Larmour v. Rich

18 A. 702, 71 Md. 369, 1889 Md. LEXIS 120

• Court: Court of Appeals of Maryland
• Decided: November 15, 1889
• Status: Published

Opinion

McSherry, J.,

delivered the opinion of the Court.

Jacob Myers executed a last will and testament on the 17th day of July, 1835. By the residuary clause he directed that all the rest and residue of his estate should be divided into ten equal parts. Three of these parts he gave to his three sons absolutely. Ten thousand dollars out of each of the remaining seven-tenths, making $70,000 altogether, he placed in trust for his seven daughters during their respective lives, giving them merely the income therefrom, “and from and immediately after the decease of my said seven daughters respectively, then in trust that one of said sums of $10,000, or the stocks and property in which the same may be vested, shall descend to and. become the property of their child or children respectively, his, her or their heirs, executors, administrators and assigns, absolutely, if more then one, as tenants in common, to be equally divided between them, share and share alike. The issue of any deceased child of my said seven daughters respectively, if any such issue there should be, to have and lake the part or share the parent of such issue respectively would if living be entitled to, and in the event of the decease of any of the children of my said seven daughters respectively, under age and without issue, the part or share of him, her or them so dying shall descend to his, her or their brother or brothers, sister or sisters, and in case it shall so happen that either of my said seven daughters shall depart this life without leaving a child or children or descendants of the same living, then in trust that the part or share of the daughter or daughters so dying shall descend to and become the property of my surviving children, their heirs, executors, administrators and assigns forever.” By a codicil he extended these trusts to the whole of each daughter's share of the residuum. There are other codicils, but they do not relate to the question before ns. By a deed of trust dated February the 15th, 1840, he assigned to trustees certain leasehold property, reserving to himself a life estate therein. This deed provided that upon his death his daughter, Rebecca A. Miller, should, as to one moiety of the property, be permitted to take the rents and profits during her natural life, “and from and immediately after the decease of the said Rebecca A. Miller, then in trust that the said undivided moiety or equal half part of and in said ground and premises shall descend to and become the property q/the children the said Rebecca A. Miller now hath, and the child or children she may hereafter have, their executors, administrators and assigns, as tenants in common, equally, the issue of any deceased child of the said Eehecca A. Miller, if any such issue there should he, to take and have the part, share or proportion only to which the parent of such issue would, if living, he entitled; and in the event of the decease of any of the childron of the said Eehecca A. Miller under age and without issue, the part, share or proportion of him, her or them .so dying, shall descend bo and become the property of the survivors or survivor of them; hut in case the said Eehecca A. Miller shall depart this life without leaving a child or children, or descendants of the same, living at the time of her death, or in case she should leave a child or children, or descendants thereof, living at her decease, and such child or children and descendants should subsequently depart this life under lawful-age and without issue,.then to the use, benefit and behoof of the right heirs of the said Jacob Myers and their assigns absolutely.”

Myers died in 1841. His daughter, Mrs. Miller, had three children, Louisa K., FannyK. and Virginia Miller by her first marriage; and one child, Albert W. Barron, by her second marriage. Mrs. Miller died December 9th, 1888, leaving her daughters Fanny K. and Virginia and a grand-son, Edward M. Barron, the son of her deceased son, Albert W. Barron, surviving her. Her daughter, Louisa K. married John Worrall Larmour in 1861, and died a -few weeks afterwards, without issue, hut leaviug her husband surviving her. The trustees under the deed and will having all died, Eev. Arthur J. Eich was duly apjDointed in their stead, and now holds the entire trust estate. Upon the death of Mrs. Miller (afterwards Mrs. Barron) the trustee filed a petition asking the aid of the Circuit Court of Baltimore City in administering and settling the trust estate, and upon those proceedings the question now before us has arisen. That question, briefly stated, is, has John Worrall Larmour, by reason of his being the surviving husband of Louisa K. Miller, any interest in the property and estate disposed of hy the clauses already quoted from the will and deed of trust. The Circuit Court of Baltimore City held that he had not, and from its decree this appeal has been taken by him.

It is a perfectly familiar maxim that the intention of a testator when apparent on the face of his will must be gratified if it be lawful to do so. The same rule is applicable to the construction of a deed. Obviously the most simple and the most natural way to ascertain what a testator’s or a grantor’s intention was, is to read what he has written, because what he has written was designed by him to express that intention. It is true there are many other rules of construction to which resort is sometimes had. Some of these have been adopted by legislative enactment and others are the outgrowth of judicial decisions. But they are rarely invoked except when the intention is obscurely or inaptly expressed. Generally speaking, they are not suffered to defeat a clearly manifested intention ; but occasionally the intention, though evident, is made to yield and bend to a fixed meaning attached to particular words. II' we lay aside and put out of view for a moment these artificial rules, and read the language of the deed and will as it would strike the mind of one unacquainted with such rules, there will be little, if any, difficulty in discovering with reasonable certainty what Jacob Myers actually intended to do. This is permissible because we are seeking to discover what he meant, and we must, therefore, put ourselves, as nearly as possible, in his place. We may, for the sake of brevity, eliminate the language pertaining to the trusts, as the result in this respect will be precisely the same.

Under the deed, then, he reserved to himself a life estate in the leasehold property. Upon the termination of that estate he gave the rents, issues and profits of one-half of this property to his daughter Rebecca A. Miller, during her life. Erom and immediately after her decease he directed that the property itself should then “descend to and become the property of the children, the said Rebecca now hath, and the child or children she may hereafter have,” “the issue of any deceased child, * * * * to take and have the part” “to which the parent of such issue would if living be entitled.” “If living” clearly means, if living at the time of Mrs. Miller’s death. He further declared — first; that if his daughter should die without leaving a child or children, or descendants of the same living at the time of her death, or, secondly, that in case she should leave a child or children or descendants thereof living at her decease, and such child or children and descendants should subsequently depart this life under lawful age, and withont issue, the property should pass to his right heirs. Certainly so long as Mrs. Miller lived, her children were to get nothing in possession; but upon her death the corpus of the estate was to “descend to” them and become their property, and the child of a deceased child was to take the share his parent would have taken had that parent survived Mrs. Miller. Her death was fixed by him as the point of time at which the corpus of the estate should “descend to and become the property of” her children. This is the obvious import of his words, apart from the subsequent contingencies in the same sentence, whereby he provided that his right heirs were to succeed to the estate in the event of those two contingencies happening. It was possible, at the date of the deed, that either of these alternative contingencies might have occurred; but it'was impossible, giving to his words their ordinary and natural signification, that the estate should “descend to” or “become the property of” Mrs. Miller’s children or their descendants, in any event, until her death. The will is substantially similar though there is some slight difference in the two alternative contingencies, which does not, however, affect the question involved on this appeal.

Jacob Myers has, according to the plain import of these instruments, indicated with reasonable certainty, the time at which he wished Mrs. Miller’s one-seventh of the residuum of his estate under the will, and her one-half of the leasehold property under the deed to vest in her children, to “become” their property; and that time, as he has fixed it, could never be reached during the life of his daughter, Mrs. Miller. Hence, if this intention of his is to prevail, no portion of the estate could possibly vest ill any child of Mrs. Miller not living at Mrs. Miller’s death.

This being so, it remains to inquire whether the intention thus manifested is in conflict with any settled principle of the law, or any paramount rule of construction. The law, it may be conceded, favors the early vesting of estates, and the Courts will, as a general rule, where there is more than one period mentioned, adopt the earlier one, if there be no expressions or no intent plainly dedueible from the terms used, indicating that the testator meant to select the later and not the earlier period. Upon these principles rest the decisions in Meyer vs. Eisler, 29 Md., 28; Tayloe vs. Mosher, et al., 29 Md., 443 : Fairfax, et al. vs. Brown, et al., 60 Md., 50 ; Crisp, Trustees vs. Crisp, e.t al., 61 Md., 149, and others of the same class, where the estates were held to have vested upon the death of the testator. But the testator may, if he chooses, fix the period of vesting to suit himself, provided he does not transcend the time allowed by the rules of law. He may defer that period and make the vesting of the estate depend upon a contingency. When he has done this with reasonable certainty his wishes will prevail and the estate will not vest until the happening of that contingency. This principle underlies the cases of Engel, et al. vs. State, use of Geiger, 65 Md., 544; Straus vs. Rost, 67 Md., 465; Bailey vs. Love, 67 Md., 603; Mercantile Trust and Deposit Co. vs. Brown, et al., ante, page 166; and Demill vs. Reid, et al., ante, page 115. These cases have heen so recently decided that we need make no citations from them. They completely cover the question involved here, and are, in our opinion, decisive of it. The whole controversy resolves itself into the single inquiry, whether the equitable estates in remainder were vested or contingent remainders ? And whether they were the one or the other depends largely upon what Jacob Myers intended them to he. Had no future period heen fixed by him with reasonable certainty, the laAv itself would have treated the remainders as haAÚng Amsted upon the execution and delivery of the deed and the death of the testator respectively; and the case would then have heen one of the class to which Grisp vs. Grisp and the others first cited belong. Blit a future period having heen fixed, and the time of its occurrence having been uncertain, until the death of Mrs. Miller, the remainders Avere clearly alternative contingent remainders, or contingent remainders with a double aspect, as they are sometimes called; and so the case comes within the class to Avhich those last noted belong.

These remainders never vested in Louisa K. Miller the wife of Mr. Larmour, because she died in the life-time of her mother, before the period fixed for the remainders to vest. Necessarily, therefore, her husband acquired no interest therein and the decree of the Circuit Court is, in our judgment, entirely coiTect and must he affirmed. Eac^. case of this character must, in a great measure, he decided on its own peculiar circumstances. Hence other cases, where somewhat similar language has heen construed and where different results were reached in accordance with the intention of the several testators as understood or interpreted in the light of the facts disclosed in those cases, can not control the determination of this case. The conclusion to which we have come does not in any respect conflict with former rulings of this Court.

(Decided 15th November, 1889.)

The costs of this appeal will he directed to he paid out of the trust estate.

Decree affirmed.