Dodge v. Dodge

Henry, J., delivered the opinion of the Court. This appeal brings up for consideration the question as to the right of Joseph H. Bradley, substituted trustee under the last will and testament of the late Henry Henley Dodge, to sell certain real estate of the testator lying in Montgomery County. In the item of the will with which we are primarily concerned, the testator devises and bequeathes the residue of his estate to Ysidora B. M. Dodge, Maurice J. Adler, and Harrison Howell Dodge, all of the District of Columbia, “and the survivors and last survivor, and the heirs, executors, administrators and assigns of such last survivor, in trust, to have and to hold the same with full power according to their, his or her best judgment and discretion, to manage and direct the same, to sell and convey and deliver the same or any part thereof, according to the quality of said estate, to lease or encumber the same or any part thereof, with full power to invest the same or any part thereof, and to change investments, etc.,” for the benefit of his children, etc. Maurice J. Adler and Harrison Howell Dodge renounced the trust imposed by the will aforesaid, but Ysidora M. Dodge qualified as executor and trustee, and continued to act in both capacities until her death in February,' 1904. In December of that year, the appellees filed a bill of complaint in the Circuit Court for Montgomery County, to which ¹⁶⁶ all the parties in interest under the aforementioned will were made parties, and which, after reciting the foregoing and other facts, stated that all parties desired the appointment of Joseph H. Bradley, of the District of Columbia, as trustee in the place of the said Ysidora M. Dodge, deceased, and praying that he, or some other suitable person or persons, be so appointed and be invested with all the rights and powers given to the trustees mentioned in the will.

In March, 1906, Mr. Bradley was appointed trustee, as prayed, and duly qualified by filing an approved bond. Short; ly thereafter, hé sold a valuable tract of land to the Chevy Chase Club, a corporation, which, after making a cash payment of $5,000, filed objections to the ratification of the sale on the ground that the Court was without jurisdiction to appoint a trustee; that the said Bradley had no power to make said sale, and because the trust created by the will, upon the death of Ysidora M. Dodge, devolved upon one of the complainants in this suit, William M. C. Dodge, her eldest son and heir at law. Notwithstanding such objections, the Court finally ratified and confirmed the sale on September 19th, 1908, overruling the exceptions filed. From the order of ratification, an appeal was entered to this Court.

It is contended by the appellants, in the first place, that the trust created by the will was personal in its nature and incapable of transmission to a trustee appointed by the Court. This question has not infrequently been before this Court, which has uniformly held that it is purely a matter of intention, to be gathered from a consideration of the whole will and from the nature and objects of the trust created thereby, as to whether a trust is personal in its character or is annexed to the office of trustee. Among the latest decisions on the subject is that in Snyder v. Safe Deposit & Trust Company, 93 Md. 225 , where the Court, speaking through Judge Peakoe, reviews several earlier. decisions and clearly announces the rule on the subject. And in the case of Safe Deposit & Trust Company v. Sutro, 75 Md. 361, it. was held that when the ¹⁶⁷ words heirs, administrators and executors, or words of similar import, were added to the designaiton of the trustee by name it had the effect of excluding the idea of a personal trust, inasmuch as it was impossible for a testator to know who the heirs, etc., of any person named as trustee by him might be.

Applying this test to the will of Mr. Dodge, we find that in the section quoted, after the designation of the trustees by name, he adds, “and the survivors and last survivor, and the heirs, executors, administrators and assigns of such last survivor,” and similar words are used in all other sections of the will, except two. One of these exceptions is in the clause where the testator authorized the trustees to render assistance to such person as he may suggest in a letter to be addressed by him to them, “the character and amount of such assistance to be according to the judgment” of the said trustees, and the other exception is in the clause appointing the said trustees guardians for his infant children. In both of these