Barnum v. Barnum

Weisel, J., delivered the opinion of this Court. The controversy in this case arises upon the construction of the will of the late David Barnum, of Baltimore, the founder and proprietor of the City Hotel of that city. It was executed on the 29th of August, 1843, with a codicil made ou the 2nd day of September following. They were admitted to probate on the 13th day of May, 1844.

After a careful examination of these papers, as spread ¹⁶⁴ out in the record, we can present the following as an analysis of them, by which their provisions will be the more clearly understood, and the intention of the testator more readily ascertained. The will and codicil alone furnish the facts in the statements which this analysis contains. The principal part of his estate was the City Hotel buildings and grounds in the city of Baltimore, and the furniture and chattels in that hotel. To this part of his estate his entire will and codicil relate, with the exception of clause fourth, (save its concluding sentence,) and clauses fifth, sixth and seventh.

The eleventh appoints executors, but they have duties to perform, in certain events, in relation to this property. The controversy is about this portion of his estate. He had a family. A wife and children named in the ■will, among whom, and their representatives, in case of their deaths, the nett rents of the hotel were to be distributed, composed, as we may fairly conclude, the family he had in contemplation when he used the term.

He had debts to provide for, as therein declared. These were of two classes, a City Hotel stock debt and his general debts. He undertook to make a disposition of this City Hotel property and furniture in a way which, in his judgment, would prove a sure and better resource for his family. In doing so, he did not forget or overlook his duty to his creditors of both classes; but whilst providing for his family from the rents and profits of the property, he primarily charged these with the payment of the regularly accruing interest upon the City Hotel stock, and of his general debts.

He introduced this plan by an expression of a desire, at the beginning of the first clause of the will, that his City Hotel property in Baltimore should be permanently conducted, after his death, as a hotel, and of his ¹⁶⁵ belief that the property thus employed would prove a sur© and better resource for his family. The plan is set out in the first, second, third, eighth, ninth and tenth clauses, and the last paragraph or sentence of the fourth clause of the will, and the entire codicil. These should be read together. The second clause refers to the first clause alone, as containing his views or plan ; but it is very manifest that the other clauses here specified and the codicil, would share the fate of the first, by the application of the second clause, whenever declared operative to disappoint those views.

Disregarding, then, at present, the second clause, and reading the other clauses above designated, and relating to this property, together, we discover his disposition of it to he this : He devised all his said hotel property, real and personal, to two trustees, his wife and his son, Ephraim K. Barnum, and the survivor and the survivor’s heirs. By clause tenth, the continuance of the trust is provided for, in case of the death of both of said trustees. The property thus devised is described as “all the buildings of said City Hotel, and all the grounds thereof, and all the furniture, and all other chattels of said hotel, now or hereafter attached to it or used for it.” The trusts are declared. The trustees were to lease the said property and apply the rents in a specified mode.

With this view he divided the buildings, &c., into what he devoted to hotel purposes, and what he designed for other uses, calling or distinguishing the former as the hotel part of the property. The hotel part was not to “include any of the offices or apartments of the basement story of the City Hotel buildings, save only what was used for the lower bar and lunch-room of the hotel, and the apartments used for the culinary and other purposes of the hotel buildings.” All else, including furniture and chattels, are denominated in the will as ¹⁶⁶ “the hotel part of said buildings and grounds, furniture and chattels.” This hotel part the trustees were to permit Zenus Barnum and Andrew McLaughlin, (or one of them, if both would not agree to be tenants.) to use, occupy and enjoy as tenants, upon condition that they would conduct it as a hotel, and for the term of three years, at the yearly rent of ten thousand dollars, payable quarterly; and if they, or either of them declined to rent it, or taking it, their tenancy should by any means be terminated, the trustees should, from time to time, during the period hereafter mentioned, lease the said hotel part for terms of years not exceeding ten years, for such yearly rent as his executors or administrators, with'the will annexed, should approve, to any person who they should be satisfied would well conduct it as a hotel; the rents under all the leasings to be primarily chargeable, in exoneration of all his other estate, real and personal, with the interest on the City Hotel stock and his general debts. After deduction for the interest on the hotel stock and his debts, the trustees were directed to apply annually the rents of the said hotel part as follows: Three hundred dollars annually to his widow, in quarterly payments, in consideration of her ownership of a piece of ground constL tuting a part of the hotel premises, (with power in her to take possession of it and use or sell it, in case of default in any payment; ) and of the residue, one-third to his wife for life, and the other two-thirds “in equal shares to and among his children and their respective heirs (per stirpes,) Eliza Stanard, Francis McLaughlin, Ephraim Kirby Barnum, Richard Barnum and Augustus Barnum;” these children and their respective heirs in like manner being •entitled at his wife’s death to her one-third of the said ¡rents. 'The rents of the offices and rooms in the basement, not ¹⁶⁷ included in the hotel part, he devised as follows: of room No. 4, to his daughter Frances McLaughlin and her heirs; of room No. 5, to his daughter Eliza Stannard and her heirs ; of room No. 6, to his son Richard Barnum and his heirs; of room No. 10, to his granddaughter Frances Waterman and her heirs; of room No. 9, to his grandson David McLaughlin and his heirs ; of room No. 11, to his son Augustus Barnum and his heirs ; of rooms Nos. 7 and 8, to Ephraim K. Barnum and his heirs, (in case the testator should sell the coal land devised to him in the 6th clause of the will;) and of office No. 3, to Zenus Barnum for Ms life. He directed that if the devise of the rents of said rooms 7 and 8, to his son Ephraim, should not take effect, they should he deemed part of the general residue of his estate; and that the trustees should from time to time rent out said offices or rooms, or allow the same to be done by the respective devisees of the rents thereof.

By the 8th clause or article, a discretionary power is given to his executors or administrators, c. t. a., to mortgage the City Hotel buildings, furniture and chattels, on such terms as they might deem expedient, to obtain money for paying his general debts, and then to set apart such portion of the rents of the hotel part of said buildings as they might deem expedient, for reducing the principal of the mortgage as well as paying the mortgage interest, either by way of actual payment to the mortgagees, or of a sinking fund to accumulate for the eventual extinction of the mortgage principal. The proceeds of sales of his country seat, on the Harford turnpike,. (4th clause,) are also charged with the payment of these debts in case the arrangement for the purpose, in the 1st clause, should prove impracticable, or if money could not be procured by mortgage as above. These two latter modes to he first availed of if practicable.

The ¹⁶⁸ tenants were to be bound to keep the furniture and chattels in good condition as delivered to them, and to replace such as should be lost or destroyed, or rendered useless by wear or tear, except by fire, against which risk the trustees were to keep the furniture and chattels insured in an amount deemed prudent, as also the said City Hotel buildings. The period during which this leasing was to take place, and this trust to continue, was to be ‘‘so long as his said children, or any children or descendants of them, or of any of them, left by them, or any of them, at the death of them, or any of them, shall live; it being understood that any lease made during the period aforesaid, shall have full effect and continue for its stipulated term, notwithstanding the cessation of all of said lives before the end of the term.” We may observe here, though it may not be material in the examination of the questions before us, that the various provisions made for the payment of his general debts, do not interfere with the trust. That is still to subsist. If a mortgage were effected, these debts, by that means, would be consolidated and bind the hotel property in the hands of the trustees, and the rents would be made applicable by them to the consolidated debt and its interest, in the mode specified in the 8th clause, instead of in the way contemplated in the 1st clause or article.

By this clause, the executors or administrators, cum, testamento annexo, were to approve of the yearly rent for which the trustees were to lease the hotel part of the property, ( except that for the three first years to Zenus Barnum and McLaughlin.) By the 8th article, the collateral power was conferred upon them to mortgage, if they deemed it expedient, the City Hotel buildings, furniture and chattels, to pay his said debts. .They were the proper, legal parties to pay debts, and this may explain why the testator, in providing assets for the purpose, conferred upon them these powers of approval and control over the property. The hotel stock ¹⁶⁹ debt, it seems, was to remain in its original form as a distinct, peculiar debt, the rents applicable to the interest only on it. His intention, however, appears to be, not to extinguish his general debts by applying all the rents of the hotel part primarily to that object, for his family was to he supported at the same time. If an annual partial application proved too slow, and creditors could not wait, then a mortgage could. be resorted to.

If that failed, or when made were passed to a foreclosure, then the avails of his country seat, on the Harford turnpike, should he brought into requisition for this purpose. This, we consider, is the purport and reading of the will in the clauses mentioned respecting the City Hotel property, real and personal, and constitutes the testator's plan or views for permanently conducting the hotel daring the period described, as a sure and better resource for his family, including a provision for the payment of his debts at the same time. For these the said property would have been legally hound by the testamentary and chancery laws of Maryland, a condition which its owner would not likely disregard or overlook in making a settlement for his family. The first and very important question which arises on this statement of the contents of the will, and which has been most ably discussed at the hearing of this cause, is whether the period described in the will through which the leasing by the trustees is to run, transgresses the rule of law against perpetuities ; whether it exceeds a life or lives in being at the testator’s death, and twenty-one years and the allowed fraction of a year afterwards.

That period is thus described : “and the period during which my trustees and their heirs and successors shall have the power, and are required to lease as aforesaid, shall be so long as my said children, or any children or descendants of them, or of any of them, left by them, or any of them, al the death of them, or ¹⁷⁰ any of them-, shall live; it being understood that any lease' made during the period aforesaid, shall have full effect and continue for its stipulated term, notwithstanding the cessation of all of said lives before the end of the term” If; was very ingeniously pressed upon the Court by the counsel for the appellees, in the argument, that a- fair philological examination of this sentence would confine the time within the rule; and that the word left, by assigning’ to it a past signification and allowing the will to speak as ef the day of the testator’s death, would indicate an intention to point to his own children, and children and descendants of children living at the time of his own decease ; and that upo-n this construction the powers of the trustees would not* and were not, intended to endure beyond the lives of persons who should, at the moment of the testator’s death-, answer the-description of children or descendants of ehildren; in- other words that descendants of children, horn after the death of the testador, were not to he emlwaced within the continuance of the powers to- lease; and that the word “left” is not of the same import in the will as if the language were, “may he left by them., (the children,) at the period of their (the children’s) deaths, respectively.” But, we think, this clause will not admit of this interpretation^ The participle left must have reference to and qualify the word with which it stands connected in the sentence, express or implied.. And here the persons designated as left are the children or descendants of any of hi3 ehildren, and the time of being left is so plainly expressed that no dou-ht can well arise or be entertained, viz : at the death of any of his said children. If the testator meant otherwise, and- intended to confine the time to his own .death, he-would not have resorted to phraseology so elaborate as that used by him, when the simple phrase of living at my death, would have at once conveyed his meaning. Big; own death* and the death of any of his children, ara ¹⁷¹ %wo distinct events.

He lias used language plainly and distinctly, as we think, to express the latter. Upon what rule of construction then-can it he applied to the former ? The time or period, therefore, for continuing this trust or power to lease the hotel property may extend so as to embrace persons and lives not in esse at the time of the testator's death, — descendants born after that event. If an estate he so limited as - by possibility to -extend beyond 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) afterwards, during which time the property would he withdrawn from the market, or the power over the fee suspended, it is a perpetuity and void as against the policy of the law, which will not permit property to he inalienable for a longer period.

The question whether an estate is a perpetuity, generally arises in cases in which a future contingent -estate or-executory devise is limited upon a fee, and if the contingency upon which the executory estate is to vest, is mot necessarily to happen within the time fixed by the rule as the legal boundary, then the precedent estate or-estates are denominated a perpetuity, and-the executory estate or devise fails for want of a legal estate to support it. In all such cases, to give effect to the limitation over, the contingency-mwsi happen within the time prescribed by the rule. If it ma¶ happen after that time,