Blackshere v. Trustees of the Samuel Ready School for Female Orphans

⁷⁷⁵ Briscoe, J., delivered the opinion of the Court; The decision of this case depends upon the construction to be placed upon the I ith and 12th clauses of the last will and testament of Samuel Ready, late of Baltimore City, deceased. The object of the bill is to compel the specific performance of a contract of sale, made on the 25th of October, 1901, between the appellant and appellee, of a vacant lot of ground situate in Baltimore City. The appellee is a corporation duly incorporated under the laws of Maryland, under the name of the “Trustees of the Samuel Ready Asylum for Female Orphans,” and the object and purpose of the corporation is declared by its charter to be the founding and maintaining within the State of Maryland of an asylum for female orphans between the ages of five and thirteen years, the entire management ol which shall be vested in the trustees or corporation. Samuel Ready died on or about the 20th of November, 1871, leaving a large and valuable estate of real and personal property, a large portion of which he devised and bequeathed by his last will and testament to “The Trustees of the Samuel Ready Asylum for Female Orphans.” By the 1 ith item of his will, he devised and bequeathed to the Trustees of the Samuel Ready Asylum for Female Orphans as follows : “All the rest, residue and remainder of my-estate and property of every kind and description whatsoever, real, personal and mixed and wheresoever situate or being which I now have and hold and to which I am legally and equitably entitled and which I may have and hold and be entitled to legally or equitably at the time of my death to it the said corporation of the Trustees of the Samuel Ready Asylum for Female Orphans as aforesaid and to said corporation absolutely and forever.

It being my meaning and intention to make the said corporation the residuary legatee and devisee absolutely of this my last will and testament.” And by the latter part of the 12th clause of the will it is provided : “It is also my wish that the vacant land should be rented for terms of years or leased for ninety-nine years, under and subject to the payment of such annual ground rents, as said trustees shall deem expedient and advisable.” ⁷⁷⁶ It is admitted that the vacant lot of ground mentioned in the contract of sale of October 25th, 1901, is a part of the rest and residue of the estate devised to the appellee by the nth clause of the testator’s will, but the appellant insists that the appellee cannot convey the property by a good and merchantable title, in fee-simple, because the fifth paragraph of the 12th clause operates as a restriction upon the absolute estate, and limits the power of alienation to renting the property for terms of years, or leasing it for ninety-nine years. The appellant for these reasons declined to take the property and contends that the devise contained in the nth clause is controlled by what follows in the 12th clause, as to the power of alienation. The question then arises, what estate did the trustees of the Samuel Ready Asylum for Female Orphans take in the vacant lands under the will of Samuel Ready ? The conclusion reached, and the determination of this question by the Circuit Court of Baltimore City, we think, was clearly right, and that is, that the 12th clause of the will “was not intended by the testator to be a