Kennard v. Bernard

Briscoe, J.,. delivered the opinion of the Court. The controversy in this case involves the construction of certain. clauses of the last will and testament of Samuel S. Clayton, late of Baltimore City, deceased. The material facts' as disclosed by the record and upon which the questions to be decided arise, are as follows: Mr. Clayton died in January, 1896, leaving real and personal estate of large value, located in Maryland and Virginia. A portion of this property he owned jointly with a son, James E. Clayton.

By the fourth clause of his will he devised as follows : “As to all the rest and residue of my property (except such as I may own jointly with my son James E. Clayton) I desire my said trustees—my son James E. Clayton and the Baltimore Trust and Guarantee Company—to have absolute and exclusive control and management, with full power to sell, mortgage, pledge, exchange, develop, reinvest or otherwise deal with or dispose of the same or any part thereof either at public,or private sale in their absolute discretion and to transfer and convey any and all of said rest and residue, whether real or personal property, when as they in their best judgment and discretion may deem it advisable to do so, without the intervention of the Orphans’ Court, or any other Court in any way, whether by previous order or subsequent ratification and without the-necessity for the joinder of any cestui que trust in any transfer or conveyance thereof and without any obligation on the part of any grantee or transferree to see to the applica ⁵¹⁵ tion of the purchase-money. It being my intention that my said trustees shall have the same power and discretion in the management, control, development, investment, reinvestment, repair and disposition of the property so left in trust to them as if it was their own property.” By the fifth clause, he gave and devised as follows: “That portion of my property of every kind which I own jointly with my son, James E. Clayton, I give, devise and bequeath to my said son as sole trustee, with the same absolute power and discretion in every way, in connection therewith as is granted by the fourth clause of this my will to my said son and the Baltimore Trust and Guarantee Company, trustees for that portion of my property owned by me separately. And I desire and direct my said son, in the event of the sale of any portion of the property so owned by us jointly, to pay over that portion of the proceeds of such sale which belongs to my estate, to himself and the Baltimore Trust and Guarantee Company to be invested by them and held subject to the same trust hereinbefore declared as to the other property left to them in trust.” James E. Clayton, died in June, 1902, leaving a last will and testament by which he appointed the appellants as executors and trustees giving power to the trustees to dispose of his property, according to certain trusts declared therein. The appellants were subsequently appointed by the Circuit Court of Baltimore City, trustees, for the joint property held by James E. Clayton as sole trustee, under his father’s will, with the like power and authority as was given the original trustees.

On the 18th of March, 1903, the appellants, as such trustrees, sold to the appellee an undivided half interest in fee in a certain unimproved lot, in Baltimore City, being the interest of Samuel S. Clayton, in a part of the property, held jointly, with his son. Subsequently the appellee as purchaser of the property filed exceptions to the ratification of the sale and alleged as reasons therefor; that the property sold to the appellee was a portion of the property which Samuel S. Clayton ⁵¹⁶ owned jointly with his son, James E. Clayton, áhd under the terms of the will the power of sale vested in the testamentary trustee, James E. Clayton, was a special confidence reposed in-him as trustee, and did not pass to the substituted trustees or either of them, and that a merchantable title in this case could only be made an equity proceeding when all the parties in interest are before the Court. The Court below sustained the exceptions and vacated the sale, and from this order the appellants have appealed. Upon the first question here raised this Court,in the recent case of Mercer v. Safe Deposit and Trust Co., 91 Md. 119 , held, if it