# Burt v. Gill

> Court of Appeals of Maryland · May 8, 1899 · 89 Md. 145

URL: https://www.frixlaw.com/law-library/cases/9866195

## Case

- **Full name:** Alfred P. Burt, Trustee, and Mary E. Burt v. . Jane Henderson Gill and Robert L. Gill.
- **Court:** Court of Appeals of Maryland
- **Decided:** May 8, 1899
- **Citations:** 89 Md. 145; 42 A. 968; 1899 Md. LEXIS 25
- **Precedential status:** Published
- **Opinion:** Dissent by Pearce
- **Judges:** Briscoe, Fowler, McSherry, Pearce, Roberts, Schmucker
- **Cited by:** 13 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9866195

## Opinion text

Pearce, J.,
dissented and delivered the following opinion: It is my misfortune not to be able to agree with the conclusions of my brothers, in this case, notwithstanding my sincere deference to their superior and united judgment, and I think it proper to state the grounds of my dissent. I shall not cumber this opinion with any reproduction of the language of the will, which is set out in the opinion of the Court. I am in entire accord with the statement therein of the general rules and tests to be observed in endeavoring to ascertain the intention of a testator; nor would I ever seek to control such intention when properly ascertained, by reference to artificial or technical rules of construction. Having satisfactorily ascertained the real intention of a testator, it must be respected and allowed to operate, unless in conflict with the settled policy of the law, or unless violence would thereby be done to the established legal interpretation' of the language, in which the will is couched, and in such case the intention which the law presumes from the language used, must prevail.
The result of very careful consideration, both before and since the decision of this case, is to convince me that the testator did not intend that the unexpended income which accumulated before his daughter reached eighteen should belong absolutely to her, but that he designed it should form a part of “ the whole amount of said trust-funds and property” which he directed should go to her children at her death, or in default of children or issue, to his two sisters, and this conclusion, which I deduce from the language of the will, and from a consideration of the peculiar *155 situation of the testator, and the relation subsisting between him, and the declared objects of his bounty, is, in my judgment, the only one which accords with the settled legal construction and effect of the language in which he dealt with this bequest. It is true, there is here no express direction for the investment or accumulation of the unused income, and its addition to the corpus of the estate, but it is conceded by my brothers that such effective direction may arise by implication, and I think it is clearly implied in this case.
The testator was a widower at the date of his will, and at the time of his death in 1882. He left no issue, other than one daughter, then seven years of age, who has since married. Until she reached eighteen, he limited the application of the income derived from the $100,000 bequeathed to his trustees, to such sums as should be necessary to the support, maintenance, and education of his daughter. There was no bequest of the principal sum to his daughter. That bequest was to the trustees. The bequest of income up to eighteen was to the trustees also, and not to the daughter. The only title to, or property in, the income prior to eighteen, which she could acquire, was through the discretion of the trustees in creating such title or right of property, by its application to her use. It can scarcely be supposed that he contemplated any very considerable part of the income of $100,000 would be required for the purposes named, at least before she reached fifteen, and if so, he must have contemplated during these seven or eight years an accumulation of not less than $10,000 to $15,000. It is equally unreasonable to suppose that as a business man, accustomed to dealing with large sums, he designed this surplus income to lie idle and uninvested until she reached eighteen, and by such annual investment and reinvestment, these accretions would be still further swelled. Neither the trustees, nor the Court, which in 1883 assumed jurisdiction of the trust, could have supposed he so designed, for under the direction of the Court the trustees did accu *156 muíate and invest the unused income which now amounts to $35,000. They did not pay over this unexpended income to the testamentary guardian who duly qualified as such, as the same accrued, nor to the daughter herself on reaching eighteen, as would have been the natural and regular course if it in fact belonged to her absolutely. On the contrary, when she reached eighteen, an audit was stated and ratified by the Court,in which this $35,000, which had been accumulated, together with the $100,000, was retained by the trustees, as part of “ the trust-funds and property.” It is, of course, unnecessary to say that I am not to be understood as meaning that any of these things can affect Mrs. Gill’s right to this income, if such right would otherwise exist, and they are referred to only to show the history of these accumulations as consistently dealt with by the trustee, by the Court under whose direction he acted, and by the guardian (in this case the trustee) and to throw upon the matter the light which is often shed with such luminous effect by the cotemporaneous conduct of all the parties— conduct, which in this case was acquiesced in by Mrs. Gill for six years after reaching eighteen. Let us at the outset apply to the question of the testator’s intention, the test to be found in a simple question which must have arisen in his mind if he gave any consideration whatever to the ordinary contingencies of life and fortune. Let us suppose that his daughter had lived to seventeen years of age and had then married an unworthy man, and had died under eighteen withoutissue, the accumulations then amounting to $ 15,000. As the law of Maryland then stood, and as it stood at the time of his will and of his death, these accumulations, if hers absolutely, would have gone to her husband, and not to testator’s sisters, although he provided that the income which he did direct to be paid to her, should not be subject to the control of any husband she might have. Can we believe that he intended by the language he employed, to give her such an interest in these accumulations as would permit such a result ? And with what disposition would a *157 Court approach the consideration of this will, if the right to these accumulations were asserted by a husband under the circumstances above supposed, instead oí by the wife herself, as in this case? With mere results the law has no concern. If the testator’s intention, legally ascertained, will now sustain the claim of the daughter, it would equally sustain the claim of her husband under the circumstances I have supposed, and if under those circumstances we would deny the claim of her husband, we cannot now admit the claim of his wife. Let us now examine the language of this will and see what warrant it affords for the view of this matter which for sixteen years was taken by all the parties, and which to me still appears to be the correct view.
It is first to be observed, that after limiting the application of income up to eighteen, in the discretion of the trustees, the testator says, “ and thereafter to pay the net amount of said rents and income unto my said daughter for and during her natural life,” &c. To my mind it is clear that the use of the word “thereafter ” limits the effect of that clause to the rents and income thereafter accruing, and excludes from its operation the rents and income which had theretofore accrued, not only because this is the simple and natural effect to be given to the word “ thereafter,” in such connection, even if it stood alone, but because it does not stand alone and its use is explained and made clear by the subsequent words “ for and during her natural life,” which should be read by transposition as if they immediately followed the word “thereafter.” This, I think, would make clearer to the eye and ear, but no clearer to the mental vision, what 1 regard as the true meaning of the testator. If this be not so, and if the true construction be to include in the direction to pay to her the rents and income which had been theretofore accumulated, then the effect of the words, “ for and during her natural life,” must either be to limit her to a life-estate in these previously accrued rents, which would be wholly inconsistent with the intention attributed to the testator by the Court, or they must be held *158 to have no effect upon the character of the interest she is to take in the accumulations, though the clause in which they are found is invoked to support her claim to an absolute estate. It is objected in the opinion of the Court that “ to accumulate the unused income now under consideration, and invest it for the benefit of the daughter for life with remainder to her successors in the title to the trust-fund, would result in making her father’s will give to her an absolute estate in part of the income of the trust-property, and only a life-estate in the rest of it. ” Whether her father’s will did give her such an estate, is the very question and the only question before the Court. My brothers find nothing in the will indicating such intention on the testator’s part, while to my mind the indications are ample and I regard the anomalous results which I have attempted to show would follow logically from the construction placed by the Court upon the direction to pay to the daughter, as lending much strength to my own construction.
Moreover the subsequent language of the testator, when he comes to provide for the children of his daughter, is, I think, consistent with the view here taken, and inconsistent with that taken by the Court. To her children, or in default of children, to his sisters, he bequeaths not, “the said sum of $100,000;” not, “the corpus of the fund which I have bequeathed to my trustees for my daughter;” but, “ the whole amount of said trust-funds and property;” a general, indefinite, and vague description, entirely proper to express an undetermined, and indeterminate, sum or quantity as that of necessity was, but wholly inappropriate in fact, and inadequate in legal terminology, to describe the fixed and definite sum of $100,000, which the Court holds he thereby intended to bequeath to his daughter’s children.
The view which I take appears to me to be satisfactorily sustained by authority.
In Hanson v. Graham, 6 Vesey, 238, the testator gave directly to his three grand-children ^500 apiece, and directed that the interest should be laid out at the discretion of his *159 executors and trustees for the benefit of his said grand-children, till they should attain twenty-one. One of these grand-children died when nine years of age, and the question was whether her legacy vested immediately, or only on reaching twenty-one, and the Master of the Rolls held it vested immediately, because by thatzvill it zvas clear the zvhole interest zvas givc?i; but that it would have been otherzvise, if only maintenance had been given, and that a direction for maintenance has not the same effect in favor of vesting as giving interest, “uponthis principle, that nothing more than a maintenance can be called for; what can be shown to be necessary for maintenance, however large the interest may be, and therefore what is not taken out of the fund for maintenance, must follow the fate of the principal whatever that may be,” and this case has been frequently cited with approval in the Courts of this country.
In Costabadie v. Costabadie, 6 Hare, 414, where testator’s wife was to receive the income of his estate for the use of herself and her children for her life, in her discretion, the Vice-Chancellor said : “The testator may limit and circumscribe the interests which he bequeathes to his children, as he may think proper, and the Court cannot enlarge the interests which he has given. Where a proper and honest discretion is exercised, the legatee takes all that the testator gave, or intended he should have. That is the measure of the legacy.” This case was cited with approval by the Supreme Court of the U. S., in Colton v. Colton, 127 U. S. 321 , and the principle announced by it, as well as by the case of Hanson v. Graham, 6 Vesey, supra, has been approved by this Court in Pole v. Pietsch, 61 Md. 570 . It is the principle which in my opinion should control the disposition of this case. It has been applied by a number of the Courts of last resort in this country in cases very similar to the present.
In Huber's Appeal, 80 Pa. St. 348, the testator, Fredk. Gaul, bequeathed one-eighth of his estate to his son Jacob for life, and after his death to his children equally, “ provided that Jacob’s share should remain in the hands of his *160 executors as trustees, the income during his life to be paid to him, or applied by them at their option for his support so that the same shall not be liable for his debts.” Upon Jacob’s death, his administrator filed a petition for an account from the executors of Fredk. Gaul of Jacob’s trust-estate. The executors demurred, and it will not be inappro ■ priate to quote the language of their demurrer, which very quaintly but very tersely and accurately states the legal principle on which they relied, taken from Hanson v. Graham. These defendants demur to the right of said Huber to ask any account of them, inasmuch as the said Jacob Gaul left no estate to be administered, the whole of his estate under the will and the intestate law, and all accretions thereof, being the fruit of the tree from which they sprung, follow and belong to the tree." The Court below held that the accumulations of the income of Jacob’s fund, which had not been applied for him, did not pass to the administrator and this judgment was affirmed on appeal, the Court saying: “ The extent and character of a devisee’s estate depend on the qualities stamped on it, and the powers conferred over it, by the testator, and not alone on the parties in whom the title is formally vested. Here the trustees in providing for Jacob’s support were to exercise a discretion. Only when they should pay it to him, was he to have title to the income. The administrator could receive it only on the theory that Jacob owned it.”
In Ellingwood v. Beare, 59 Howard’s Prac. Rep. 503, the testator gave $10,000 intrust to invest the same and apply the interest, or so much thereof as should be necessary for the support and maintenance of his daughter, or in the trustee’s discretion to pay her the whole interest annually, and at her decease he gave “ the $10,000 to her children then living,” and in default of issue, over. She died without issue, the income was more than sufficient for her support, and several thousand dollars had accumulated in the trustee’s hands at her death.. It was held thatthe $10,000 should carry with it to the legatees in remainder, the interest *161 or income which it had earned, and which had not been applied to the daughter’s maintenance ; and that the testator so intended, though there was no express direction for accumulation for that purpose.
In Clements Appeal, 49 Conn. 519 , a fund was bequeathed in trust to pay over the income at the discretion of the trustee to the testator’s son, Harry, for life, for the support of his family, and on his death to pay over the same in equal portions to his children. The question was, as between a creditor of Harry and his children, who took the unapplied and accumulated income. It was held that the children took it, and that the word “ same ” manifestly included not only the body of the trust fund, but also any unexpended income, though there was no direction for accumulation. These cases will suffice to show the manner in which analogous cases have been decided by some American Courts of high reputation, and to relieve me from the fault of dissent upon fanciful or trifling grounds.
1 agree with my brothers that Milligan's case, in 74 Md., is distinguishable from the present case in the express direction to accumulate till Milligan reached twenty-two and then to invest in trust for him for life, and after his death to his children, but I do not agree with them that there is: anything in Fairfax v. Brown, 60 Md., which is opposed to-the conclusion I have reached.
In that case there was no question as to the estate which Harriet took, but simply whether it was vested or contingent. Here the question is not as to vesting, but as to what the estate was, which vested ; that is to say, whether the estate which vested in the unapplied income was a life-estate only on the ground tnat the testator’s will make it a part of the corpus in which he gave her only a life-estate ; or whether it was an absolute estate, such as the will did give her iru the income actually applied or paid her, and which it would have given her in the wl ole income if that in the discretion of the trustees, or of the Court had been applied or paid to her. 1 agree that the same rules of construction which de *162 termine the quality of an estate, whether for life or in fee, are equally applicable to estates placed in trust, and to those which are not, but this expression of the Court, to be found in 60 Md., must be taken with the qualification thereto annexed, “ except so far as the creation (the character and purposes) of the trust may throw light upon the intention of the testatorand I have already sought to show how in my opinion the light thus derived sustains the views I have expressed.
I think th e pro forma decree should have been reversed, and the petition dismissed.
(Filed May 8th, 1899).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9866195. Public record. Not legal advice.