is added in each of their cases the further trust during the life of the wife of each, and it has been insisted that this circumstance renders the limitation void, because the wife may not have been in esse at the death of Jacob Albert. But this does not necessarily affect the question, because it does not appear that in fact the wife of either of these four sons was born after the death of Jacob Albert, and we certainly are not justified in assuming that such is the case merely for the purpose of striking down these trusts, when in reality the fact may be otherwise. Conceding, however, that these limitations during the lives of these sons’ wives are too remote, the doctrine of election would be applicable, for the reasons we shall state further on.

The remaining limitations relate to Mrs. Winchester, Dora Albert, now Mrs. Dora Smith, and Miss Fannie Albert. These ladies were all born after Jacob Albert’s death and they were consequently not lives in being at that time ; and it is entirely possible that they may live for a period longer than twenty-one years after the death ■of the longest liver of Jacob Albert’s six surviving children. This possibility would bring these trusts as respects these grand-daughters within the rule, for the vesting of the ultimate remainders after their life interests terminate is postponed till the expiratiou of those precedent estates. Hence as to them these trusts are, under the rule, void. But we do not consider that the other trusts previously alluded to are affected thereby for the reasons assigned by Sir Wm. Quant in Leake vs. Robinson, and by Sir W. Wood in Wilson vs. Wilson, supra. Whilst we hold these limitations with respect to these grand-daugliters too remote, it is clear, we think, the doctrine of election is applicable here as in the instance of the four sons. These limitations in reference to the grand-daughters and the sons’ wives being void, there was no exercise of the power of appointment by Augustus J. Albert in these instances, and consequently the estate to which these four sons and three-grand-daughters were entitled in the settled property vested in them under the will of Jacob Albert in default-of an appointment by Augustus J. Albert. But the latter attempted to dispose of the whole of the settled property,, and hence if the claim be allowed as insisted upon, that these sons and grand-daughters are entitled absolutely to-their proportions of the' settled property, in spite of the evident attempt of Augustus J. to make a disposition of it; and these same parties are permitted to take under the will of Augustus J. that part of his estate given to them therein ; the anomaly would be presented of their claiming both against and under his will. “From the earliest-case on the subject the rule is, that a man shall not take a benefit under a will, and at the same time defeat the provisions of the instrument. If he claims an interest under an instrument, he must give full effect to it, as far as he is able to do so. He cannot take what is devised to him, and, - at the same time, what is devised to another ; although, but for the will, it would be his; hence he is driven to his election to say, which he will take.” McElfresh, Adm’r vs. Schley, 2 Gill, 200. Hence, these grand-daughters will be required to make election whether they will take absolutely under the will of Jacob Albert their proportion of the settled property and relinquish all claim to participate in Augustus J. Albert’s estate ; or to abide by the will of the latter in its entirety. And should the fact be that the wives of the sons of Augustus J. Albert were not in esse at-Jacob Albert’s death, these sons, or such of them as shall be so situated, will also be required to make a similar election. These elections must be made within such reasonable period as the Court bfelow may fix in its decree to be passed in conformity with this opinion.

(Decided 6th January, 1888.)

We do not think that the objection made to the mode of the exercise of the power of appointment can prevail. Augustus J. Albert did not delegate or attempt to delegate to his executors the authority to make the appointment. He exercised the power himself, but he left merely the division of the property to bis executors. This we do not regard as a delegation of the power by any means.

It follows from what has been said, that those parts of the decree appealed from which declare the will of Augustus J. Albert void in so far as it undertook to dispose of the settled property; and which declare that the parties to the cause are not required to make election, must be reversed ; and the case will be remanded that a decree may be passed in conformity with this opinion ; the costs to be paid out of the estate.

Reversed and remanded,.