Davison v. Safe Deposit & Trust Co.

Schmucker, J., delivered the opinion of the Court. This appeal is from an order of the Circuit Court of Baltimore City sustaining a demurrer to a petition filed by the appellant in her own right and as trustee under the last will of her late husband, Calvin T. Davison. The purpose of the petition was to procure the Court’s authority for a proposed absolute transfer and delivery by the appellant to her two daughters of certain stocks forming part of the trust estate created by the will. The vital inquiry raised by the appeal is whether the proposed transfer of stocks was within the powers conferred by the will upon the appellant, and its solution requires a construction of that instrument.

The will is a brief one, and in order to make plain its entire scope and purpose we here insert all of it except its formal opening and conclusion. It is as follows: “I give, devise and bequeath all my estate, real, personal and mixed, to my wife, Grace H. Davison, in trust, for her own use for and during her natural life, with full power and authority to invest, convert and reinvest the same, and to use and to expend from time to time not merely the income, but any part of the principal, should she deem it for the best interest of herself and our children to do so.” “After the death of my said wife, I give, devise and bequeath all my estate which may remain undisposed of by her, to the Safe Deposit and Trust Company of Baltimore, in trust, to hold and invest the same, with full power to sell and convert investments and to reinvest from time to time as fully as I could, if living, looking at all times to the safety of the investment rather than the income to be derived therefrom, and ⁴⁸¹ to pay over the net income to my two daughters, Edith and Grace, in equal shares, for and during their respective natural lives, with power to each of my said daughters to dispose, by will, of one-half of the principal of this trust.” “I hereby constitute and appoint my friends, John H. Wight, of Baltimore County, and Stevenson A. Williams, of Harford County, to be the executors of this my last will and testament, with full power and authority to sell and convey any and all of my property, real and personal, for the purpose of carrying into effect the provisions of this will, and of passing my estate over to my wife as-'trustee, in condition for safe and convenient investment.” After the administration of the estate had been completed by the executors they turned over to the appellant as trustee the net balance consisting of three thousand and seventeen shares of the Davison Chemical Company of Baltimore City of the par and appraised value of one hundred dollars per share. An appropriate suit for that purpose having been instituted, the Circuit Court on May ioth, 1904, by its decree assumed jurisdiction of the trusts created by the will, and directed the appellant to proceed with their execution under its direction and supervision. In that suit the present petition was filed.

The petition after setting forth the terms of the will and, reciting the facts which we have mentioned further stated. “Your petitioner shows that by the terms of said will she is empowered “to use and expend from time to time not merely the income, but any part of the principal, should she deem it for the best interests of herself and our children to do so,” and she is advised that by the true construction of said power she may give a part of the principal of said trust estate to her said daughters 'should she deem it for their and her best interest. That since the death of the testator the elder of his daughters has married Charles Wilbur Miller and the younger has come of age, and your petitioner believes it wise that a reasonable provision should be made for them in their own right, and she has accordingly determined, in exercise of such ⁴⁸² power and authority, subject to the approval of this Honorable Court, to transfer, assign and deliver absolutely, in their respective individual right, and free of trust, to Edith Davison Miller, one of said daughters, five hundred shares, and to Grace Davison, the other of said daughters, another five hundred shares of the capital stock of the Davison Chemical Company of Baltimore County, Maryland, and she desires that this petition shall be taken and considered as an exercise of the aforesaid power.” The prayer of the petition was for an order of Court authorizing and empowering the appellant to transfer, assign and deliver the stock to heir two daughters. The appellee demurred to the petition and the Court sustained the demurrer by the order appealed from. The precise question to.be determined by us is whether the proposed absolute transfer, by the appellant to her daughters, of the stock mentioned in the petition was a legitimate exercise of the undoubted power conferred on her by the will to “use and expend not merely the income but any part of the principal (of the trust estate) should she deem it for the best interests of herself and our children to do so.” The terms of this power are very broad in so far as they relate to the extent of the estate that might be