Bennett v. Baltimore Humane Impartial Society & Aged Women's & Aged Men's Homes

McSherry, C. J., delivered the opinion of the Court. The question arising on the record now before us is this : Is the will of Samuel Turbutt void and inoperative ? The will; omitting the formal clauses, is in these words : “After my lawful debts and funeral charges are paid I give, devise and bequeath all the rest and residue of my estate both real, and personal to the Baltimore Humane Impartial (Society)’ and Aged Women’s and Aged Men’s Homes ; provided the trustees and managers of said homes admit and receive into said homes during the existence or continuance of said homes one aged man or one aged woman each and every year for each and every four hundred dollars of the income to be derived from the property real and personal hereby given, devised and bequeathed ; said aged person so to be admitted shall not be required to pay any fee for admission or outfit, and provided also that such aged person so to be ¹⁸ admitted shall have always through life maintained, a good moral character and that his or her penury shall not have been the result of his or her vicious or immoral conduct.” This provision is assailed by the collateral next of kin and heirs at law of the testator, who left no descendants, upon the following grounds : First, that the' will creates a trust in.the subject-matter of the devise and bequest; secondly, that the trust thus created is void, because the beneficiaries ■are uncertain and indefinite ; and thirdly, that the trust is void because it is a perpetuity. It is obvious at the outset that the testator did not intend these contesting parties, who are his cousins, to have any portion of the estate which he left.

His intention was that the legatee and devisee named by him should possess it. If that legatee and devisee does not get the property disposed of by this clause it will be because the testator’s intention is frustrated. Ordinarily the task which devolves upon a Court in dealing with the interpretation of a last will is to ascertain the testator's intention ; and the duty then imposed is to give that intention effect, if possible; but in the pending controversy whilst the intention is apparent ■enough, the object of the proceedings avowedly is, not to give that intention effect, but to subvert and to disregard it altogether. There are, of course, instances where this has been done, because the rules of law imperatively required that it should be done; but when done, it has always been done with great reluctance.

Courts are not, or ought not to be, astute in searching for a construction which nullifies a .will if there are other equally reasonable interpretations which uphold it. When it comes to the final analysis, as will be seen later on, the main contention of those who assault the will hinges on a meaning which they ascribe to -a particular word, though that meaning is not its primary ■or ordinary signification. So we begin this investigation with two propositions confronting us, namely, that if the appellants get any part of the testator’s estate they get it By defeating his intention that they should not have it; and ¹⁹ they defeat his intention by ascribing to a word he employed an unusual and inappropriate meaning, which the context does not necessarily demand and which the intention disclosed by the will does not require that the word should have. We need not pause to discuss the proposition that if this will creates a trust in favor of undefined and indefinite objects the trust is simply void for uncertainty and the next of kin and heirs at law will take the estate.

That doctrine is too well settled in Maryland to need discussion at this day. So it comes to this: Has a trust been created ? Is the gift to the Homes a gift upon a trust ? If there is no trust the case is at an end.

A trust may be created either by the use of appropriate technical words which, of their own proper vigor, indicate that a trust was designed to be raised ; or, in the absence of such words, a trust may be created by other language when the purpose to establish it is otherwise sufficiently apparent. In both instances, however, it always becomes a question of intention as to whether a trust exists. If there be a manifest design to establish a trust then a trust will be declared though no apt technical words are employed ; and if there be an equally manifest design not to establish a trust, then no trust will be declared though the words employed would, but for the contrary intention, be sufficient to create a trust. Now, in the clause under consideration, no trust is declared in technical terms.

That is conceded. Whilst no set form of words is required to create a trust, if there be an intention to create one, still there must be a manifestation on the face of the will of such an intention before a trust will be declared. The particular circumstances which denote such an intention are necessarily variant ; but when a trust of the kind relied on here is asserted it may be generally affirmed that where there is a gift to one for the use of another, or where the legatee or devisee is clearly designed to have no beneficial interest in the property given to him, a trust for the benefit of some one was ²⁰ intended to be created. And this conclusion would result either from the words used or from the legal effect of the instrument itself.

In the one case there would be an express declaration of a trust, in the other there would be a trust by construction; but in both it is essential that there should be an intention to create a trust, or none will arise. To neither of these classes does this will belong. Let us look, first, to its language, and, then, to its effect to ascertain whether from either or both a design to create a trust is apparent. The contention is that the use of the word “provided" following the gift'to the Homes creates and was intended to create a trust in favor of indefinite beneficiaries.

The natural office of a proviso is not to create a trust. Ordinarily the term signifies a condition. 19 Am. & Eng. Ency. L. 298 and cases in 'notes ; Haydon v. Stoughton, 5 Pick. 528 ; 3 Com.

Dig. 74, Con. A. 2, 76 A. 4 . The word provided may denote a trust when the context justifies such a rendering. But obviously this can only occur when apart from the word itself, the intention to fasten a trust on the gift is apparent.

Words will not be given a distorted or unnatural meaning so that thereby they may be made to create a trust, if by doing this the very trust sought thus to be created wmuld defeat the whole bequest. Words may undoubtedly be bent to subserve a manifest intention, but they cannot be bent from their ordinary meaning to create an undisclosed intention, which when thus created would nullify the will itself. The appellants rely much on the case of Stanley v. Colt, 5 Wall. 119 . That case was cited with approval by this Court in Arthur v. Cole, 56 Md. 106 .

The gift in Stanley v. Colt was to an ecclesiastical body, and it was coupled with a proviso prohibiting a sale of the devised property. But that was not all. Trustees were appointed by the testator and upon them and their successors for whose selection provision was made in the will, full power was conferred to lease the devised estate and to do all other legal acts for ²¹ the well ordering and management of the property. These trustees were clothed with the legal estate and the ecclesiastical society was simply the beneficiary entitled to receive the rents and profits.

The property having been sold, the question for decision was whether the will gave to the society an estate upon a condition which, if broken by a sale, forfeited the estate ; or whether the gift was to trustees in trust for the use of the society. It was ruled by the Supreme Court that the obvious design of the will, apparent on its face, and declared in its express provisions, was to create a trust and not to constitute a condition; and therefore the word “ provided ” was not read according to its literal