Druid Park Heights Co. v. Oettinger

Irving, J., delivered the opinion of the Court. The appellant sued the appellee for the purchase money of five lots of ground, which are described in the declaration. Pleas of never indebted, and never promised as alleged, were interposed. • The case was submitted to the Court, without the intervention of a jury, upon an agreed statement of facts, which raises the question of title, the alleged want of which on the part of the appellant, the v.endor, forms the appellee’s whole defence against the claim for purchase money. The_ facts are undisputed.

Edward Griffith died seized of the property in question. By his will, duly executed and admitted to probate, he first devises and bequeaths to his “friends John J. Griffith and Charles B. Key worth, and the survivor of them, and the heirs, executors and administrators of the survivor, the sum of twenty thousand dollars, in trust and special confidence nevertheless, and to and for the uses, objects and purposes, and under and subject to the limitations and restrictions hereinafter mentioned, expressed and declared of and 'concerning the same, and ⁵¹ for no other use, trust or purpose whatever.” Then follows provisions for investment for the use of his wife, Barbara Griffith, during her life, for her sole and separate use, free from the control of any future husband she might have, and making the investments, at her death, a part of the residuum of his estate, and for distribution accordingly. After declaring this provision for his wife to be in lieu of dower, he next makes some absolute money bequests to his sister-in-law and her children. The next provision creates another trust: “ I give to my friends, John J. Griffith and Charles B. Key worth, and the survivor of them, and the heirs, executors and administrators of the survivor, the sum of one thousand dollars, in trust, that the same be placed out at interest, on good mortgage or other safe security, or vested in ground rents, loans or stocks, or other productive property, and that my old friend, Stephen Hale, be permitted and suffered, during the term of his natural life, to receive, take and apply the interest and profits arising therefrom,” &c., and after providing for the payment of his funeral expenses, gives the fund proper to his daughter.

He next gives some absolute pecuniary legacies. Then follows the clause which gives rise to this controversy: “ All the rest, residue and remainder of my estate, real, personal and mixed, wherever situate or being, without reservation or exception, inclusive of the said sum of twenty thousand dollars hereinbefore set apart for the benefit of my beloved wife, for life, or the property or estate in which the same shall be invested, I give, devise and bequeath to my said friends, John J. Griffith and Charles B-. Keyworth, and the survivor of them, and the heirs, executors and administrators of the survivor, in trust and special confidence nevertheless, and to and for the uses, objects and purposes, and under and subject to the powers, limitations and restrictions hereinafter mentioned, expressed and declared of and concerning the same, and for no other ⁵² use, trust or purpose whatsoéver, that is to say, in trust for the sole and separate use of my daughter, Mary Eletcher Griffith, during the term of her natural life, so that she be permitted and suffered during that period to enjoy the same, and the rents, issues, incomes and profits thereof, to take, receive and apply to her own separate use and benefit; and so that neither the said estate and property, nor any part thereof, nor the rents, issues, profits, income or proceeds of the same shall in any manner he liable or subject to the control, power or disposal of any future husband she may have, or he in anywise answerable for the payment of his debts, or hound for the fulfilment of his contracts or engagements; and the receipts of the said Mary Eletcher Griffith, alone, shall he good and effectual acquittances and discharges for such rents, issues, incomes and profits ; and from and immediately after the death of my said daughter, Mary Eletcher Griffith, then in trust, that all the said estate and property embraced in this section of my will shall go to and become the property of the child or children my said daughter, Mary Eletcher Griffith, may hereafter have, his, her or their heirs, executors, administrators or assigns absolutely; if more than one, .as tenants in common equally. The issue of any deceased child of the said Mary Eletcher Griffith, if any such issue then should he living, to take and have the part or proportion to which the parent of such issue would, if living, be entitled; and in case my said daughter, Mary Eletcher Griffith, shall depart this life without having a child or children, or descendant or descendants of the same living at the time of her death, then in trust fpr the use and benefit of such person or persons, for such uses and purposes as the said Mary Eletcher Griffith, whether sole or covert, shall or may, by any instrument of writing in the nature of or purporting to he the last will and testament, signed in the presence of and witnessed by three or more respectable ⁵³ persons, name, direct, limit or appoint, and if no such nomination, limitation or appointment shall he made, and the said Mary Eletoher Griffith shall depart this life without leaving a child or children, or descendants of the same living at the time of her death, then in trust, that all the said estate and property embraced in this section or clause of my will, shall go to and become the property of such person or persons as would, by the now existing laws- of the State of Maryland, be entitled to take an estate in fee simple in lands by descent from her.

And in relation to my property or estate which either my said wife, Barbara Griffith, or my daughter, Mary Eletcher Griffith, may be entitled to under this will, other than the annual income or profits thereof, or which may have been devised in trust for them, or either of them, in this will, I hereby authorize and empower my said trustees, John J. Griffith and Charles B. Key worth, or the survivor of them, or the heirs, executors or administrators of the survivor of them, to sell or lease for such term or terms of years, renewable or not renewable, as they may think proper, the whole or any part thereof, either at public or private sale, if they shall deem such sale or lease beneficial or advantageous to the parties interested.” Then follow directions to the trustees to invest the proceeds, subject to the uses, purposes and limitations declared in his will, in such way as they may find most advantageous, and to hold for the purposes declared. Then comes a provision in the following language, to wit: “ And I hereby authorize and empower my executors and trustees, and the survivor of them, and the heirs, executors and administrators of the survivor, either in their capacity as executors or trustees, or both capacities, if necessary, to sell and dispose of any part or parts of my estate, real, personal and mixed, either at public or private sale, as to them, or him, shall seem most advantageous for the purpose of raising the sum of twenty thousand ⁵⁴ dollars, hereinbefore devised in trust for the benefit of my said beloved wife for life, and for the purpose of raising the amount necessary for the payment of my debts and the specific devises, bequests and legacies hereinbefore mentioned in this, my will, and to make, execute and deliver, in due form of law, necessary deeds, conveyances and assignments for the estate and property, so sold, to the purchaser or purchasers thereof; and I do, also, hereby give to and vest in my executors and trustees and the survivor of them, and the heirs, executors and administrators of the survivor, full power and authority, and I expressly order and direct that they, or he, either in their capacity as executors or trustees, or in both capacities, if necessary, shall complete, perfect, fulfil and comply with all contracts which I have already, or that I may previous to my death enter into or make and leave unaccomplished, relative to any part or parts of my estate, as for the sale, leasing or otherwise disposing of the same, and to make, execute and deliver, in due form of law, all deeds, conveyances, leases, releases of mortgage and all other instruments of writing whatsoever, connected with such contracts or engagements, or otherwise incident and necessary to the settlement of my estate, or leasing, settling or disposing of the same, or any part thereof, under this, my will, as full and effectually as I, myself, might or could do; and it is further my will, and I do direct, that my executors shall not be compelled to force any sale of my property for the purpose of paying off any of my bequests, but direct that they shall have fiveo years to pay off the same, if they think the delay would be advantageous to my estate; and it is my earnest wish and desire, that there should be no litigation whatsoever amongst my devisees or legatees touching this my will, or any devise or bequests contained therein, being satisfied that I have done justice to them all; and in case any of my devisees should make any claim for, on account of my late brother, ⁵⁵ Stephen Griffith, he, she or they, so claiming shall forfeit all right, title, interest and benefit in and to the estate and property devised to him, her or them, in and by this my last will and testament.” And, lastly, he constitutes John J. Griffith and Charles B. Key worth to be his executors. John J. Griffith and Chas. B. Keyworth bonded as executors, and two years afterwards the letters of Key-worth were revoked for a want of counter security, and he afterwards renounced all participation in the trusts of the will.

John J. Griffith afterwards died leaving a son as his heir-at-law who was a minor. His administrators declined to execute the trusts of the said will, and they paid over to an administrator de bonis non of Edward Griffith, the funds of that estate which came to their hands as administrators of John J. Griffith. That administrator de bonis non was Andrew J. Myers. A bill was filed in the Circuit Court for Baltimore County, for the appointment of a trustee to execute the trusts created by the will of Edward Griffith, alleging the minority of the heir-at-law of John J. Griffith the trustee who had died, and the necessity for a new trustee to be appointed to secure to the several persons interested the enjoyment of their rights.

It is admitted, that all parties in interest in esse were brought in. That proceeding culminated in a decree appointing Andrew J. Myers trustee, “instead of the said John J. Griffith, deceased, with full and ample power and authority to execute the several trusts created in and by the last will and testament of the said Edward Griffith, deceased; and the said Andrew J. Myers, is hereby directed to seek a suitable mode of investment for the said sum of twenty thousand dollars in said will and the bill of complaint mentioned, and report the same for the consideration and approval of this Court, and also to proceed to the execution of his other duties in the premises,” &c. Subsequent to said decree, Andrew J. Myers, the trustee ⁵⁶ appointed, gave bond in the penalty of one hundred and fifty thousand dollars, as he was directed by the decree. He afterwards sold, at private sale, to one Sauerherg, the land mentioned in the will of Edward Griffith, being in the main unimproved property in the neighborhood of Druid Hill Park for $90,000, and it is admitted that the land would not by leasing, have produced an income at all commensurate with its value.

This sale was reported to the Court and was ratified and confirmed hy it. The appellants purchased of Sauerherg. The sole question in the cause is, was this sale by Andrew J. Myers properly authorized and valid. The appellee contends, that the will of Edward Griffith created a special and discretionary trust in the persons he names as trustees, and the heirs, executors and administrators of the survivor, and that the decree of the Court did not give to Myers, the new trustee, the power to make the sale, and could not do it — that the estate and powers passed irrevocably, under the circumstances stated hy the will and the common law to the son of John J. Griffith, the acting trustee as his heir-at-law, and that the sale made by Myers was without authority and void.

The appellants on the other hand insist, that the intent of the testator is apparent to create trusts, without intending that the persons named should, at all events and at all hazards, execute them to the exclusion of all others, or of the control of the Courts for their protection and preservation; and that it was within the power of the Court of equity when the trust would fail for the want of a competent person to execute it, coming within the description and designation of the will, to appoint a trustee to preserve and execute the trusts. And if it be conceded that there was a’discretion reposed in the trustees named in the will, which could not be reposed in a trustee appointed by the Court, still the Court could order the sale, and could direct and approve the investment, and ⁵⁷ having approved the sale which was made, it was doing a legitimate thing, and the sale is therefore good and valid; and the title of the purchaser cannot he questioned. The first thing to he ascertained is, what did the testator intend to do, or to he done; for if that can he ascertained by considering the will as a whole, that intention must be carried out, unless some imperative rule of law will prevent. The first object in the mind of this testator was to provide a fund of twenty thousand dollars, to produce an annuity for the benefit of his wife, as long as she might live ; which fund and the proceeds thereof he desired effectually to protect from the control of any future husband she might marry, and to secure from liability for the debts of such possible husband.

That fund, it appears from his will, did not exist in tangible form, but had to he raised by sales of certain portions of his estate, and for that reason he gives the persons named as executors and trustees and the survivor, and the heirs, executors and administrators of the survivor the power of sale for the purpose of raising this fund and paying certain pecuniary legacies. The next object of his bounty was his daughter, and for her he designed all the residue of his