Brome v. Pembroke

Irving, J., delivered the opinion of the Court. This appeal is from an order of the Circuit Court for Saint Mary’s County, overruling certain exceptions of the appellant to an auditor’s report, and the ratification thereof. By that report certain amounts were awarded to the appellees as due from' the appellant; and by the order appealed from the appellant was directed to pay the amounts awarded to the appellees. The funds in the appellant’s hands arise from the sale of certain property devised to him in trust, by the will of Thomas W. Gardiner, and the propriety of the order appealed from, depends upon the proper construction of the will creating the trust.

The will, after the usual prefatory words, reads thus: “Second, I will and bequeath to my friend, Dr. John M. Brome, all my property, both real and personal, in trust for the support and education of my minor and unmarried children, to be so held in trust until the youngest child living shall arrive to the age of sixteen years, at which time I desire and will that my property shall be equally divided among both my married and unmarried children and their heirs. Third, I appoint and name my friend^ Dr. John M. Brome, trustee and executor of this my last will and testament, authorizing him hereafter to name by will or otherwise, a trustee as successor' to himself; and I also authorize and empower him to sell or otherwise dispose of so much of my property, either real or personal, as may be necessary to pay all my just debts.” The bill charges that the youngest child of the testator has arrived at the age of sixteen, when, by the terms of the will, the property is directed to be divided. It charges that the personal estate amounted to the sum of $31'76.3|7, and that the debts of the testator amounted to $8113.60. ¹⁹⁵ It also charges that the appellant sold the whole estate, real and personal, and accounted therefor in the Orphans’ Court, but that he claimed allowances for expenditures, in support and maintenance of the unmarried and minor children largely in excess of the income of the estate, to which by law and the terms of the will, it is contended he was restricted. The lower Court sustained the view of the plaintiffs, and ordered an audit on that principle, and the order ratifying the same is the subject of this appeal.

Looking to the whole will, as we must do, for the real meaning of the testator, it is very clear that the lower Court was right in the construction thereof. It contemplates that the minor and unmarried children shall have all the proceeds of his property until the youngest child shall reach the age of sixteen. Then it provides for an equal division of his estate among married and unmarried, minor and adult children. He clearly did not design the property to be sold, except so far as the executor might find necessary to pay his debts; for the power of sale given to the trustee and executor, is wholly confined to that end.

By giving authority to sell for one