Fleishman v. Bregel

Johnson, J., delivered the opinion of the. Court. Anna Louise Fleishman, of Baltimore City, departed ⁸⁹ this life on December 28th, 1935. Her last will and testament was subsequently admitted to probate in the Orphans’ Court of Baltimore City, and by the third item of that instrument it is provided: “I give, devise and bequeath unto my Trustee hereinafter named and subject to the trusts hereinafter set forth, the following ground rents and properties, and also all the rest and residue of my estate: An annual ground rent of Forty-eight Dollars, issuing and payable out of property No. 1823 E. Lafayette Avenue, an annual ground rent of Sixty Dollars issuing and payable out of property No. 28, Hillcrest Avenue, an annual ground rent of Ninety Dollars issuing and payable out of property No. 3120 North way Drive, an annual ground rent of Ninety Dollars issuing and payable out of property No. 3125 Northway Drive, an annual ground rent of Seventy-five Dollars issuing and payable out of property No. 1110 Dukeland Avenue, an annual ground rent of Ninety Dollars issuing and payable out of property 3040 Arunah Avenue, and properties No. 5509 Sefton Avenue and 4537 Harford Road, said Trustee to collect the rents, income and profits therefrom, and to divide the net proceeds into two (2) equal parts, and to pay said one-half of said net income to my son William J. Fleishman, subject to the stipulation hereinafter mentioned, and the other and remaining equal one-half part of said income to my son Calvin D. Fleishman, and to continue in such manner until my youngest son, Calvin D. Fleishman, shall attain the age of Thirty years, and at such time said trust shall cease and all my said properties and ground rents above set forth, shall immediately vest in and become the property of my said two sons, William J. Fleishman and Calvin D. Fleishman, equally, as tenants in common. “Provided, however, that at the time my said son Calvin D. Fleishman, shall have arrived at the age of thirty years, or at the time of my death, should my said son William J. Fleishman be living with his present wife, then, and in that event, said trust shall continue as to William J. Fleishman, and my said trustee shall continue ⁹⁰ to pay to him said one-half of the net income, into his hands and no other, and after his death my said trustee to pay said net income unto his children then living, and if there are no children, then said trust shall cease and the entire corpus of my estate shall become due and payable to my said son, Calvin D. Fleishman.

If, however, at the time of my death, and at the time my son Calvin D. Fleishman shall have arrived at the age of thirty years, my son William J. Fleishman shall be no longer married to his present wife then said trust shall cease and my estate be vested in and become the property of my said two sons, equally, as tenants in common. “In the event that my youngest son Calvin D. Fleishman should predecease me, or depart this life before attaining the age of thirty years, said trust shall operate until my said son William J. Fleishman shall attain the age of thirty years, and from and after that time, said trust shall cease and the whole of said properties and ground rents shall become the absolute property of the said William J. Fleishman. “But in the event my said son, William J. Fleishman, shall be living with his present wife at that time, then said trust shall continue, and my said trustee shall pay the net income only into the hands of my said son, William J. Fleishman, and upon his death without said marriage being dissolved, then to his issue, and if there be no issue left, then said trust shall become a part of my general estate. “And in the event my said son, William J. Fleishman, should predecease me, or depart from this life before attaining the age of thirty years, then said trust shall operate as to Calvin D. Fleishman, as above set forth until he attains the age of thirty years, and then said trust shall cease and my said properties and ground rents shall vest in my said son, Calvin D. Fleishman, absolutely, free and clear from said trust.” William J. Fleishman, son of the testatrix, filed his bill of complaint in the Circuit Court of Baltimore City, in which he alleged: (a) The existence of said last will ⁹¹ and testament, a certified copy of which was exhibited with the bill; (b) the provisions of said third item; (c) that at the time of the execution of said will by the testatrix he was married and living happily with his wife, which condition existed after the death of the testatrix down to the time of filing the bill, and he intended continuing that relation; (d) that to the extent said provisions of Item ,3 dealt with his marital Status at the time of his mother’s death and with his future marital status, they were void and of no effect, because against public policy, further that they constituted an urge or direction on the part of the testatrix to the plaintiff to institute divorce proceedings against his wife or to discontinue their marital relations; (e) that as a beneficiary under the trust created by said third item, he petitioned the court to assume jurisdiction thereof, and to construe said third item dealing with his future marital status and decree as null and void the provisions relating thereto. The trustee under the trust created by the will of decedent, as well as the decedent’s executors and Calvin D. Fleishman, all of whom were named defendants in the bill of complaint, demurred thereto. It appeared in the bill that Calvin D. Fleishman was alive, and there was no allegation that he had attained the age of thirty years. Because of this the chancellor felt the bill had been filed prematurely to the extent that it sought a construction of the provision relating to William J. Fleishman’s share of the corpus.

He accordingly passed an order sustaining the demurrer in relation thereto, with leave to William J. Fleishman to file a supplemental bill subsequent to the death of Calvin D. Fleishman occurring before the latter attained the age of thirty years or subsequent to his arrival at that age, but overruled the demurrer to that part of the bill alleging the existence of a trust and praying the court to assume jurisdiction thereof. While the appeal is from the order, the sole objection raised relates to that part of it which sustained the. demurrer ⁹² and declined, for the reasons stated, to construe said third item. This court, in construing sections 28 to 34, inclusive, of article 16 of the Code, relating to declaratory decrees, has held that the provisions of said sections cannot be invoked to determine a moot or abstract question, and, generally speaking, it is only in cases where equity would have jurisdiction if some specific or ultimate relief were asked that the court would be justified in proceeding to a declaratory decree under those sections. Pennington v. Pennington, 70 Md. 418, 430 , 17 A. 329 ; and Wethered v. Safe Deposit & Trust Co., 79 Md. 153, 163 , 28 A. 812 .

And in McCoy v. Johnson, 70 Md. 490, 492 , 17 A. 387 , our predecessors, in considering the effect of chapter 478, Acts of 1888, now sections 28-34 of said article, said: “The jurisdiction, then, conferred by the act of 1888, can only be exercised in regard to such matters as are properly cognizable by a court of equity; and its exercise in regard to these, the act wisely provides, shall rest in the discretion of the court.” But that this general rule, to the effect that courts of equity will not determine rights which are in the future and are contingent or uncertain, is not unvarying, will appear from a consideration of Heald v. Heald, 56 Md. 300 ; Devecmon v. Shaw, 70 Md. 219 , 16 A. 645 ; Borchard, Declaratory Judgments, secs. 339, 340, 542, 543; 33 C. J., Declaratory Judgments, sec. 57. See, also, Annotations, 50 A. L. R. 42, 68 A. L. R. 110, 71 A. L. R. 1426, 87 A. L. R. 1205. In the case first cited, the bill was filed by a trustee, who under a will was directed to make large investments upon certain trusts and limitations. Grave doubts had arisen concerning the validity of those trusts and the rights of parties in regard thereto.

While it was there said that it was not the province of courts to declare the rights of parties except in cases where immediate relief could be given, yet, by reason of the peculiar conditions there present, the trustee was entitled to the aid of the court in instructing him as to his duties and pro ⁹³ tecting him in their discharge, then and in ¡the future emergencies of testator’s family, and jurisdiction was entertained. In Devecmon v. Shaw, supra, the appeal was from a decree of the chancellor construing the will of John S. Combs, and it was on appeal to this court contended that such decree should be reversed because of its premature passage. Judge McSherry, in the course of that opinion, held that, since appellants themselves had sought a construction of the particular provision of the will in the lower court and had argued it in this court, they were not in position to ask for a reversal of a portion of the decree because it was passed prematurely. He cited Heald v. Heald, supra, as authority for the proposition that under certain situations the rights of the parties in futuro would be determined.

Again in Pennington v. Pennington, 70 Md. 418 , 17 A. 329 , Judge Alvey, speaking for this court, concerning the pertinent sections of article 16 hereinbefore mentioned, said: “Doubtless in some cases the jurisdiction may be very beneficially exercised; but it should never be invoked for the purpose of having determined mere moot-points, or mere abstract or experimental questions. In all cases the court should see ¡that there is a real bona fide question for controversy involved as between the parties to the cause, and that there is an existing propriety for its immediate decision.” And a similar rule was announced in Wethered v. Safe Deposit & Trust Co., supra, but in Hawkins v. Ghent, 154 Md. 261 , 140 A. 212, 214 , the chancellor’s decree went no further than to hold valid the provision of the will of Amanda Hawkins in an attempted execution of the power of disposition reserved to her in a deed of trust from herself and husband. That decree was affirmed, and it was there said by Judge Urner: “When events shall have ended the uncertainties which make the secondary limitations contingent, the question of their validity may then be presented for decision by persons having a definitely ascertained interest in the inquiry. But it would ⁹⁴ be premature now to decide such a question at the instance of parties who cannot yet claim, and may never be able to assert, the rights to be affected by the adjudication.” From the decisions above quoted, it follows that no hard and fast rule exists for determining in what cases courts of equity will entertain jurisdiction and decide questions involving future rights, but the question is dependent upon the circumstances of each particular case, but if the need and necessity for such determination are present, relief will in no case be denied.

And apparently in other jurisdictions, where the rule against declaration of future rights is similar to that of Maryland, courts have entertained jurisdiction concerning them when a question of public policy was presented. Thus in Hawke v. Euyart, 30 Neb. 149 , 46 N. W. 422 , the will contained a provision that the corpus of the estate should be transferred to the son at the expiration of ten years if (a) he reformed hi's intemperate habits, and (b) had permanently freed himself from association with Mrs. Sadie Gladstone. Mrs. Gladstone was the son’s legal wife at the date of the last publication of the will, and although by its terms the son could not receive any part of the corpus until the expiration of ten years, jurisdiction was entertained and the will was construed; the court holding the second condition void as against public policy. See, also, Wilkinson v. Wilkinson, L. R. 12 Eq. 604; In re Devlin’s Trust Estate, 284 Pa. 11 , 130 A. 238 ; Slingerland v. Slingerland, 109 Minn. 407 , 121 N. W. 19 .

In the case at bar, appellees, while insisting in their brief that the bill in this case was