Hecht v. Colquhoun

Miller, J., delivered the opinion of the Court. This appeal is from an order overruling a demurrer to a bill in equity filed by the appellees against the appellant and one Jacob Seeger. We have recently decided in the case of Chappell vs. Funk, p. 465 ante, that an appeal will lie from such an order where the demurrer goes to the entire bill. The motion to dismiss in the present case is therefore overruled.

The complainants are grand-children of Robert Carey Long, who died in 1833, seized in fee of real estate in the City of Baltimore, including an undivided moiety of a small lot of ground at the córner of Baltimore and Sharp streets. He left a will by which he devised his interest in this lot, with other property, tó his son, Robert Carey Long, Jr., and his son-in-law, John E. Wells, in trust, for the uses and purposes thereinafter mentioned, and among the trusts to which the property is subjected is ⁵⁶⁵ that mentioned in the following clause of his will, viz., “Fifth. When my daughter, Sophia, or the youngest of the survivors shall attain the ago of twenty-one years, then my said trustees shall divide the net income of the property, real, personal or mixed, quarterly or half-yearly among my eight children, namely, Ann, Margaret, Jane, Robert, Harriet, Sarah, Eleanor and Sophia, or among the survivors of them, and the issues ot such as may be deceased, in just proportion, a whole part to each survivor, and a whole part among the issue of such as may he deceased, and my said trustees shall continue this division from time to time, so that the part of such as decease without issue shall be divided among the survivors, and the issue of such as decease leaving issue, so long as any of the above named children shall survive, and at the decease of the last, my said trustees, or such successors as they shall appoint, shall proceed to make a division by sale or otherwise of the property, and apportion the same ampng the issue of my children, equally, share and share alike.” And by the tenth clause the testator directs his said trustees, “so long as my children shall survive, to continue the mode of payment of their respective portions, namely, to pay each in pei’son,” and then declares that his said trustees “ shall have power to designate their successors, provided the Orphans’ Court of Baltimore County approve thereof, and in the event of their dying and failing to name their successors, said Orphans’ Court shall appoint trustees, having regard to the wishes of a majority of my children, expressed in writing to them on the subject.'’ The bill avers that four of the children named in this fifth clause have died leaving issue, who are the complainants, hut that the other four are still living, though childless. It is plain, therefore, that as between trustee and cestuis que trust, the trust created by this clause is a still continuing and subsisting trust.

It is also averred, that ⁵⁶⁶ both the trustees are dead, one having died in 1838, and the other in 1849, but the bill is silent as to whether or not their successors have been designated or appointed according to the power contained in the tenth clause, and there is uo. specific prayer for the appointment of any one in their place. If it had been the purpose of the complainants to ask a Court of equity to supply a trustee to manage the trust, in the place of those who have died and in default of appointment of their successors according to. the terms of the will, it would have been wholly unnecessary, and so far as we can see from the averments of this bill, improper to make these defendants parties to such a proceeding. Such appointment could have been made simply upon the application of the complainants themselves, without adverse proceedings against any one, and the trustee so appointed would be the proper party to protect their rights and interests under this trust, and to assert title to the property against the defendants, or any other stranger in adverse possession thereof. What then is the case made by this hill (which was not filed until July, 1880,) against these defendants?

It charges, that, the premises in question “ with the improvements thereon are held under pretence by one Henry C. Hecht and Jacob Seeger, who hold in contravention of the rights of your orators; that they obtained their title through sundry mesne conveyances from one David Stewart, who was appointed a trustee in a cause in chancery; that