Devecmon v. Shaw

McSherry, J., delivered the opinion of the Court. The record now before us brings up for review a decree of the Circuit Court for Alleghany County, construing the will of the late John S. Combs. The opinion filed by Chief Judge Alvey in the Court below. ²³⁵ is full, clear and satisfactory, and nothing we might say could add to its conclusiveness. We accordingly adopt that opinion as our own.

It is, however, necessary to notice a question raised in the argument in this Court. It was suggested that the part of the decree which determines that the daughter of the testator took a fee in the realty devised, and an absolute interest in the personalty bequeathed to her, defeasible upon the happening of the contingencies mentioned in the will, ought to he reversed because prematurely passed, inasmuch as no one of those contingencies has yet come to pass. In support of this the case of Heald vs. Heald, et al., 56 Md., 300 , and the case of Woods, et al. vs. Fuller, et al., 61 Md., 457 , have been referred to. The application of the doctrine announced by £hese cases depends to some extent upon the circumstances under which it is invoked.

In the first of these cases it was said: “ If there is no matter in dispute, and the application is to do nothing more than to declare future rights, in such a case Courts will not entertain jurisdiction.” But as there was an application by a trustee under a will, seeking the aid of the Court “ to instruct him as to his duties and to protect him in the discharge of them,” the hill was entertained, and the Court proceeded to construe the will and to determine the rights of the parties thereunder. The second case arose upon a hill filed by executors, and the Court dismissed it because there were no questions presented apart from the ordinary ones incident to every administration, which the Orphans’ Court was the proper tribunal to pass upon. This last case is broadly distinguishable from the one at bar; and the first one, under the conditions there existing, is an authority sustaining the converse of the proposition contended for by the appellants in this case. By the will of Mr. Combs there were trustees appointed to collect the rents and income from the real ²³⁶ and personal estate given to his daughter. ' These trustees are charged with