Jencks v. Safe Deposit & Trust Co.

Constable, J., delivered the opinion of the Court. By the last will and testament of Lambert G-ittings, who died in 1887, he left a large estate to three trustees, named therein, directing them to divide the residue of the estate into three equal parts as to value. One of said parts they were to hold for the separate use and benefit of his daughter Harriet S. G. Middleton, for life, with certain stipulated remainders over; another part for the use and benefit of another daughter, Henrietta G. Buchanan, for life, with certain stipulated remainders over, and the remaining third part for the use and benefit of three children of a deceased daughter of the testator, until they each attained the age of thirty years, at which time the trustees were to convey to each its share clear of the trust, to be held by it, for life, with stipulated remainders over. The trustees, who were also the executors of the will, took over the property, and after having divided it into three equal parts, and the daughters and grandchildren, following the provisions of the will, having made selection of the part to ⁶²⁸ be held respectively for them, proceeded to administer the three parts-as distinct and separate trusts.

The children of the deceased daughter all having reached the age of thirty have had their share turned over to them or trustees for them. The three trustees performed the duties of the trusts as to the remaining two-thirds of the estate until the death of one of the trustees, after which the two surviving continued the management up and until the death of one of the survivors. Then, until May, 1911, the sole survivor performed and managed the trusts, at which time he died. After the death of the last trustee Henrietta G. Buchanan filed a petition in the Circuit Court of Baltimore City, setting forth the above facts, and praying the Court to assume jurisdiction of the share of the trust estate of Lambert Gittings set aside for her and to appoint the Safe Deposit and Trust Company of Baltimore sole trustee for her said share of the estate.

Filed with the petition was an assent in writing, signed by all the children of Mrs. Buchanan holding vested interests in the estate and recommending the appointment of the said Safe Deposit and Trust Company of Baltimore as sole trustee. The Court thereupon assumed jurisdiction of the trust, and appointed the Safe Deposit and Trust Company of Baltimore trustee thereof, with the same powers, duties and responsibilities in regard to the trust estate as were vested in or imposed upon the former trustees. The substituted trustee afterwards sold to Francis M. Jencks, the appellant in this case, an unimproved lot of ground belonging to the trust estate,, and reported the sale for ratification to the Court. The purchaser, or appellant, filed exceptions to the ratification of the sale.

The ground of his exceptions was that the substituted trustee could not convey a good marketable title to the property reported as sold, because (1) under the will of Lambert Gittings three trustees were required to act, and, therefore, one trustee could not exercise the powers under the will; (2) all parties in interest were not made parties -in the proceedings in which the sub ⁶²⁹ stituted trustee was appointed, and (3) the trustee or trustees had no power of sale over the corpus of the trust estate. The Court overruled the exceptions and ratified the sale, and the appeal is from that order. The contention of the appellant, that there must he three trustees to exercise the powers under the will, is based upon the wording of the first paragraph of the will, which is as follows: “I appoint my three sons-in-law, James Simons, John Izard Middleton and James Hollis Buchanan, my executors and trustees, for the purposes hereinafter mentioned, and in the event of the death or failure of either to act, then, in his or their stead, either of my friends, George H. Williams, Bichard J. Gittings, George M. Johnson, Thomas P. Jenkins, or my young friend, A. 0. Cazenove, so as not to have more or less than three.

I then hereby devise and bequeath all my estate, real, personal and mixed, to my three sons-in-law, James Simons, John Izard Middleton and James Hollis Buchanan, or in the event of either one or more of them declining or intentionally failing to act or accept the trust, then in his or their stead, either one or more of the other friends previously named as may be preferred and chosen by my two daughters, Harriet S. G. Middleton and Henrietta G. Buchanan, and my granddaughters, Eleanor A., Louisa and Fannie Simons, or their father or other competent, discreet friend choosing for them, my grandchildren Simons, or such of the three as may accept the trust hereinafter mentioned, and the survivor or survivors of them, their heirs and assigns, forever.” Having used the words “so as not to have more or less than three” the claim is that the intention of the testator to have three trustees at all times is clear and binding. The appellee contends and with some force, that the use of the word “trustee” in the first sentence of this paragraph was a mere inadvertence. That this part of the paragraph was dealing ⁶³⁰ with the appointment of executors only and that the language referred to had only reference to the executors. They ask, why, if in this first sentence he meant to appoint the trustees as well as the executors, did he