Doan v. Vestry of the Parish of the Ascension

Pearce, J., delivered the opinion of the Court. This is an appeal from a judgment of the Circuit Court for Carroll County in an action of ejectment brought by Lucretia E. Doan, George L. Van Bibber and others, against “The ⁶⁶³ Vestry of the Parish of the Ascension of Carroll County,” a body corporate of the State of Maryland, and “The Order of the Holy Cross of Westminster, Maryland,” also a body corporate of the State of Maryland, to recover thirteen undivided eighteenths of a 'parcel of land lying in Westminster in Carroll County, Maryland, and fully described in the declaration. The case was tried below without a jury on an agreed statement of facts, providing that if the Court should be of opinion that the plaintiffs were entitled to recover, then the Court should enter judgment accordingly with one cent damages and costs; but if the Court should be of opinion that the plaintiffs were not entitled to recover, then judgment should be entered for the defendants, with' costs, reserving the right of appeal to either party. It appears from the statement of facts; ist.

That Lucretia E. Van Bibber being seized in fee of the parcel of land described in the declaration under a valid conveyance thereof, erected certain buildings thereon, and on September 25th, 1892, conveyed said land and buildings to the defendant, “The Order of the Holy Cross of Westminster, Maryland,” so long as it should use said land and buildings for the corporate purposes mentioned in its certificate of incorporation, with a proviso that if it should cease to use the same for such corporate purposes, then the title thereto should revert to and vest in the said Lucretia E. Van Bibber her heirs and assigns. 2nd. That the said “The Order of the Holy Cross of Westminster, Maryland,” without ever obtaining the sanction of the Legislature of Maryland to said conveyance, entered into possession of said land and buildings upon the execution and delivery of said conveyance, and continued to use the same for its corporate purposes until April 24th, 1905, when it finally abandoned the user thereof for its corporate purposes. 3rd. That the said Lucretia E. Van Bibber died February 8th, 1896, leaving a last will and testament duly executed'and admitted to probate by the Orphans’ Court of Carroll County, whereby amongst other things she devised as follows: “Whereas I have heretofore, by deed dated September 25th, 1892, granted ⁶⁶⁴ and conveyed a parcel of land containing one acre, one rood and four perches of land more or less to ‘The Order of the Holy Cross of Westminster, Maryland,” (a body corporate of the State of Maryland) subject to the following' condition: ‘That in the event said Order of the Holy Cross should at any time hereafter abandon said premises for the uses in its certificate of incorporation mentioned, then in that event said land and premises with the buildings and improvements thereon, shall revert to me, my heirs and assigns,’as appears by said deed — and desiring to provide for the disposal of said property in the event of the abandonment and the reversion of the same, as in said deed set forth, I give and devise said land in said deed described and thereby conveyed, to the Vestry of Ascension Church, Ascension Parish, in Westminster, Carroll County, Maryland, to be used for such church purposes as the Rector of said ■ church shall or may direct, it being my purpose and desire that the said land and buildings thereon shall be under the control of the Rector of the Ascension Church, and shall be Used for such work, as he may deem for the best interest of Ascension Church.” 4th. That upon the abandonment of said land and buildings as aforesaid, the said Order of the Holy Cross of Westminster, Maryland, surrendered and delivered the actual possession of said land and buildings to “The Vestry of the Parish of the Ascension of Carroll Ccunty,” one of the defendants, which accepted said delivery and possession, and entered upon said lands and buildings and now holds the same, and has ever since rented the same by the direction and with the consent of the rector of said church, the money derived therefrom being used for the purposes of the Ascension Church, it now and always being the only church within the territorial limits of said parish, there being but one Ascension Church, and but one Ascension Parish in Carroll County, embracing the town of Westminster. 5th.

That since 'the institution of this suit, at the first session of the Legislature after the abandonment of said premises by the said Order of the Holy Cross, the Legislature gave its sanction and consent to the devise now in question in the will of said Lucretia E. Van Bibber; and sixth, that if said ⁶⁶⁵ devise is not valid and effective, then the plaintiffs are entitled to thirteen undivided eighteenths of said land and premises. It will be seen that the corporate name- and title of “The Vestry of the Parish of the Ascension of Carroll County” is not correctly given in Miss Van Bibber’s will, it being there called “The Vestry of Ascension Church, Ascension Parish, in Westminster, in Carroll County, Maryland.” It is too well settled however to admit of question that the misnomer of a corporation will not defeat a devise or bequest to it, if its identity is otherwise sufficiently certain. As was said in Womans Foreign Miss. Soc. v. Mitchell, 93 Md. 293 , “When it is clear who was intended to take, the accidental miscalling of the beneficiary’s name will not invalidate the gift.” And again in Reilly v. Union Protestant Infirmary, 87 Md. 668 , it was said, “The name is simply descriptive of the legatee.

The name is no more the legatee than is the name of an individual the individual himself.” It is too obvious for argument, upon reference to the agreed .statement of facts, that the beneficiary was intended to be “The Vestry of the Parish of the Ascension of Carroll County” and we understand that this is practically conceded by the appellant. Neither is it denied that Miss Van Bibber had the power and right to devise this property, and the sole question presented is, whether, under a proper construction of the language, the devise is valid or void. The plaintiffs assert that this devise creates a trust in its subject-matter, and that the trust thus created is void, because its objects are not ascertained, and also because, even if ascertained, it is a perpetuity; while the defendants contend that the devise is of a fee-simple estate, to the Vestry of the Parish of the Ascension, and not a trust, and that the only construction of the subsequent clause relating to the control of the said land and buildings by the rector of the parish is that it is an attempt to engraft upon the fee a naked collateral power to cut down the fee, to which the law will not permit effect to be given. Mr. Hill on his work on Trustees, 4 Amer.

Ed., star page ⁶⁶⁶ 44, says: “Before the relation of trustee can be constituted, there must necessarily exist; 1st, A subject-matter for a proper trust; 2nd, A person competent to create a trust; 3rd, One capable of holding property as trustee; and 4th, a person for whose benefit the trust property is held, who is known by the somewhat barbarous appellation of cestui que trust.1' In the case at bar the land and buildings devised are proper subject-matter for a trust; the devisor is competent to create a trust, and the devisee is capable of taking and holding property as a trustee; but there must still be found within the terms of the devise a cestui que trust. On page 55 Mr. Hill says, “The legal owner of property is prima facie entitled to its beneficial enjoyment, and in order to convert him into a trustee, there must be a sufficient indication of the intention of the parties that he should hold the estate for the benefit of others." To effect this convention there must be “a proper declaration of the trust, for it is not the legal conveyance, or transfer of the property, but the declaration of the trust, that operates in the creation of the trustee. Idem, p. 64. It is apparent therefore that wherever a trust is alleged to be created by any instrument or instruments, there must be a separation of the legal estate from the beneficial enjoyment, and that a trust cannot exist where the same person possesses both.

As expressed by Mr. Lewin in his work, on Trusts, vol. 1, p. 14, 1 Am. ed. “A trust is a confidence reposed in some other than the cestui que trust, for which the cestui que trust but has no remedy by subpoena in chancery; * * * for as a man cannot sue a subpoena against himself, he cannot be said to hold upon trust for himself. If the legal and equitable interests happen to meet in the same person, the equitable is forever merged in the legal.” Mr. Lewin is equally ex-plicit as to the necessity of a proper declaration of trust, saying upon page 83. “It is essential to the creation of a trust, that there should be the intention of creating a trust, and therefore, if upon a consideration of all the circumstances, the Court is of opinion that the settler did not mean to create a trust the Court will not impute a trust where none in fact was contemplated.” ⁶⁶⁷ In Bennett v. Humane Impartial