Canton v. McGraw

Fowler, J., delivered the opinion of the Court. This appeal presents a very narrow question in equity practice, but in order to get an intelligent and clear conception of the points involved it will be necessary to ascertain the exact status of the case vrihen the order appealed from was passed. On the 6th October, 1883, the original bill in this case was filed in the Circuit Court of Baltimore City for the purpose of annulling and vacating a deed made by James McGraw, then deceased, to his daughter, Susan L. Canton, the present appellant. A decree was passed December 31st, 1886, setting aside the deed for fraud, but dismissing the bill as to the portion which prays for the removal of the fraudulent grantee, Susan L. Canton, from the trusts under the will of her father, James McGraw, without prejudice to the right of the plaintiff to renew the application for such re ⁷⁴⁶ moval by an original bill for that purpose, and reserving leave also the parties to apply thereafter for a decree with fegard to the rents- and profits of the property mentioned in the fraudulent deed.

This Court affirmed- this decree. Susan L. Canton et al. v. William J. McGraw, 67 Md. 585 . For'some unexplained reason it appears that accounts of rents and profits of the trust estate of James McGraw have been filed in the case just mentioned, which, as we have seen, was brought to set the deed aside for fraud, and one of these accounts was before this Court in the second appeal, which is reported in 74 Md. 555 . The origin of this trust estate is as follows: By the will of James McGraw, the father of Susan L. Canton, she was named as executrix.

The devise to her is as follows: “I give, &c., all the rest and residue of my property unto my executrix hereinafter named in trust and confidence, &c. That my executrix, her heirs and personal representatives shall hold the same in trust for the sole, separate and exclusive use and benefit of my nine children * * * and to the end that my' executrix shall have, receive, &c., the rents, &c., of my estate, and divide the same equally, from time to time, among my nine children ***** and ft js the intent and purpose of this instrument of writing, that this trust shall continue until my youngest child shall attain legal age.” In the next succeeding item of his will, the testator provides as follows: “ It is my will and desire, and I hereby direct that when my youngest child living shall attain legal age, that my property shall be discharged and relieved from the above declared trust, and then all my said property (excluding lot on Druid Hill avenue and Morris alley) shall be divided equally among my nine children, share and share alike, including my youngest son, Bernard Howard, and my daughter hereinafter appointed executrix; and if my property cannot be equally divided, my executrix may sell a portion to effect an equal division, or may sell the whole of it, if by such sale a more advantageous partition can be secured, and to divide the proceeds of sale equally among ⁷⁴⁷ my nine children.” * * The period when the trust created by the will was to end arrived on the 20th October, 1898, when Bernard H. McGraw, the testator’s youngest child, reached his majority. Thereafter the testator’s property, freed from the trust, was to be divided equally among his children. But if it could not be so divided then his executrix was to sell a portion or all of it if necessary to effect an equal division.

The will is so clear and the language used so free from ambiguity that the testator’s intention is apparent. What then was the duty of the executrix after the termination of the trust ? She was bound to account to her brothers and sisters for the rents and profits, and it was then equally her duty to make equal division among them of the corpus of their father’s estate, or if necessary for that purpose to sell a portion or all of