Burnham v. Baltimore Gas & Electric Co.

Bruñe, C. J., delivered the opinion of the Court. The plaintiffs, Burnham and Lee, brought a suit in ejectment, stated to be to their own use and to the use of all their cotenants as owners of a parcel of land in Baltimore County, against the defendant, Baltimore Gas & Electric Company (formerly known as Consolidated Gas Electric Light and Power Company of Baltimore and sometimes referred to below as the “Electric Company”), which maintains and operates a power transmission line across the property. The plaintiffs appeal from a judgment for the defendant rendered on its motion for a summary judgment. The suit grows out of the grant of a right of way for the power line, which was made by Mary Ann Burnham (Mrs. Burnham) to the Electric Company by a deed dated November 11, 1924.

The plaintiffs assert that Mrs. Burnham was only a life tenant of the property and that the Electric Company’s right to use and maintain the power line across the property in question ceased at the time of her death in ⁵¹² 1943. The Electric Company, on the other hand, claims that Mrs. Burnham was not merely the life tenant of the property, but was the owner in fee, by virtue of the Rule in Shelley’s Case, of a one-half undivided interest in the property; and it has filed a plea upon equitable grounds asserting that it is entitled to have the land partitioned and to have that part of the land which the power line occupies apportioned to the Burnham heirs, so that it may receive the full benefit of its deed from Mrs. Burnham. The plea further asserted that neither of the plaintiffs was entitled in equity and good conscience to a judgment against the Electric Company in this case and that if such a judgment were rendered, the defendant would be entitled to equitable relief against it. This plea was filed some six months after the defendant’s initial plea of not guilty and its disclaimer of any interest in the property other than the right of way.

We were informed that there is now pending a partition suit in which final action is being deferred pending the outcome of this appeal. On the same day on which it filed its plea on equitable grounds the defendant also filed a petition to have the case set down for hearing on a question of law which, in brief, was whether or not the Rule in Shelley’s Case was applicable to the deed under which Mrs. Burnham and the plaintiffs derived title. This question, the defendant said, “may be determinative of the rights of the parties hereto.” A hearing was held on this question, and it appears to have been treated as the only question'—at least at that time—requiring decision. The trial court filed an opinion sustaining the Electric Company’s position.

The motion for summary judgment was subsequently filed and granted. It is necessary to state briefly the facts and the pertinent parts of the deeds out of which this controversy grows. The common ancestor of both of the plaintiffs (as well as of all other persons whom they claim to represent) was Eliza Ann Lee, who died intestate in 1874, predeceased by her husband. Mrs. Lee had two daughters.

The elder, Priscilla, was born on February 3, 1843; the younger, Mary Ann, was born on April 9, 1850. Priscilla Lee died intestate in 1861, leaving ⁵¹³ as her sole heir her son, Frank Lee, from whom the plaintiff, Charles Frank Lee, J'r., and other descendants of Priscilla now living are descended. Mary Ann married one Elijah Burnham. The plaintiff, Albert Washington Burnham, is one of fourteen children of that marriage and one of numerous descendants now living of Mary Ann, who died intestate on July 15, 1943, having been predeceased by her husband.

On June 28, 1852, one Daniel Warfield and Nancy War-field, his wife, in consideration of the sum of ,$804.08, did “give, grant, bargain and sell” the premises in question to Eliza Ann Lee, her heirs and assigns by a deed or so-called “indenture,” the habendum clause of which read as follows: “To have and to hold the said parts of tracts of land and premises above mentioned and described unto the said Eliza Ann Lee, her heirs and assigns forever. In Trust to and for the uses intents and purposes that is to say in trust for the use and benefit of her two infant children Priscilla Lee and Mary Ann Lee for and during their joint natural lives and the Lile of the survivor of them, without impeachment of or for any maner [sic] of waste and after the death of the said Priscilla Lee and Mary Ann Lee, To Have and To Hold the said herein described land and premises to their heirs, in fee simple.” On November 11, 1924, the surviving sister, Mary Ann (Lee) Burnham (Mrs. Burnham) granted to the Electric Company the right of way above referred to. The deed was duly recorded and the Electric Company constructed, and ever since has operated and maintained, an electric transmission line across the property. The principal question argued in this Court, as in the trial court, was as to the nature and extent of the interest or interests which Mrs. Burnham held in the property on November 11, 1924, when she granted the right of way easement to the Electric Company.

Primarily, the answer to this question turns on the Rule in Shelley’s Case. Though that Rule has been abrogated by statute in this state (Acts of 1912, Ch. 144), it was in force when the deed to Eliza Ann Lee was executed in 1852, and we must turn back to the law as it ⁵¹⁴ stood prior to the effective date of that statute, to ascertain the interests created. See Bowman v. Weer, 204 Md. 344, 350 , 104 A. 2d 620 , the most recent óf a number of cases decided by this Court, in which this proposition has been recognized. There is no dispute on that point in this case.

The Rule itself has been stated and restated in a number of cases. As Miller on Construction of Wills in Maryland, § 351, points out, its most generally approved form, at least in this State, is that given in 1 Preston on Estates, pp. 263-264, as slightly abridged and adopted by Chancellor Kent in 4 Comm. [14th Ed. *], p. 215. It has been quoted repeatedly by this Court (See Williams v. Armiger, 129 Md. 222, 226 , 98 A. 542 , and cases cited in note 1 to § 351, Miller, op. cit.), and reads as follows: “When a person takes an estate of freehold, legally or equitably, under a deed, will or other writing, and in the same instrument there is a limitation by way of remainder, either with or without the interposition of another estate, of an interest of the same legal or equitable quality, to his heirs, or heirs of his body, as a class of persons to take in succession, from generation to generation, the limitation to the heirs entitles the ancestor to the whole estate.” The Restatement, 3 Property, § 312 and the Comments thereon, deal with the Rule comprehensively, and bring out the possible difference in time under the rules stated in Subsections (1) and (2) of § 312 between the creation of a life interest and of a vested remainder in the ancestor and the merger (or coalescence as it is often called) of the life estate and of the remainder interest. Such merger may be postponed by an intervening estate, but the operation of the Rule is not barred.

See Comments 1 and m, pp. 1760-1761. Nor does the fact that the life and remainder interests otherwise within the Rule are undivided interests in land prevent the operation of the Rule. See Comments r and s, pp. 1767-1770, and the illustrations therein set forth. See also 1 Preston on Estates, p. 318; Simes and Smith, Law of Future Interests (2d Ed.), § 1556, p. 463; Stafford v. Martin, 75 Md. XII, reported in full in 23 A. 734 ; Waller v. Pollitt, 104 Md. ⁵¹⁵ 172, 64 A. 1040 (conveyance to husband and wife “for their joint lives and the life of the survivor of them; and to their joint heirs **”); 47 Am.

Jut., Shelley’s Case, Rule in, § 27, pp. 810-811. The chief controversy in the present case with regard to the applicability of the Rule is whether or not both estates were of the same quality—that is both legal or both equitable, or one legal and the other equitable. The plaintiffs contend that the life estates to the daughters of Eliza Ann Lee were equitable and the remainders to their heirs were legal; the defendant contends that both were legal, and it further contends that even if either estate was equitable, both were equitable. The plaintiffs base their contentions mainly on the fact that the life tenants were both infants and both females and, to some extent, upon the language of the habendum clause “without impeachment of or for any manner of waste.” They argue that despite the complete absence of any active duties or powers imposed or conferred upon the trustee by the 1852 deed, it would be reasonable to infer that the grantors intended to set up a trust for the benefit of these infants, aged nine and two in 1852, during their minority and to continue it after they reached their majority so as to protect their property interests in the probable event of their marriage.

They also urge that the term “without impeachment of waste” manifests an intention to create less than an absolute estate in the life tenants. Taking up the last contention first, we think that the language “without impeachment of waste” as used in the 1852 deed is of no real significance as indicating an intention to create a trust and that it is without effect as an obstacle to the operation of the Rule in Shelley’s Case. As is stated in Miller, op. cil., § 352, p. 996, headed “Words and provisions showing intent to create a life estate only”, “The rule in Shelley’s case is a rule of tenure which is not only independent of, but generally operates to subvert, the intention. No matter how evident the intention to create but a life estate may be, when the words actually used bring the gift ⁵¹⁶ within the rule, the intention must give way and the fixed rule must be followed.” The learned author cites a number of cases in support of this and like statements of the operation and effect of the Rule, and on page 997 he continues: “Thus, * * * a declaration * * * that the estate shall be without impeachment of waste will not vary the legal import of the technical words, or prevent the remainder to the heirs from becoming an executed estate in the ancestor; * * *.” Clarke v. Smith, 49 Md. 106, 120 , cited by Mr. Miller, states this as a rule of law, although the phrase “without impeachment of waste” was not actually used in the will there under consideration.

Whether a trust is active or passive is a question which frequently arises in cases involving the Statute of Uses, because of the rule that the Statute will not execute a use where the trustee has active duties to perform. In the instant case, as already noted, the deed of 1852 confers no powers and imposes no duties upon the trustee, nor does it even provide that she shall convey title to the beneficiaries at any time. Accordingly, unless one or the other of the grounds upon which the plaintiffs seek to imply active duties on the part of the trustee is well taken, the trust is, we think, clearly passive. Warner v. Sprigg, 62 Md. 14 ; Owens v. Crow, 62 Md. 491.

(The cumulative citation of authorities seems superfluous.) The fact that the beneficiary of a trust is an infant is not of itself enough to convert a trust which imposes no active duties upon the trustee from a passive trust to an active one. Hooper v. Felgner, 80 Md. 262 , 30 A. 911 ; Warner v. Sprigg, supra; Owens v. Crow, supra; Lee v. O’Donnell, 95 Md. 538 , 52 A. 979 ; Potomac Lodge v. Miller, 118 Md. 405 , 84 A. 554 . Nor is the fact that these beneficiaries were young girls who might later marry, plus the fact that at the time of the execution of the 1852 deed, legislation protecting the interests of married women in the separate use and enjoyment of their property had not then been passed, sufficient to manifest an intention to create an active trust. The appellants rely heavily upon Ware v. Richardson, 3 Md. 505 , in support of the contrary view.

There (as here) the deed was executed ⁵¹⁷ prior to the enactment of Chapter 245 of the Acts of 1853 (now included in Section 3 of Article 45 of the 1957 Code), which first permitted a married woman to have the sole and separate use of her property without the intervention of a trustee. The deed of trust in that case was to a trustee for Mrs. Richardson, a married woman, for “her own proper use and benefit, notwithstanding her coverture, * * * without the * * * control of her present or any future husband * * * as fully as if she was sole and unmarried,” and after her death to the use of her heirs. It was held that the deed (which used both the terms “bargain and sell” and “enfeoff”) constituted a deed of feoffment, that there were active duties to be performed by the trustee in order to support the independent character of the wife’s interest, that her interest consequently was equitable and that the Statute of Uses therefore did not operate to vest a legal life estate in her, and hence