Cowman v. Colquhoun

Yellott, J., delivered the opinion of the Court. These appeals are from the decree of the Circuit Court of Baltimore City, granting the relief prayed for to Alice E. Colquhoun, one of the complainants in the bill filed in the cause, and dismissing the bill as to the other com-plainants. The defendants below, Cowman and Kirby, are the appellants in the one appeal, and the complainants below, Ghequiere, Stearns and wife, and Walter S. ■Long, in the other. The complainants are the grandchildren of Robert Carey Long, who, by his last will and testament, admitted to probate on the 26th day of Eebniary, 1833, gave, devised and bequeathed all his property, real, personal, .and mixed, except certain legacies specially designated, to his son, Robert C. Long, Jr., and his son-in-law, John E. Wells, in trust, for the uses and purposes therein mentioned. • In the fifth clause of said will are the following ■ provisions: “.When my daughter Sophia, or the youngest of the survivors shall attain the age of twenty-one years, then ■my said trustees shall divide the net income of-the property, real, personal, and mixed, quarterly or half-yearly, among my eight children, namely: Ann, Margaret, Jane, Robert, Harriet, Sarah, Eleanor and Sophia, or among the survivors of them, and the issue of such as may be deceased, in just proportions, a whole part to each survivor, and a whole part among the issue of such as may be deceased ; and my said trustees shall continue this division from time to time, so that the part of such as decease, Avithout issue, shall be divided among the survivors, and ¹³¹ the issue of such as decease leaving issue, so long as any of the above named of iny children shall survive, and at the decease of the last, my said trustees, or such successors as they shall appoint, shall proceed to make a division by sale, or otherwise, of the property, and apportion the same among the issue of my children equally, share and share alike.” The hill of complaint avers that both of the trustees named in said will are now dead; but discloses the further fact that several of the children of the testator are still living.

It thus becomes apparent that the period has not yet arrived when, under the provisions contained in the fifth clause of said will, there is to he a division by sale, or otherwise, of the property, and an apportionment of the same among the issue of the children of the testator, equally, share and share alike. It appears, however, from the averments in the bill and the proof in this cause, that on the 22nd day of February, 1831, a hill was filed in chancery ; in which hill all the children of the testator were either parties complainant or defendant, except Robert O. Long, Jr., who, having made a deed of trust of his interest in the property, was represented by his trustees. The hill asks for “a sale of the real and leasehold estate of the said Robert Carey Long, late of the City of Baltimore, deceased, still remaining unsold and in the hands of the said trustees under his will, and that the proceeds arising from said sale he invested in safe and productive securities, subject to the same uses and purposes as are limited, declared and mentioned in and by the said will, of and concerning the said estate, and the income and revenue thereof.” In this suit the Chancellor passed a decree dated 25th of April, 1831, granting the relief prayed for in the bill of complaint, and appointing David Stewart trustee, who, under said decree, made sale of the property in question. The whole of the proceeds of this sale, exclusive of costs ¹³² and commissions, was audited to Robert O. Long, Jr., and John E. Wells, the trustees named by the testator in his will,-“in trust, for the uses and purposes of the last will and testament of Robert O. Long.” This report of the auditor was “ratified and confirmed” by the Chancellor, “and the trustee is directed to apply the proceeds accordingly, with a due proportion of interest that has been or may be received.” A deed bearing date May 5th, 1838, was executed and delivered by the trustee, David Stewart, to Edward Laroque, the purchaser, from whom, through mesne conveyances, the defendants below derived their title to the property now in controversy.

It thus becomes apparent that, by the decree of a Court of competent jurisdiction, there has been a transmutation of the corpus of the estate, and that the funds into which the realty was converted, passed into the hands of the trustees named in the will. By the provisions of the will these funds were to remain in the hands of said trustees or their successors, until the death of all the children of the testator; an event which has not yet occurred, as several are still living. Not until the death of all the children can the grandchildren claim a distribution of the corpus of the estate; and for payment to them of their portion of the accruing income, the will clearly designates the trustees or their successors as the proper parties to whom application should be made. The complainants in this cause have, however, elected to proceed against the present holders of the real estate sold'under the decree of the Chancellor.

This proceeding is based upon the assumption of a tenancy in common. Not having been made parties to the proceedings in chancery, they claim that their undivided interest in the estate was not affected by the decree. If they are tenants in common, an averment in their bill of complaint, taken in connection with the answer of the defendant Cowman, would exclude them from relief in a Court of equity. ¹³³ They aver that the defendants hold “in contravention of their rights,” or, in other words, obstruct them in the enjoyment of their rights in the property as tenants in common. The defendant Cowman, in her answer, denies that she holds “said property in contravention of the rights of the complainants;” but this negation is put upon the ground of the non-existence of such rights.

She asserts “a title clear and freed from the claim of any such persons.” Here is a distinct, unequivocal and absolute denial of the title of the complainants. In a case of this sort, when there is an assertion of title by the one party, and a peremptory denial of such title by the other, together with an exclusive perception of the profits for a long period, and other acts indicating an adverse holding by the tenant in possession, and knowledge of such adverse holding, and laches on the part of the claimant, relief cannot be afforded by a Court of equity. A Court of law is the proper forum for the determination of the controversy. In the case of Boone vs. Boone, 3 Md. Ch.

Dec., 497, the title of the complainants, claiming as co-tenants, being disputed by the defendants, the Chancellor refused to decree a partition, and sent the' complainants to a Court of law to establish their title ; citing in support of his decision, Wilkins vs. Wilkins, 1 John. Ch. Rep., 111; Cartright vs. Poultney, 2 Atk., 380; Willet, Ex’r vs. Beall, 2 G. & J., 468. In the very recent case of Hecht vs. Colquhoun, in 57 Md., 563 , a case nearly identical with the one now under consideration, the controversy growing out of the same will, this Court decided that equity could not afford relief j and that if there were any remedy it should be sought for in an action of ejectment.

In the case of Boone vs. Boone, the Chancellor passed an order designating twelve months as the period within which the complainants should proceed to establish their ¹³⁴ title at law; in the meanwhile retaining the bill for future action dependent upon the result of the suit in ejectment. No such order could be properly passed in this -cause ; it being apparent that the complainants could not, at present, enforce their alleged rights in a Court of law. • The trust created by the will of the elder Long is a subsisting trust. Pour of the children of the testator yet survive, and not until the death of all of them, does the trust terminate by a division of the corpus of the estate among the grandchildren. Until the occurrence of that event the complainants have no rights except as recipients of their portion of the income.

This they must receive from the trustees appointed by the will, or their successors. The original trustees are dead, but the duration of a trust is not dependent upon the lives of those appointed to execute it. There is no extinguishment of such estate produced by the death of the fiduciary agent. “It is a rule that admits of no exception, that equity never wants a trustee, or in other words, that if a trust is once properly created, the incompetency, disability, death, or non-appointment of a trustee shall not defeat it.” 1