Geoghegan v. Smith

Briscoe, J., delivered the opinion of the Court. The essential facts upon which the decision of this case must turn are undisputed, and it is conceded that the single question in the case is whether or not certain entries or memoranda, found in an old memorandum book, or diary, in the hand-writing of. James Cortland, deceased, the grandfather of the parties here in interest, constitute a valid and enforceable declaration, in trust, of real estate. The plaintiffs seek, by a bill in equity, to construe and establish this memoranda as a. valid declaration of trust against the property set out in the bill, for their benefit as against the title held by the defendant, derived from and through her uncle and grandfather.

The case was heard by the Court below upon bill, answer, exhibits and an agreed statement of facts-, and from a decree of Court, dated the 10th of June, 1918, dismissing the plaintiffs’ bill, this appeal has been taken. ⁵³⁸ A brief review of the controlling facts will be necessary for a clear understanding of the conclusion we have reached in the case, although many of them will be found stated in recent will cases in this Court, where the parties on this record were also parties in those contests. Thomas v. Cortland, 121 Md. 670 ; Smith v. Diggs, 128 Md. 394 ; Diggs v. Smith, 130 Md. 101 . James Cortland, of Baltimore City, died in the year 1910, leaving a last will and testament dated the 1st day of June, 1908, by which he devised and bequeathed the bulk of his estate, valued at about $85,000.00, to his son, James Wake-field Cortland. Mrs. Laura C. Horton, a daughter of the testator, predeceased her father, and died without issue in 1909.

Samuel Clinton Cortland, a son of the testator, died in 1904, leaving four children, who are the parties to this controversy. James Wakefield Cortland, a son, died in 1914, unmarried and without issue. The will of James Cortland was contested by the present appellants, and upon a second trial was set aside by the verdict of a jury. A compromise agreement however was subsequently entered into, whereby it appears that the caveats to the will were dismissed, and under the settlement each of the appellants and the appellee received ninedenths of “one-eighth of the value of the estate, real and personal, of which their grandfather died seized and possessed, being the same amount that each would have received if their grandfather had died intestate, less a one-tenth.

James Wakefield Cortland, the uncle of the appellants and appellee, died in May, 1914, leaving a last will and testament, by which he left the principal part of his estate to the appellee. This will was also contested by the appellants, but the will was. sustained and his estate was distributed according to its provisions, each of the appellants receiving a legacy of five hundred dollars, which they accepted. ⁵³⁹ The alleged declaration of trust is dated the 3rd of May, 1900, and was found among other papers in the safe deposit box of James Wakefield Cortland, who had been tbe executor and residuary legatee, under Ms father’s will, shortly after Ms death in May, 1914. A transcript of the alleged trust settlement here in question is filed in the case as Exhibit A, and will be set out by the reporter iu his report of the case. The alleged declaration of trust is admitted to be in the handwriting of the settlor and purports on its face to be a deed of trust of certain real estate covered by it, and then owned by tbe settlor, with James Wakefield Cortland, Laura C. Norton and Alleyn Child, as supposed trustees.

Tbe object of tbe trust settlement, assuming it to be valid, was a voluntary deed of trust of real estate without- consideration for tbe benefit of tbe children and grandchildren of the settlor, upon the terms and trusts declared by tbe entries in the paper itself and where the legal title did not pass. There are a number of formal objections; urged in the ease, to the validity of the paper or instrument relied upon as constituting a valid and effectual declaration of trust, but apart from these we are all of opinion that the appellants have failed to meet the burden of proof required of them to show that the settlor