Harrison v. Denny, Trustee

Boyd, C. J., delivered, tbe opinion of tbe Court. Tn 18 G 3, Robert A. Taylor, of tbe City of Baltimore, died, leaving a last will and testament by which,, amongst other devises and bequests, be left a portion of bis estate to four trustees, their survivors and successors, for tbe benefit of bis daughter, Louisa C. E. Taylor, during her life, and conferred upon her certain powers of disposition of tbe remainder, which will be hereinafter referred to. Tbe other three trustees having died, tbe survivor, William Pinkney Whyte, filed a petition in tbe lower Court on May 25, 1898, to have a co-ti'ustee appointed, as tbe will provided that, in tbe event of vacancies reducing tbe number below two, tbe remaining trustee should apply to a Court of Equity to fill tbe vacancy or vacancies so that there would always be two trustees in each instance provided for in tbe will—there being other trusts besides tbe one now before us. Charles F. Taylor was accordingly appointed co-trustee with Governor Whyte. ⁵¹² and npon the death of Mr. Taylor, J. Bernard Scott was appointed in his place.

After the death of Governor Whyte in 1908, on ihe recommendation of Mr. Scott and Louisa O. E. Taylor, -James W, Denny and The Eidelity Trust Company were appointed co-trustees. Mr. Scott was at his own request afterwards relieved from the trust leaving Mr. Denny and The Eidelity Trust Company who continued to act until the death of Louisa C. E. Taylor. On April 16, 1909, the two trustees filed a bill in equity in the Circuit Court of Baltimore City, with leave of the Court, which states it is “supplementary to and in the pending trust estate of Louisa C. E. Taylor now being administered under the jurisdiction of this Court.” In that bill the history of the trust is given, including a reference to an auditor’s account showing of what the corpus consisted. It is alleged that Louisa O. E. Taylor died on January 21st, 1909, unmarried, but leaving a last will and testament, by which she executed the power of disposition given to her under the will of her father of the property held in trust for her under sections 26 and 27 of his will.

A copy of her will, which is dated May 29th, 1908, is filed with the bill, a description of the property held by the trustees under sections 26 and 27 is given, and it is alleged that the real and leasehold estate belonging to said trust is not susceptible of partition and cannot be divided without loss and injury, and that it is for the best interest and advantage of all the parties that all the trust property, real and personal, belonging to the trust estate be sold, and the proceeds be divided between the parties entitled thereto, in accordance with the will of said Louisa C. E. Taylor and under the jurisdiction and control of the Court. The bill then prays that a decree may be passed authorizing the plaintiffs, or such other trustees as the Court may appoint, to convey the property known as 130 W. Pratt street to Lillie T. White, and to sell the remaining property, real and personal, belonging to the trust estate, either at pxiblic or ⁵¹³ private sale, and to make distribution of the proceeds under the direction of the Court. Some of the defendants filed answers admitting the matters and facts set out and consenting to such decree as may be right and proper. Lillie T. White and Louisa Taylor White demurred to the bill, but, the demurrer being overruled, they answered, the latter stating she had no interest in the estate beyond a legacy of $5,000, which she was willing to accept either in cash or in stocks and bonds, and Mrs. White denying that the trustees any longer had any interest in the trust estate beyond turning it over to those entitled to it, or that they had any right to have the property sold, and alleging that it could be divided in kind.

Louisa S. Taylor and Mr. and Mrs. Harrison filed an answer which we need only say denies any right of the trustees to do anything more than turn over $10,000 of the property to Bishop Bandolph in payment of a legacy to be hereinafter referred to, and alleges that the property 6an be allotted in kind. A cross-bill was also filed by Louisa S. Taylor and Mr. and Mrs. Harrison asking that the trustees be required to file a memorandum of their' receipts and outlays since the last auditor’s report; that the executors of Louisa C. E. Taylor be required to answer ; that there be a construction of the clauses of the wills of Bobert A. Taylor and Louisa C. E. Taylor which affect the trust; that all final proceedings be delayed until such construction, and they pray for general relief. It will not. be necessary to discuss separately the two bills or any of the pleadings. By section 19 of his will Bobert A. Taylor directed all the rest, residue and remainder of his estate (excepting certain property mentioned) to be divided into four equal parts or shares, and he directed how they should be disposed of.

Sections 20 to 25, inclusive, are not in the record, and we suppose they refer to property left to other children of the testator. Section 26 directs that certain properties, real and personal, be held by the trustees for the benefit- of his daugh ⁵¹⁴ ter Louisa for life, and then provides for various contingencies after her death. As that was the contingency which happened, we need only state the provision in case she left no child nor descendant. In that event the will says that “the said estate and property embraced in this section of my will is to be held by the said trustees * * * or their successors, as aforesaid.

In further trusts, to and for such of my other children, or his, her or their descendant or descendants, and in such proportions and for such estate or estates therein, in fee, or for a less estate, and with such limitations and conditions as my said daughter, Louisa C. E. Taylor, may, by her last will and testament, * * * name, limit and appoint to take the same ” By section 27, the testator directed that the balance of the fourth part of the rest of his estate bequeathed and devised in trust for his daughter be disposed of in the same way as that previously mentioned, and provided that in case his daughter deemed it proper, she was authorized and empowered to limit and appoint out of the said one-fourth part of the rest and residue of his estate the sum of ten thousand dollars to and for such person or persons as she might by her will name and appoint. Louisa C. E. Taylor died unmarried, and hence without child or descendant, and left a last will and testament in which she expressly referred to the power of disposition and control given her by her father’s will, and by Items 2 (two), 3 (throe), 4 (four), 5 (five), 6 (six) and 7 (seven) left devises, legacies and bequests to persons who are admittedly descendants of her father’s other children (and hence included in the power), and by Item 8 (eight) she left the $10,000 authorized by section- 27 of her father’s will to Bishop Randolph, with the request that he pay the same to the trustees of the Protestant Episcopal Theological Seminary and High School, Eairfax County, Virginia. Then by Item 26 (twenty-six) she left to her four nieces, Louisa S. Taylor, Charlotte T. Harrison, Mary T. Bacon and Lillie Taylor White, all the ⁵¹⁵ rest and residue of her estate, whether in pursuance of the power of disposition conferred on her by section 26 of her father’s will, or otherwise, or whether the same be her own property, to be divided among them, share and share alike, their heirs, legal representatives and assigns, absolutely and forever. It is conceded that the will of Louisa O. E. Taylor is a valid execution of the powers of disposition given her by the will of her father, and the two trustees, who are appellees, as the successors of the four named in the will of Robert A. Taylor, unquestionably have all the powers and authority which the four would have had if they had survived Louisa C. E, Taylor.

As they differ in some material respects from the others items, we will first consider Items 2 (two) and 8 (eight) of Miss Taylor’s will. 1. Item 2 (two) states that in execution of the power, and in her individual capacity so far as the property is owned by her, “I give, devise and bequeath the fee simple property, being the lot xnd improvements known as'Ho. 130 West Pratt street, in the City of Baltimore, to my niece, Mrs. Lillie T. White, daughter of my deceased brother, Henry S. Taylor, her heirs, executors, administrators and assigns absolutely and forever.” As that property was held in fee by the trust, it was undoubtedly devised in fee to Mrs. White, unless the provision which immediately follows qualified it, as is contended by some of the appellants. That provision is: “This property in fee simple hereby given to Mrs. Lillie T. White I estimate to be equivalent to about twelve thousand five hundred dollars ($12,500).” But under no rule of construction that we are a-ware of can that expression be held to limit or to be intended to limit the interest of Mrs. White in that property to the amount of that estimate. As the testatrix gave, by other items of her will, $12,500 to each'of three other nieces, who were also daughters of her deceased brother, Henry S. Taylor, it is manifest that she only intended to show that by her estimate the value of the property left Mrs. White was about ⁵¹⁶ what she was leaving to each of the other three nieces.

As the devise took effect from the date of the testatrix’s death, the devisee was entitled to it, and hence to the income from it from that time, deducting of course all proper expenses chargeable to it. The deed is not in the record, but we understand it to be admitted that the property stands in the names of the trustees who were such at the time it was conveyed, and hence it is proper that the appellees, as their successors, convey it to Mrs. White. 2. The gift by Item 8 (eight) to Bishop Randolph also seems to be free from difficulty. After reciting the power given her by her father’s will authorizing such a bequest, the will of Miss Taylor proceeded: “I therefore elect that the present trustees, the Fidelity Trust Company and James W. Denny, * * shall set apart the sum of ten thousand dollars ($10,000) out of my property or stocks I may own or possess, held by them under the trust, to the extent of ten thousand dollars,” and in execution of the power conferred on her by section 27 of her father’s will she then went on to “give, devise and bequeath the said sum of ten thousand dollars” to Bishop Randolph.

The testatrix clearly intended by that item that the trustees should set apart $10,000 worth of the trust property for this bequest. Mr. Taylor authorized her to limit and appoint out of the fourth part of his estate left for her benefit the sum of $10,000 of the princijDal of said fourth in such real or personal estate as she may elect, to be valued by the trustees, and Miss Taylor repeated that authority of her father, and elected that the present trustees shordd set apart the sum “out of my property or stocks I may own or possess, held by them under the trust to the extent of” $10-000.00. It was not merely a legacy of $10,000.00 in money out of the proceeds of sales of her property, but it was manifestly intended by Mr. Taylor and by Miss Taylor that the trustees should set apart property which they valued at that sum. There can be no reason therefore why property ⁵¹⁷ should be sold for the purpose of paying that legacy.

Such a sale would necessarily add to the costs and expenses connected with the settlement of the estate. Of course, if it is impossible to get the precise amount of the legacy out of the property which the trustees will set apart, the difference can be adjusted in cash and, if necessary to do that, sufficient property can he sold. There can he no great difficulty in arranging that. 3. Having disposed of those two items, which seem to us to be free from what has given rise to much of the controversy in this case, we will before taking up the other items of Miss Taylor’s will pause to consider the position taken by some of the appellants—that all the duties of the trustees ceased upon the death of the life tenant.

We need not repeat what we have said about the two items above mentioned, in both of wnich some active duties are required by the trustees, as indicated. While we are ready to admit that such duties as were required of the trustees during the life of Miss Taylor are no longer imposed upon them, we cannot concur in the broad assertion that they have no duties to perform. They are certainly required to turn over the estate to some person or persons, and it is equally clear that it is their duty to turn it over to those entitled to it under the will of Miss Taylor, it being conceded that the provisions of her will are in pursuance of the powers conferred by her father’s will. Neither Mr. Taylor nor Miss Taylor gave authority to anyone other than the trustees to pay the legacies, and as the property (with the possible exception of some Mr. Taylor held in his lifetime) is in the names of the trustees, or held by them as the successors of the others, it would have been a useless and more expensive course to have pursued, if either Mr. Taylor or Miss Taylor had directed anyone other than the trustees to pay the legacies.

Whether paid in cash or in kind, the trustees must act. The legacies are of such number and of such different amounts as to make that necessary. Each of two of the legatees only gets $2,000 and one gets $16,500 in ⁵¹⁸ addition to one-fourth of the residue, and of course the trustees cannot properly hand over all of the trust property to all of the legatees and devisees jointly or as tenants in common. We hold, therefore, that the trustees are required to still perform some duties—whether they be called active or something else—as they must pay the legacies, and, that being so, it is manifest that they may have to sell some of the property in their hands in order to enable them to pay out all, and no more, that each legatee is entitled to.

Again, if they cannot divide the property so as to do the full justice to all, and the legatees will not help them by agreeing to a division, what can they do but sell and pay the legacies in cash ? Of course we do not mean to apply that question to such legacy or legacies as we determine the will provides or intends shall be paid in a certain way or by turning over certain investments and properties. But there are four legacies given by Items 1, 6 and 7, amounting to $13,000 of principal, which the will does not in terms direct how they are to be paid, or out of what property. Then in order to give one or more of the legatees named in Items 3, 4 and 5 the amounts of their respective legacies ($12,500 each) it may be necessary to give them, or some of them, property or cash in addition to what we hereinafter hold shall be turned over to them.

And, as we have already said, it may be necessary to pay some cash to Bishop Randolph in order to make the precise amount of his legacy. What we mean, therefore, is that as the trustees are to pay the legacies in the manner we herein determine, they have the power to make such sales, and only such, as are necessary'for that purpose. As all of the parties are of age and all are represented by counsel, questions arising in connection with those matters ought to be readily adjusted between them and the trustees, but if they cannot be the Oourt below can determine them in pursuance of this opinion. That Court can pass all orders and decrees not in conflict with this opinion which may become necessary or ⁵¹⁹ proper in the further progress of the proceedings.

We would add that it is not our judgment that the trustees have such interest in the property as to entitle them to ask a sale on the ground that the property is not susceptible o'f partition, as contemplated by section 129 of Article 1G. of the Oode, as the bill seems to indicate was at least one theory upon which it was filed, but as it was manifestly the intention of the testatrix in executing the powers given her by her father that the trustees pay or settle the legacies, we are of the opinion that they have the implied authority to do what is necessary to that end, provided of course that they do not conflict with the provisions of the will in respect to any of the legacies or devises. That conclusion is not in conflict with any of the cases cited by counsel, and is in accord with the intention of both Mr. and Miss Taylor as indicated by their wills. Having sufficiently stated our views on that general question we will now consider the other legacies in Miss Taylor’s will. 4. Items 1 (one), 6 (six) and 7 (seven) can be considered together.

By Item 1 (one) the testatrix gave to Louisa S. Taylor, “the sum of four thousand dollars ($4,000) absolutely;” by Item 6 (six) to Louisa Taylor White “the sum of five thousand dollars ($5,000) absolutely;” and by Item 7 (seven) to Katherine A. Taylor and Mrs. Mary Mc-Evers Tucker “and to each one of them, their legal representatives and assigns, absolutely, the sum of two thousand dollars ($2,000).” There is no indication in either of those items of any intention to give those legacies out of any particular part of the estate, or of making them anything more than general pecuniary legacies. But Item 1 (one) of the will begins by saying: “Out of the' estate over which, under the last will and testament of my father, Robert A. Taylor, deceased, I have the power of disposition and control by my will, and in execution of said power, I give,” etc., and the following six items begin with substantially the same language. When that is considered in connection with the provisions of the will of Robert A. Taylor, we are of the opin ⁵²⁰ ion that, if it can be done, these legacies should be paid in kind. It is true the will of Miss Taylor says: “All