Abell v. Abell

McSherry, J., filed the following dissenting opinion: It is with the profoundest deference that I venture to dissent from one of the conclusions reached by a majority of the Judges before whom this case was argued; and though in cases of this character a dissenting opinion is of little or no practical use, I think I ought to state briefly the grounds upon which my view is founded. . The proceeding is an amicable one. It was instituted by the acting trustees named in the will of the late Mr. Abell. Its object was, not to strike down or destroy the will, but to obtain the aid of a Court of equity in the administration of the trusts and to procure a jxxdicial construction of some of the provisions contained in the will.

The trustees were anxious to be under the pi-otection of a Coixrt of competent jurisdiction in performing their duties, and they were eqxxally desirous that the doubtful portions of the will should be judicially interpreted for their guidance. They accordingly filed the bill which inaugurated this proceeding. By the sixteenth clause of his will the late Mr. Abell gave the entire residuum of his large estate to his three sons and the survivors and survivor of them, and the heirs, execxxtors and administrators and assigns of the survivor, upon trust, to value the whole and then to set apart five-eighths thereof within a reasonable time after his death, and to invest the same in the manner desig ⁶⁶ nated by him, and then in further trust to collect the income and pay therefrom all proper charges a,nd expenses, and the residue, or net income, to pa.y over semiannually in equal parts to each of his five daughters (whom he mentioned by name) as an inalienable personal provision “for the period of her natural life; and after the death of any one of my said daughters, in trust to hold one-fifth of the said five-eighths parts of the said residue and remainder of my estate for the child, if only one, of the said daughters so dying, or for the children, if more than one, of the said daughters so dying, share and share alike.” The remaining three-eighths of the residuum he gave absolutely to his three sons. How long did the testator intend the trusts created by the sixteenth clause to continue?

Were they designed to be indefinite in duration ? Do they extend beyond the lives of the daughters and include the lives of their children? Or do they terminate as to each daughter’s one-fifth of the five-eighths upon her death ? There is no word or syllable in the whole will which can justify the inference that the testator intended the trusts to last forever.

Nor is there any thing in the instrument, it seems to me — and with great submission I say it — which carries the trusts, as to any daughter’s one-eighth, a single hour beyond the expiration of her equitable life estate. Whilst it is true that large discretionary powers are given to the trustees by the eighteenth, nineteenth, twentieth and twenty-first clauses of the will, with respect to the investment of the trust property, and in reference to the selling, mortgaging, leasing and encumbering thereof, those powers are subordinate to, and merely incidents of, the main and principal duties to preserve the estate and to collect the income and pay it over, in equal parts, to the daughters, for whose protection the testator was chiefly solicitous. These powers ⁶⁷ were intended to further and promote the trusts, and not to engraft additional trusts upon those created hy the sixteenth clause. It is against every settled rule of construction to treat these subsidiary powers as having the effect of stretching the trust beyond the limits marked hy the active duties assigned to the trustees; and consequently, such powers, of necessity, become extinct when the duties upon which they are dependent .are at an end. “Courts will abridge the estate when words of inheritance are used, if the execution of the trust does not require a fee; and so they will enlarge the estate if no words of inheritance are used.” Perry on Trusts, sec. 320.

The duty to value the whole and set apart five-eighths in trust for the daughters is the first-duty imposed upon the trustees. When those five-eighths shall have been set apart that trust will he performed. The duty to preserve the corpus and to collect and then pay over the income to the daughters is a. distinct trust, and every power possessed hy the trustees is subordinate to these primary objects. These subsidiary powers cannot enlarge the active duties of the trustees without making the incidental powers, and not the prescribed duties, the measure of the trusts’ duration.

The trustees are to pay over the income in equal parts to each one of the five daughters ‘ ‘ for the period of her natural life. ’ ’ But after the death of a daughter to whom, by ■the terms of the will, are the trustees to pay the income previously payable to the deceased daughter in her lifetime ? To her children ? The will does not say so. If she dies without having had children, then to whom is it payable ?

The will is absolutely silent on that subject. The duty of collecting and paying over the income by the trustees, is confined in express terms hy the sixteenth clause, not to the period covered by the joint lives of all the daughters, and the life of the last survivor, hut distinctively, as to each “equal part” of the net ⁶⁸ income, to the period of the natural life of the particular daughter to whom that equal part is payable. Not another clause in the will relates to this active duty imposed upon the trustees, and in so far as the language used by the testator makes manifest his intention, the explicit declarations in several clauses following the sixteenth are quite sufficient to indicate that he designed the trusts as to each daughter’s one-fifth of the five-eighths to last no longer than the duration of the equitable life estate which he created for her. Thus in the eighteenth and nineteenth clauses he speaks of the trusts as created for the benefit of his daughters, and in the twentieth, for his daughters and each of them, and in the twenty-first clause, as “respective trusts',” without a. suggestion that the trusts were established for, or were believed by the testator to include, the daughter’s children, or any one else but the daughters themselves.

The absence of a provision in the sixteenth clause or elsewhere carrying the active duties of the trustees as to each daughter’s one-fifth of the five-eighths beyond the period of her natural life, and the subsequent explanatory declarations, just alluded to, carefully and repeatedly defining the duration of the trusts by describing them as having been created for each of his daughters, make it morally certain that he intended to exclude from the scope of those trusts all other persons than those expressly named. But this is not all: “Where an estate is given to trustees and their heirs in trust to pay the income to A during her life, and at her decease to hold the same for the use of her children, or her heirs, or for the use of other persons named, the trust ceases upon the death of A, for the reason that it remains no longer an active trust; thé Statute of Uses immediately executes the use in those who are limited to take it after the death of A; and the trustees cease to have anything in the estate, not because ⁶⁹ the Court has abridged their estate to the extent of the trust, but because having the fee or legal estate, the Statute of Uses has executed it in the cestui que trust.” Perry on Trusts, sec. 320; Ware vs. Richardson, 3 Md., 542 . The Statute of Uses is applicable to wills. 3 Jarman on Wills, 50; Ware vs. Richardson, supra. Now, upon the death of each daughter the sixteenth clause of the will gives that daughter’s one-fifth of the five-•eighths to the trustees “in trust to hold * * for the child, if only one, of said daughter so dying, or for the children, if more than one, of said daughter so dying, share and share alike. ” No duty is imposed upon the trustees to he discharged towards or in hehalf of the child •or children of a deceased daughter.

There is no direction to pay over the income to such child, or to invest it; nor is there any authority given the trustees to collect the income after the death of the daughter. The property is given to the trustees “in trust to hold” for the child or children and nothing more. This is a mere naked trust without active duties of any kind. Under such circumstances the Statute of Uses, 27 Henry 8, ch. 10, transfers the use into possession by converting the •estate or interest of the cestui que trust into a legal estate and by destroying the intermediate estate of the trustee.

In other words, the statute immediately executes the use in the child or children and upon the death of the mother, the estate of the trustee is at an end. When the purposes for which it was created are satisfied, “the estate of the trustee ceases to exist, and his title becomes extinct.” Doe vs. Considine, 6 Wall., 458 ; Young vs. Bradley, 101 U. S., 782 ; Long, et al. vs. Long, et al., 62 Md., 64 ; Doe dem. White vs. Simpson, 5 East, 163. As a consequence of these principles a deceased daughter’s one-eighth is freed and disengaged from any trust whatever.

And if this be so, then the trust as to each daughter’s one-eighth must terminate when she dies and can ⁷⁰ not, under established legal principles, be extended beyond that period. Whilst this conclusion would result, each time a daughter died, in separating her one-eighth from the rest of the trust property, and mightj therefore, occasion much inconvenience and expense, still, if that is what the testator meant, these considerations ought not to defeat his intention. There is still another view of the subject. There is no provision made by the will for the event of a daughter dying without having had issue.

Should such an event happen there would be an absolute intestacy as to that one-eighth of the residuum of the estate; and the property would devolve upon the heirs-at-law or next-of-kin of the deceased daughter. But would it devolve upon them subject to any trust? If so, what trust, and by virtue of ■which provision of the will? If the trusts continue as to all the daughters’ eighths until the death of the last survivor, then, without there being a single word in the will limiting over to any one, either in trust or otherwise, the eighth of a daughter dying without having had issue, that eighth would be kept in trust and withheld from the possession of those who would be entitled to it, and who, including the sons of the testator, would thereupon be treated as cestuis que trust, though no one of them was named, indicated, described or ever hinted at as occupying, or being ever intended to occupy that relation to that one-eighth.

There is not a line in the will directing such an eighth to be held in trust longer than the life of the daughter for whom it was given. If this be so — and it seems to me that it is — then the testator has not fixed as to the daughters who may die without having had issue, any other period for the termination of the trusts as to their eighths, than their respective deaths. But he ha's joined all the daughters together in the very same sentence when he created the trusts, and has fixed no different limit for the expiration of the trusts ⁷¹ as to those who may and those who may not have issue. Unless, then, he intended the trusts to continue under a condition which he has not named, to wit: the case of a daughter dying without having had issue, he manifestly did not intend them to continue in any event or as to any daughter’s interest beyond the duration of her equitable life estate.

Either the share or interest of a daughter dying without having had issue must he kept in trust for a period which the testator has not fixed himself — and no one else has authority to fix it — or the share or interest of every daughter must be discharged from the trusts immediately upon her death. This seems to me to be inevitable. Had the testator desired to carry the trusts beyond the life of each daughter as to her eighth, he could easily have said so — but he did not say so; and that he did not is apparent upon an inspection of his will, and is made overwhelmingly certain by the fact that the learned counsel for the trustees while suggesting in their arguments various periods for the termination of the trusts, were unable to select and agree upon any of them as the correct or even probable one. Ho one knew better than the distinguished lawyer who drew the will how to say in plain terms that the trusts should continue until the death of the last surviving daughter, if that had -been intended.

But technical words were employed which for centuries have been held to execute the use in the cestui quetrust when no active duties are imposed, and thereby, to terminate the estate of the trustee upon the expiration or cessation of the active trusts; and the conclusion seems to me irresistible that such words were purposely and properly used to limit and define the duration of the trusts in respect to each daughter’s one-fifth of the five-eighths to the life of each daughter, respectively. I agree full}- to the disposition made of the other questions involved in the case. (Filed 12th January, 1892.) Fowler, J., delivered the opinion of the Court. The hill in this case was filed by the executors and trustees of the late Arunah S. Abell for the purpose of obtaining a judicial construction of his will, and to secure the aid and direction of a Court of equity in the administration of his large and valuable estate.

Counsel have exhibited much learning and great research both in their exhaustive briefs and elaborate oral arguments. It has become a trite observation that the citation of authorities in cases involving the construction ⁵⁷ of wills gives but little, if any, assistance to the Court. But this rule, which seems to be so well settled is “more honored in the breach than the observance. ’ ’ ■ A number of interesting and important questions have been presented, supported by numerous authorities; but there are only two of these questions about which there has been any serious contention. The first is as to the period of time during which the trusts created by the will are to continue, and the second relates to the disposition of the income of the trust estate for the first year, that is to say, whether such income from the real estate can be properly applied to the construction of new buildings and other permanent improvements, and whether any of the income from the trust estate accrued since the death of the testator can be applied to the payment of funeral expenses, debts or legacies.

These questions, arising as they do upon a bill